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Indigent Defense or Indigent Offense?

Indigent Defense or Indigent Offense? The Unashamed Jurisprudence of Barring Relief for Death-Sentenced Inmates Based Upon "Garden-Variety" Ineffectiveness of Counsel

Mark E. Olive*

The full text of this article can be found in PDF form here.

“[I]n our adversary system of criminal justice, any person haled into court,
who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is
provided for him. This seems to us to be an obvious truth.”

This truth has not been obvious in capital state post-conviction and federal
habeas corpus proceedings. The law has crept from no right to counsel in
capital post-conviction proceedings to a statutory right. While many, if not
most, attorneys who handle such cases are highly competent and dedicated,
they do not have to be under Supreme Court precedent. A person today may be
executed due to his or her attorney’s mistakes and incompetence. We should
demand the provision of effective counsel in life or death proceedings.


Capital and other state criminal cases generally follow a nine-step process,
illustrated here:

Mark Olive Graphic

After trial and direct appeal (Steps 1–3), a capitally sentenced defendant may
seek relief from constitutional violations like state suppression of material,
exculpatory evidence, juror misconduct, and the ineffectiveness of trial
counsel by filing a petition for federal habeas corpus relief under 28 U.S.C. §
2254 (Steps 7–9). However, if there is an available state court remedy for the
alleged violation, then the petitioner is required to file first in state court to
“exhaust” the claim (Steps 4–6). Once a claim is exhausted and relief is
finally denied in state court, it is ripe for federal habeas corpus review (Steps


In the 1970s and 1980s, there was little to no funding for state and federal
post-conviction representation. What was provided in capital cases was on a
pro bono basis by attorneys, law firms, and non-profit organizations. Now all
states with the death penalty, except Alabama and Georgia, provide counsel in
capital post-conviction proceedings (Steps 4–7) via legislation, not as a matter
of constitutional right.

There was no federal right to counsel in capital habeas corpus proceedings
(Steps 7–9) until 1988 when Congress passed the Anti-Drug Abuse Act. With
this Act, Congress provided petitioners who seek to have their convictions and
death sentences vacated in proceedings under sections 28 U.S.C. §§ 2254 (state
judgment) or 2255 (federal judgment), but are financially unable to obtain
adequate representation, with “the appointment of one or more attorneys.” In
Martel v. Clair, the Court addressed Congress’s § 3599 concerns and

The new statute grants federal capital defendants and capital habeas petitioners
enhanced rights of representation, in light of what it calls ‘the seriousness of
the possible penalty and . . . the unique and complex nature of the litigation.’
§ 3599(d) (2006 ed.). . . . And the statute aims in multiple ways to improve the
quality of representation afforded to capital petitioners and defendants alike.

Congress intended “to promote effective representation” in these proceedings,
a goal § 3599 fulfills in “myriad ways."

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*Mark E. Olive is an attorney in private practice in Tallahassee, Florida, who was an invited speaker at the 2016 Richard J. Childress Memorial Lecture at Saint Louis University School of Law. This article is an expanded version of some of Mr. Olive’s comments about indigent defense in capital post-conviction cases. Mr. Olive has been involved in representation of individuals facing the death penalty at trials, on appeals, and in post-conviction proceedings since 1980.