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While the UK abolished capital punishment in 1998, 55 countries still retain and implement it. This includes the United States, where it’s controversially permissible in 27 states. The moral debate is long standing, but there are also protests to improve the quality of legal representation for those facing the death penalty, ensuring due process and that the current law is applied justly.

There are six main barriers to justice:

• politicised court system;
• race;
• poverty;
• intellectual disability and mental illness;
• method of execution; and
• innocence.

This blog will give a brief summary of how poverty is a major issue in relation to capital punishment in the US.

Retentionist countries must provide access to justice for all. However, those in poverty are disproportionately affected in death penalty litigation for various reasons. Firstly, the US criminal justice system often fails to protect the most impoverished from marginalisation engendered by poverty.

Court litigation is expensive but capital cases are particularly costly because they’re complex, time sensitive and demanding. It’s often beyond the defendant’s means to acquire necessary expert evidence, investigation and witness tracking. This weakens their case from the start. Appeals are integral in capital cases to allow adequate scrutiny of the facts and decision making. However, appeals also require extra counsel and costs. Failure to afford bail and time in custody can also negatively affect defence. It’s clear that the most impoverished are likely to bear the brunt of possible corruption in the system. 

Secondly and substantially, lack of due process means around one in three death row inmates will be trialled without a competent attorney. Most rely on court-appointed lawyers that are underpaid, overworked and inexperienced. There are instances where lawyers were severely underprepared and unprofessional – eg, lawyers turning up intoxicated and sleeping through trials.

However, courts have been known to allow egregious mistakes. For example, during a Texas death penalty case, the defendant’s counsel slept in court as he found it “boring”. In response, the presiding judge famously said “the constitution says everyone’s entitled to a lawyer of their choice. The constitution doesn’t say the lawyer has to be awake”. The poor quality of defence is known but there’s been little action, possibly because the overwhelming majority of defendants are poor (95% according to the Equal Justice Initiative). Most states have insufficient legal aid for capital defence counsel, and don’t require them to have the minimum training outlined by the American Bar Association. There are not enough high-quality public and pro bono defence lawyers to meet demand.

Finally, poverty is a compounding problem for vulnerable and disadvantaged communities in terms of ethnicity, gender, migration status, etc. In terms of race particularly, African Americans have the highest poverty rate. Therefore, the combination of poverty and racial prejudice weakens their defence. Various studies have shown that people in poverty are more likely to be belittled, victimised and criminalised. As Philip Alston, special rapporteur on extreme poverty in the US rightly says: “Poverty should be understood as a multidimensional phenomenon involving much more than a lack of income alone”.

If you’re interested in finding out about volunteering opportunities in the UK, there’s a full list of pro bono initiatives on LawCareers.Net.