Reversing Twenty Years of Supreme Court Postconviction Jurisprudence: Enlarging the Indigent Capital Defendant's Right to Postconviction Counsel in McFarland v. Scott

• NCJ Number: 168935
• Journal: New England Journal on Criminal and Civil Confinement Volume: 22 Issue: 2 Dated: (Spring 1996) Pages: 327-359
• Author(s): S M Latino
• Date Published: 1996
• Length: 33 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This Comment focuses on how the U.S. Supreme Court's decision in McFarland v. Scott (1994) marks a total departure from the Supreme Court's jurisprudence of the past 20 years regarding the right to counsel for indigent capital defendant's in postconviction proceedings.

Abstract

Historically, the U.S. Supreme Court, in accordance with the Sixth and Fourteenth Amendments of the U.S. Constitution, has extended to the indigent defendant a mandatory right to counsel at trial and on his first appeal. The Court, however, has never extended such protection to postconviction proceedings such as discretionary and collateral appeals. Over the past 20 years, the Court has consistently held that the right to counsel at postconviction proceedings is not a fundamental right. At this stage, only Federal and State statutes can prescribe a mandatory right to counsel for a particular class of defendants. In the absence of such a statute, the indigent defendant is left to his own resources and must proceed pro se. In such cases, the Supreme Court has refused to distinguish capital from non-capital defendants. In "McFarland" the Supreme Court was asked to interpret a right to counsel provision in the Anti-Drug Abuse Act of 1988. This provision, section 848(q)(4)(B), entitled the indigent criminal defendant, faced with a death sentence, pertains to the right to counsel during Federal postconviction habeas appeals. The crux of the issue in "McFarland" was determining the point at which the right to counsel takes effect. By providing the assistance of counsel at the time of filing, the majority of the Court has ensured that the capital defendant will be guided by an attorney at every stage of the Federal criminal process, even postconviction proceedings in Federal court. This Comment thus concludes that the Supreme Court's new postconviction jurisprudence abolishes death penalty conservatism and emphasizes a greater sensitivity to the plight of indigent capital defendants. 251 footnotes