Page 23 - Ad Hoc Report June 2018
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 confidential client information at risk of disclosure. Even ad hoc policy decisions can have a profound effect. The AO recently prohibited public defenders from represent- ing clients in non-capital clemency petitions, despite the fact that these attorneys have knowledge and experience that would be of tremendous benefit to individuals facing an important determination that relates directly to their criminal conviction.
Troubling Deficiencies in Capital Habeas Cases
This Committee explored several specific areas of defense practice—all of which
are addressed in the full report—but one area stands out as especially troubling: the current state of public defense in capital habeas cases. The underlying problems in these cases, which concern possible constitutional violations or wrongful convic- tions, are not dissimilar to those already discussed, but the potential consequence of inadequate representation is plainly dire.
The rate of compensation for panel attorneys in habeas cases, $185 an hour, is higher than the rate for non-capital felony cases but in no way sufficient. Moreover, the presumptive cap on expert services has not risen since 1996, when it was insti- tuted. Because capital habeas cases often require thorough re-examination of the orig- inal trial—what counsel did and failed to do—the current cap is unrealistically low.
Separately, many of the federal judges presiding over these cases are not familiar with the nature of capital habeas representation, which can inadvertently hamper the quality of defense. For example, if a judge doesn’t recognize the need for in-depth investigation to mount an effective challenge, that judge may not approve necessary expert expenses. Similarly, voucher cutting in these cases is a widespread concern because many judges don’t grasp the extent of work required to submit an effective and complete habeas petition. Such variation among individual judges, coupled with differences in policies among the circuit courts, leads to seri- ous discrepancies in the quality of defense available to capital habeas defendants across the country. In addition, few defense attorneys are qualified to handle these cases, and the combination of below-market rates and prospect of dramatic voucher cutting creates a financial disincentive to accept cases.
The short statute of limitations for capital habeas petitions, 12 months, cre- ates other problems. Frequent delays in appointing counsel limit the time attorneys have to prepare a petition, and some judges have responded negatively to attempts to expedite appointments. The limited time frame combined with heavy caseloads means that habeas attorneys miss deadlines, sealing their clients’ fates. Recently, nine defendants in Texas were scheduled for execution because their attorneys failed to file habeas petitions on time.13 Since the passage of the Antiterrorism and
13 RichardBurr,TexasRegionalHabeasandAssistanceProject,PublicHearing–Birmingham,Ala.,Panel 3, Writ. Test., at 2. (See Lise Olsen, [Texas Death Row] Lawyers’ Late Filings can be Deadly for Inmates: Tardy Paperwork Takes Away Final Appeals for 9 Men, 6 of Whom Have Been Executed, Hous. Chron., Mar. 21, 2009.)
No recommendation presented herein represents
the policy of the Judicial Conference of the United 2 0 1 7 R E P O R T O F T H E A D H O C C O M M I T T E E T O R E V I E W T H E C R I M I N A L J U S T I C E A C T xxi
The underlying problems in these cases, which concern potential constitutional violations or wrongful convictions, are not dissimilar to those already discussed,
but the potential
consequence of inadequate representation is plainly dire.
 States unless approved by the Conference itself.

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