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Providing Effective Habeas Counsel for Indigents in Capital Cases

NCJ Number
Justice System Journal Volume: 21 Issue: 1 Dated: 1999 Pages: 81-87
Candace McCoy; Illya Lichtenberg
Date Published
7 pages
This paper examines States' compliance with those provisions of the Antiterrorism and Effective Death Penalty Act of 1996 that pertain to the encouragement of adequate compensation for attorneys who handle death penalty habeas corpus cases.
The act offers States a quid pro quo to induce the provision of counsel; if a State meets the act's several requirements for provision of postconviction representation, it receives several advantages in Federal habeas review. These advantages include a 180-day limitation period for filing a Federal habeas petition; limits on the Federal courts' power to entertain claims not previously exhausted by presentation to State courts; and expedited decisions on habeas petitions by the Federal district courts and courts of appeals. To receive these advantages a State must comply with the requirements for provision of postconviction counsel set forth in either 28 U.S.C. 2261 or 2265. In Federal court decisions published in the years immediately after the act's passage, most concluded that, in some respect, a State's system of providing counsel was deficient when measured against the act's requirements. The three most common deficiencies noted were inadequate provisions for compensation of counsel, a lack of standards of competency of counsel, and the offer of counsel was illusory. Subsequent decisions have modified or criticized some of these holdings, but none have been reversed on the merits of what constitutes adequate compensation under the act. Several Federal courts have not hesitated to set out explicit requirements for amounts of compensation necessary for postconviction counsel, high standards of competency, and timeliness of actual appointments. This paper concludes with suggestions for States that wish to have the benefits of the act.


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