Murray v. Giarratano/Opinion of the Court
THE CHIEF JUSTICE, joined by Justice WHITE, Justice O'CONNOR, and Justice SCALIA, concluded that neither the Eighth Amendment nor the Due Process Clause requires States to appoint counsel for indigent death row inmates seeking state postconv ction relief. Pp. 7-13.
(a) This Court's decisions require the conclusion that the rule of Pennsylvania v. Finley should apply no differently in capital cases than in noncapital cases. See, e.g., Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434. State collateral proceedings are not constitutionally required as an adjunct to the state criminal proceeding and serve a different and more limited purpose than either the trial or appeal. Eighth Amendment safeguards imposed at the trial stage-where the court and jury hear testimony, receive evidence, and decide the question of guilt and punishment-are sufficient to assure the reliability of the process by which the death penalty is imposed. Pp. 7-10.
(b) There is no inconsistency whatever between the holdings in Bounds and Finley. The right of access at issue in Bounds rests on a constitutional theory considered in Finley. Extending Bounds would partially overrule the subsequently decided Finley and would reject a categorical rule-the usual tack taken in right to counsel cases-for the adoption of a case-by-case determination based on "factual" findings, which, under a "clearly-erroneous" standard, could result in different constitutional rules being applied in different States. Pp. 10-13.
Justice KENNEDY, joined by Justice O'CONNOR, concluded that Virginia's scheme for securing representation for indigent death row inmates does not violate the Constitution. Although Virginia's procedures are not as far reaching and effective as those available in other States, no Virginia death row inmates have been unable to obtain counsel to represent them in postconviction proceedings, and Virginia's prison system is staffed by institutional lawyers to assist inmates in such matters. Bounds' meaningful-access requirement can be satisfied in various ways, and state legislatures and prison administrators must be given "wide discretion" to select appropriate solutions from a range of complex options. Pp. 14-15.
REHNQUIST, C.J., announced the judgment of the Court and delivered an opinion, in which WHITE, O'CONNOR, and SCALIA, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 13. KENNEDY, J., filed an opinion concurring in the judgment, in which O'CONNOR, J., joined, post, p. 14. STEVENS, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 15.
Robert Q. Harris, for petitioners.
Gerald T. Zerkin, Richmond, Va., for respondents.
Chief Justice REHNQUIST announced the judgment of the Court and delivered an opinion, in which Justice WHITE, Justice O'CONNOR, and Justice SCALIA join.
Virginia death row inmates brought a civil rights suit against various officials of the Commonwealth of Virginia. The prisoners claimed, based on several theories, that the Constitution required that they be provided with counsel at the Commonwealth's expense for the purpose of pursuing collateral proceedings related to their convictions and sentences. The courts below ruled that appointment of counsel upon request was necessary for the prisoners to enjoy their constitutional right to access to the courts in pursuit of state habeas corpus relief. We think this holding is inconsistent with our decision two Terms ago in Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), and rests on a misreading of our decision in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977).
Joseph M. Giarratano is a Virginia prisoner under a sentence of death. He initiated this action under 42 U.S.C. § 1983, by pro se complaint in Federal District Court, against various state officials including Edward W. Murray who is the Director of the Virginia Department of Corrections. Some months later, the District Court certified a class comprising all current and future Virginia inmates awaiting execution who do not have and cannot afford counsel to pursue postconviction proceedings.  The inmates asserted a number of constitutional theories for an entitlement to appointed counsel and the case was tried to the court.
