The Death Penalty in the OSCE Area 43
sentence if the federal court determines that the constitutional rights of the defendant
were violated by inadequate representation.61
Practical measures are also in place to provide quality representation. In the federal
system, upon indictment for a capital offence, an indigent defendant is entitled to the
appointment of two counsel, one of whom must have expertise in the law applicable
to capital cases. Federal law also sets minimum standards for the experience of such
counsel. The overwhelming majority of states with capital punishment have also established standards or practices to ensure that competent counsel are assigned.
In addition, the federal Bureau of Justice Assistance, a component of the United
States Department of Justice, is funding a Capital Case Litigation Project to provide
training to defence counsel, state and local prosecutors, and state trial judges to improve the quality of representation and the reliability of verdicts in state capital cases.
The training will focus on investigation techniques; pre-trial and trial procedures, including the use of expert testimony and forensic science evidence; advocacy in capital
cases; and capital-case sentencing-phase procedures. National grantees include the
National District Attorneys Association, the National Legal Aid and Defenders Association, and the National Judicial College. Eligible state grantees include criminal
justice agencies, such as the court system or a public defender’s office, and state bar
associations.
‘Death-Row Phenomenon’
The often lengthy time between imposition of a death sentence and actual execution
has led to claims that convicts suffer from cruel and unusual punishment as a result
of the delay. This argument has had no legal success in the United States. Although it
has not ruled on the merits, the Supreme Court has denied review of appeals courts’
decisions rejecting this claim at least four times.62 The delay is typically the result of
the convict’s own insistence on the myriad of legal protections and layers of court
review described above to ensure that his conviction and sentence were constitutionally determined and imposed. As Justice Thomas has stated, “I am unaware of any
support in the American constitutional tradition or in this Court’s precedent for the
proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.”63
61
See, for example, Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins v. Smith, 539 U.S. 510 (2003); and Williams v.
Taylor, 529 U.S. 362 (2000), in which the Supreme Court held that, in various circumstances, failure to present mitigating
evidence at sentencing constituted ineffective assistance of counsel warranting reversal of the death sentence.
62
Lackey v. Texas, 514 U.S. 1045 (1995); Elledge v. Florida, 525 U.S. 944 (1998); Knight v. Florida, 528 U.S. 990 (1999);
Foster v. Florida, 537 U.S. 990 (2002).
63
Knight, 528 U.S. at 990.
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