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Death by Lottery: Procedural Bar of Constitutional Claims in Capital Cases Due to Inadequate Representation of Indigent Defendants, 92 WEST VIRGINIA LAW REVIEW 679 (1990)


After the execution of Washington Goode, a black man sentenced to be hanged for murder in Massachusetts in 1848, the Boston Herald observed that if a “white man who had money had committed the same crime, he would not have been executed.” The same can and has been said with regard to many executions which occur today. A united States Supreme Court law clerk observed after a year of reviewing petitions in capital cases that “[w]hether somebody received the death penalty very often seemed to be a function of the lawyers. . . . [T]he death penalty frequently results from nothing more than poverty and poor lawyering.”

Poor people accused of capital crimes are frequently represented by inadequately compensated, inexperienced, and incompetent court-appointed attorneys. Poverty and poor lawyering may result in a less than vigorous defense at a trial where the death penalty is imposed. It may also mean less than full federal habeas corpus review. Failure of counsel to recognize a constitutional violation and properly preserve the issue may be deemed a waiver by the indigent defendant and a death sentence obtained in violation of the United States Constitution may be carried out.

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