After the evidence, post-trial briefs, and other memoranda, the District Court expressed "serious doubts as to the viability of many of th[e] theories." 668 F.Supp. 511, 512 (E.D.Va.1986). It was, however, "satisfied that the United States Supreme Court's decision in Bounds dictates that the plaintiffs here be granted some form of relief." Ibid. The District Court noted three special "considerations" relating to death row inmates that it believed required that these inmates receive greater assistance than Bounds had outlined. It found that death row inmates had a limited amount of time to prepare their petitions, that their cases were unusually complex, and that the shadow of impending execution would interfere with their ability to do legal work. These "considerations" led the court to believe that the "plaintiffs are incapable of effectively using lawbooks to raise their claims." As a result, it found that Virginia's policy of either allowing death row inmates time in the prison law library or permitting them to have lawbooks sent to their cells did "little to satisfy Virginia's obligation."  668 F.Supp., at 513. "Virginia must fulfill its duty by providing these inmates trained legal assistance." Ibid.
The District Court then evaluated the avenues by which inmates convicted of capital crimes could obtain the aid of counsel in Virginia. It found inadequate the availability of "unit attorneys" appointed by Virginia to the various penal institutions to assist inmates in incarceration-related litigation. Id., at 514. Further, it found that "[e]ven if Virginia appointed additional institutional attorneys to service death row inmates, its duty under Bounds would not be fulfilled" because, acting "only as legal advisors," "[t]he scope of assistance these attorneys provide is simply too limited." Ibid. Along the same lines, the District Court concluded that Virginia's provisions for appointment of counsel after a petition is filed did not cure the problem.  This was primarily because "the timing of the appointment is a fatal defect" as the inmate "would not receive the attorney's assistance in the critical stages of developing his claims." Id., at 515.
Even together, Virginia's efforts did not afford prisoners a meaningful right of access to the courts, in the opinion of the District Court, because they did not guarantee them "the continuous assistance of counsel." Ibid. With what the District Court feared was the imminent depletion of the pool of volunteer attorneys willing to help Virginia death row inmates attack their convictions and sentences, the court felt that "[t]he stakes are simply too high for this Court not to grant, at least in part, some relief." It therefore ordered Virginia to develop a program for the appointment of counsel, upon request, to indigent death row inmates wishing to pursue habeas corpus in state court. Id., at 517. It decided, however, that the decision in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), indicated that Virginia had no similar constitutional obligation to appoint counsel for the pursuit of habeas corpus in federal court. 668 F.Supp., at 516-517.
On appeal to the United States Court of Appeals for the Fourth Circuit, a divided panel reversed the District Court's judgment that the Commonwealth was constitutionally required to provide personal attorneys to represent death row inmates in state collateral proceedings. 836 F.2d 1421 (1988). But that court, en banc, subsequently reheard the case and affirmed the District Court. 847 F.2d 1118 (1988). The en banc court viewed as findings of fact the special "considerations" relating to death row inmates which had led the District Court to conclude that Virginia was not in compliance with the constitutional rights of access. It accepted these findings as not clearly erroneous and so affirmed the District Court's remedial order. The en banc court did not believe the case to be controlled by Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), which held that the Constitution did not require States to provide counsel in postconviction proceedings. "Finley was not a meaningful access case, nor did it address the rule enunciated in Bounds v. Smith." 847 F.2d, at 1122. "Most significantly," thought the Fourth Circuit, "Finley did not involve the death penalty." Ibid. Four judges dissented. We granted certiorari, 488 U.S. 923, 109 S.Ct. 303, 102 L.Ed.2d 322 (1988), and now reverse.
In Finley we ruled that neither the Due Process Clause of the Fourteenth Amendment nor the equal protection guarantee of "meaningful access" required the State to appoint counsel for indigent prisoners seeking state postconviction relief. The Sixth and Fourteenth Amendments to the Constitution assure the right of an indigent defendant to counsel at the trial stage of a criminal proceeding, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and an indigent defendant is similarly entitled as a matter of right to counsel for an initial appeal from the judgment and sentence of the trial court. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). But we held in Ross v. Moffitt, supra, 417 U.S., at 610, 94 S.Ct., at 2443, that the right to counsel at these earlier stages of a criminal procedure did not carry over to a discretionary appeal provided by North Carolina law from the intermediate appellate court to the Supreme Court of North Carolina. We contrasted the trial stage of a criminal proceeding, where the State by presenting witnesses and arguing to a jury attempts to strip from the defendant the presumption of innocence and convict him of a crime, with the appellate stage of such a proceeding, where the defendant needs an attorney "not as a shield to protect him against being 'haled into court' by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt." 417 U.S., at 610-611, 94 S.Ct., at 2443-2444.
