"Hire A Lawyer, Escape the Death Penalty?"

The title of this post is the title of a new Issue Brief authored by Scott Phillips coming from the American Constitution Society for Law and Policy. This new paper on the administration of the death penalty is available at this link, where it is summarized this way:

In this Issue Brief, Professor Phillips describes the results of his study to test the claim made by death penalty opponents that wealthy defendants who hire legal counsel are exempt from capital punishment.  His research focuses on Houston, Texas, and surrounding Harris County, which is the county with the largest number of executions in the United States and the largest jurisdiction that uses court-appointed lawyers instead of a public defender to represent defendants who cannot afford an attorney.  Professor Phillips compares the outcomes in cases where the defendant hired a lawyer with cases where the defendant had a court-appointed lawyer and finds that, “[h]iring counsel for the entire case not only eliminates the chance of death, but also dramatically increases the chance of an acquittal.”  He also finds that “[h]iring counsel for a portion of the case substantially reduces the chance of death,” and “hiring counsel does not appear to be the province of the wealthy because virtually all capital defendants seem to be poor.”

Professor Phillips argues that these dramatic findings “are not an indictment of appointed attorneys, but rather an indictment of the structural deficiencies inherent in the appointment method of indigent defense.”  He discusses these deficiencies and reform efforts in Texas aimed at addressing them.  He believes that the reform efforts have not succeeded, however, and argues that “the solution is to create a public defender office with resources proportionate to the DA’s office.  Such a proposal is not meant to suggest that a public defender office would be a panacea.  But a public defender would reduce differential treatment and eliminate the structural deficiencies inherent in the appointment method.” He concludes by asserting that, “Houston’s distinction as the capital of capital punishment creates a special obligation to provide the most rigorous system of indigent defense possible.  The appointment method does not – and arguably cannot – meet such a standard.”