Page 249 - Ad Hoc Report June 2018
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 “You can’t come in and represent this fellow because you’re from out of state and we don’t want to pay to bring you in from out of state.” These were people who actually knew what they were doing....The lawyers quite gra- ciously said, “We won’t charge you for traveling to Missouri to represent this person. We’ll just charge you for our time.” [The court] still wouldn’t appoint them. They entered pro bono, and [the court] still [wouldn’t] appoint them....The Eighth Circuit affirmed that, and, of course, the Supreme Court reversed and said you’ve got to appoint the lawyers. Then, the lawyers sub- mitted a budget of $161,000, and the District Judge gave them $10,000.965
The refusal by judges in some districts and circuits to allow panel attorneys or defenders from CHUs outside of the district or the circuit to be appointed to repre- sent the petitioner may have resulted in greater costs, and almost certainly lowered the quality of the petitioner’s representation. Despite the need for high-quality, cost-effective counsel, “some circuits have categorically barred federal defenders [even those within the circuit] from representing any habeas petitioners under any circumstances...Thus, the community of lawyers with the most federal experience, independence, and access to resources has been excluded from litigating federal habeas issues.”966
Professor Sean Kennedy wrote to the Committee that, “All these administrative restrictions on federal habeas counsel chill zealous, high-quality representation in death penalty cases and interfere with counsel’s ability to make key strategic decisions that carry huge consequences for the client. Consequently, I urge this Committee to recommend that the administrative restrictions be abolished forthwith.”967
Inadequate Funding
As the Supreme Court has repeatedly affirmed, “death is different,”968 and so any structural or policy impediments to full and effective representation are inimical to a criminal justice system that values fairness, process, and rule of law. The issues
965 StephenBright,President,SouthernCenterforHumanRights,PublicHearing—Miami,Fla.,Panel 4, Tr., at 3–4.
966 ProfessorSeanKennedy,CenterforJuvenileLaw&Policy,LoyolaLawSchool—LosAngeles, Public Hearing—Birmingham, Ala., Panel 3, Writ. Test., at 1 (provided to the Committee).
967 Id.
968 See,e.g.,Furmanv.Georgia,408U.S.238,286–89(1972)(Brennan,J.,concurring)(“[d]eathisa
unique punishment”; “[d] in a class by itself”); Gregg v. Georgia, 428 U.S. 153, 188 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (“penalty of death is different in kind from any other punishment” and emphasizing its “uniqueness”); Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (“penalty of death is qualitatively different from a sentence of imprisonment, however long”); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (“qualitatively different”); Spaziano v. Florida, 468 U.S. 447, 459 (1984) (“qualitative difference of the death penalty”); id. at 468 (Stevens, J., concurring in part and dissenting in part) (“death penalty is qualitatively different . . . . and hence must be accompanied by unique safeguards”); Wainwright v. Witt, 469 U.S. 412, 463 (1985) (Brennan, J., dissenting) (citing “previously unquestioned principle” that unique safeguards necessary because death penalty is “qualitatively different”).
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 205
 States unless approved by the Conference itself.

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