Terry Lenamon on the Death Penalty : Lawyer & Attorney Terry Lenamon on Capital Punishment Defense, Death Penalty Trials & Appeals | Law Firm

Faced with the problem of how to provide legal counsel to those who cannot afford to hire their own attorney after Gideon v. Wainwright, states have found three different approaches to meeting this constitutional mandate: (1) public defender programs (nonprofit organizations with staff attorneys assigned to the indigent); (2) contract counsel (the contracting firm or entity agrees to take all indigent representations for a set time period); and (3) assigned, court-appointed private practice lawyers. 

They are not mutually exclusive models; for example, a state can have a public defender system as well as having court appointments of attorneys in private practice. Sometimes, things are so varied within a state that the method of providing lawyers to the indigent will depend upon the county.  No one single answer to the problem of providing legal counsel to the poor has proven efficient or cost-effective since Gideon came down. 

Indigent Defense in Florida

In Florida, every county with a population of 35,000 or more must have a public defender program. However, as the 2009 Justice Denied report by the Constitution Project revealed, county budgets across Florida have been slashed steadily over the years, and public defender programs have lost millions of dollars in these budget cuts. Some Florida counties today actually charge indigent convicts fees to cover litigation costs. Others are refusing to take on new indigent defense cases, telling the courts that to do so will be unethical (and unconstitutional) as they simply cannot provide effective counsel given their limited resources. 

The financial challenges of providing indigent defense have been serious for over a decade. They have only been exacerbated by continuing judicial expansion of the constitutional right to counsel for the indigent defendant, e.g., to include juveniles (In re Gault, 387 U.S. 1, 1967); those charged with misdemeanor crimes that carry jail sentences (Argersinger v. Hamlin, 407 U.S. 25 (1972)); and indigent defendants in misdemeanor cases resulting in suspended or probated sentences ( Alabama v. Shelton,  535 U.S. 654 (2002)).

Combine the expansion of the right with the fact that the right to counsel begins the minute that an individual invokes that right, Edwards v. Arizona, 451 U.S. 477 (1981) (which most criminal defendants know is the wise thing to do before answering any questions from the police), and you have a lot of demand for effective legal counsel without enough supply. 

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Justice Raoul Cantero III knows his stuff: he's served as a justice on the Florida Supreme Court. So does Mark Schlakman, who has been a senior program director at the Center for the Advancement of Human Rights at Florida State University. When these two team up to write an opinion piece, you betcha I'm gonna read it -- and hopefully a lot of other people will, too.

Cantero and Schlakman are Blunt: the Current Florida Death Penalty System is "FRAUGHT WITH PROBLEMS"

Essentially, these two experts in the field have taken the American Bar Association report that analyzed the state of Florida's death penalty system as it stood three years ago, and they've compared it to the realities of the system today.  It wasn't a namby-pamby report:  the ABA put together a team of the highest quality experts in the field, and financed their TWO YEAR study of the Florida system.  Surely some of what they recommended (and their recommendations had to be unanimous to be included) would be respected and implemented, right?  Nope.

Florida fails in the comparison. 

According to their op-ed piece, Cantero and Schlakman discovered that neither the Florida Bar Association nor the State of Florida have done much of anything in response to the ABA's report.  Nada, really.  Meanwhile, since 1973, they note that Florida has exonerated more Death Row inmates than any other state.

 The op-ed itself is R. Cantero & M. Schlakman, "State's death penalty system still 'fraught with problems,'" Florida Times-Union, Sept. 25, 2009 (op-ed), 

Here are some highlights: 

"Among the report's findings was that legal representation of death penalty defendants in postconviction proceedings is often abysmal."

"...called upon the Legislature to revisit the death penalty statute."

"The report also expresses concern about socioeconomic and geographic bias. Prosecutors from one circuit might opt for the death penalty while prosecutors from another might opt for life without parole."

"Circuit judges, who preside over capital cases, while nonpartisan and subject to the judicial canons, are not completely immune from such dynamics, since they also face the voters periodically."

Please read this opinion piece and share it with others.  It's important. 

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