The Crisis of Counsel in Alabama

A fair criminal justice system requires competent and effective lawyers. But Alabama faces a serious crisis in the quality of counsel. At the trial level, attorneys for indigent capital defendants have been hampered by low hourly rates. Inmates under sentence of death have no right to counsel in postconviction. Any prospect for a fairer criminal justice system in Alabama depends on an improved commitment to assuring adequate counsel.

There is no statewide indigent defender system in Alabama. While Alabama did open an Office of Indigent Defense Services in 2011, judicial circuits still independently determine how to administer defense services. Rather than regulating indigent legal services on a statewide level, the Office of Indigent Defense Services — which is a division of the Alabama Department of Finance — largely acts to provide financial services to the circuits and process payments to contract attorneys.

Of 41 judicial circuits in Alabama, just six have a public defender, and not all represent capital defendants. The majority of circuits contract with private attorneys for a monthly fee. The remaining judicial circuits appoint attorneys to represent capital defendants for an hourly fee. State law requires that one appointed attorney have five years of criminal experience but trial courts may allow exceptions. And despite American Bar Association guidelines calling for no fewer than two attorneys in a capital case, Alabama law requires only one.

Insufficient Compensation

Alabama has always had very low compensation rates for capital trial attorneys, which can prevent qualified lawyers from providing adequate representation. Until 1999, attorneys were paid only $40 per hour for in-court work, and $20 for out-of-court work, and the total compensation for out-of-court work was capped at $1000.

Nearly half of the inmates currently on Alabama’s death row were convicted while the total compensation to their attorneys for out-of-court work was capped at $1000.

The current hourly compensation rate is $70. Today, after defendants have been convicted and sentenced to death, their direct appeal attorneys, who are responsible for raising all the trial errors to the two state appellate courts, are compensated at a rate of $70 per hour, subject to a cap of $2500 per appellate court.

Deficient Representation

Without sufficient compensation to support necessary investigation and trial preparation, it is no surprise that Alabama courtrooms have been the sites of terrible lawyering. One study of four Alabama counties using contract attorneys revealed that in 72.5 percent of felony cases, the attorney did not file a single motion, and in 99.4 percent of cases, the attorney did not request funds for experts or investigators.

There are horrific examples that go beyond merely inadequate representation. One drunken attorney was ordered to sleep off his intoxication in jail during his client’s capital trial, while another attorney who represented capital defendants claimed to be a “mystic, clairvoyant, and prophet,” who heard voices and relied on alleged paranormal powers in his representation. 

Need for Counsel in Postconviction Proceedings

Our capital system in Alabama is in disarray.  Without counsel to vigorously represent death row inmates in state postconviction, we know that there have been instances where justice was not served.

- Alabama Appellate Court Justices and Bar Presidents in Amicus Brief to United States Supreme Court

Alabama provides no legal assistance to condemned inmates for preparing and filing postconviction claims. Every other state with the death penalty provides condemned inmates postconviction assistance.

Without it, inmates with no resources and no ability to investigate beyond the walls of their prison must somehow navigate the complex legal and technical requirements of Alabama’s postconviction procedure. This can prevent an inmate from ever getting a court to review whether his trial lawyer was constitutionally ineffective, whether the prosecution hid exculpatory evidence, or whether there was juror misconduct. Unsurprisingly, inmates who file their petitions on their own frequently find themselves procedurally barred from asserting their claims, no matter their validity. 

Even when the state appoints counsel, compensation for the entirety of an attorney’s postconviction representation is capped at $1500. Adequate postconviction representation entails hundreds of hours of work, which includes: reading a trial record that often runs thousands of pages; conducting a factual investigation; conferring with the client; and researching and writing legal documents. With such a low cap, attorneys who represent inmates in postconviction proceedings are either skipping important steps in the representation or working at rates below the federal minimum wage.

A statewide indigent defender system and adequate compensation for appointed attorneys is necessary in Alabama. Until poor defendants and inmates have quality legal representation at all stages of the capital process, the crisis of counsel in the state will hinder the ability of the criminal justice system to yield fair and just results.