ON MARCH 25, 1931, nine teen-age black boys -- one was 13, another 14 -- were arrested in Scottsboro, Ala., and charged with the rape of two white girls. The defendants were arraigned on March 31 and tried one week later. While a number of lawyers were in the courtroom on the morning of the trial and at least two said they would do what they could to assist the defendants, no attorney was formally appointed to represent them, nor was a continuance granted so that an attorney could be hired who would investigate and prepare for trial. In a single day, eight of the defendants were convicted and sentenced to death.
The following year, the Supreme Court overturned the convictions on the grounds that "in a capital case, where the defendant is unable to employ counsel and is incapable adequately of making his own defense . . . it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law." The Scottsboro boys' case is a landmark ruling emphasizing the special obligations of courts to ensure effective representation by counsel in capital cases. All the states that have the penalty now appoint lawyers for indigents accused in all serious criminal cases, but few have gone that extra step to provide help to those on death row in court proceedings after the first level of appeals.
Last week, the U.S. Court of Appeals for the Fourth Circuit dealt with that issue in a case involving the state of Virginia. A U.S. district court in Richmond had ruled that the denial of appointed counsel to death-row inmates pursuing habeas corpus remedies after losing appeals of their convictions is an unconstitutional deprivation of due process. The court of appeals overruled, holding that the state is not obligated to provide this assistance even though these proceedings are a matter of life and death. What are the chances of overturning a death penalty through a habeas corpus proceeding? Very good. For example, in the 11th Circuit, which encompasses Alabama, Florida and Georgia, new trials or new sentencings were ordered in more than half the cases where federal habeas corpus petitions were filed. Without the assistance of lawyers, prisoners have a slim chance of successfully pursuing this remedy.
In Florida, California and North Carolina, special funds have been set up to be used to help death-row inmates in post-conviction proceedings. The American Bar Association has also taken steps to recruit and support lawyers willing to take on these cases. Virginia, which ranks 49th among states in fee schedules for lawyers appointed to represent the indigent, must do more. This will not be compelled by the courts, but in justice to the dozens of men whose lives are at stake, state leaders should acknowledge that capital cases are extraordinary and provide the special help that is needed.