Citation

Phillips S. J. Crim. Law Criminol. 2009; 99(3): 717-755.

Copyright

(Copyright © 2009, Northwestern University School of Law)

DOI

unavailable

PMID

unavailable

Abstract

Death penalty opponents charge that wealthy defendants who can hire legal counsel are exempt from capital punishment, but that indigent defendants who receive court-appointed counsel are frequently condemned to death. The critique is based on sensational stories, but anecdotes cannot establish a causal relationship. To explore the issue systematically, the current research examines the impact of legal counsel on the District Attorney's decisions to seek the death penalty and juries' decisions to impose death sentences against adult defendants indicted for capital murder in Harris County (Houston), Texas from 1992 to 1999 (n=504). Harris County is the largest jurisdiction in the nation to use the appointment method rather than the public defender method to deliver indigent capital defense, though by no means the only such jurisdiction. The empirical comparison of hired counsel to appointed counsel in Harris County reveals three central findings: (1) Defendants who hired counsel for the entire case were never sentenced to death; (2) Defendants who hired counsel for a portion of the case were substantially less likely to be sentenced to death; (3) Hiring counsel is not the province of the wealthy, as almost all of the capital murder defendants in this study were poor. Though not the focus of the research and a finding that must be considered tentative, the data also reveal that defendants who hired counsel for the entire case were much more likely to be acquitted. To be clear, the findings are not an indictment of appointed attorneys, but rather an indictment Of the structural deficiencies inherent in the appointment method. The research concludes with a call for Harris County-the capital of capital punishment-to establish a Public Defender Office with a specific Capital Defender Office. Though not a panacea, the public defender method comes much closer to the adversarial ideal of evenly matched partisans doing battle to produce justice.