We held in Finley that the logic of Ross v. Moffitt required the conclusion that there was no federal constitutional right to counsel for indigent prisoners seeking state postconviction relief:
"Postconviction relief is even further removed from the criminal trial than is discretionary direct review. It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature. See Fay v. Noia, 372 U.S. 391, 423-424 [83 S.Ct. 822, 840-841, 9 L.Ed.2d 837] (1963). . . . States have no obligation to provide this avenue of relief, cf. United States v. MacCollom, 426 U.S. 317, 323 [96 S.Ct. 2086, 2090, 48 L.Ed.2d 666] (1976) (plurality opinion), and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the state supply a lawyer as well." 481 U.S., at 556-557, 107 S.Ct., at 1994.
Respondents, like the courts below, believe that Finley does not dispose of respondents' constitutional claim to appointed counsel in habeas proceedings because Finley did not involve the death penalty.  They argue that, under the Eighth Amendment, "evolving standards of decency" do not permit a death sentence to be carried out while a prisoner is unrepresented. Brief for Respondents 47. In the same vein, they contend that due process requires appointed counsel in postconviction proceedings, because of the nature of the punishment and the need for accuracy. Id., at 48-49.
We have recognized on more than one occasion that the Constitution places special constraints on the procedures used to convict an accused of a capital offense and sentence him to death. See, e.g., Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (trial judge must give jury the option to convict of a lesser offense); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (jury must be allowed to consider all of a capital defendant's mitigating character evidence); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (same). The finality of the death penalty requires "a greater degree of reliability" when it is imposed. Lockett, supra, 438 U.S., at 604, 98 S.Ct., at 2964.
These holdings, however, have dealt with the trial stage of capital offense adjudication, where the court and jury hear testimony, receive evidence, and decide the questions of guilt and punishment. In Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), we declined to hold that the Eighth Amendment required appellate courts to perform proportionality review of death sentences. And in Satterwhite v. Texas, 486 U.S. 249, 256, 108 S.Ct. 1792, 1797, 100 L.Ed.2d 284 (1988), we applied the traditional appellate standard of harmless-error review set out in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), when reviewing a claim of constitutional error in a capital case.
We have similarly refused to hold that the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus. In Smith v. Murray, 477 U.S. 527, 538, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1986), a case involving federal habeas corpus, this Court unequivocally rejected "the suggestion that the principles [governing procedural fault] of Wainwright v. Sykes[, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977),] apply differently depending on the nature of the p nalty a State imposes for the violation of its criminal laws" and similarly discarded the idea that "there is anything 'fundamentally unfair' about enforcing procedural default rules. . . ." Id., 477 U.S., at 538-539, 106 S.Ct., at 2668. And, in Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391, 77 L.Ed.2d 1090 (1983), we observed that "direct appeal is the primary avenue for review of a conviction or sentence, and death penalty cases are no exception."
Finally, in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), we held that the Eighth Amendment prohibited the State from executing a validly convicted and sentenced prisoner who was insane at the time of his scheduled execution. Five Justices of this Court, however, rejected the proposition that "the ascertainment of a prisoner's sanity as a predicate to lawful execution calls for no less stringent standards than those demanded in any other aspect of a capital proceeding." Id., at 411-412, 106 S.Ct., at 2603. Justice Powell recognized that the prisoner's sanity at the time of execution was "not comparable to the antecedent question of whether the petitioner should be executed at all." Id., at 425, 106 S.Ct., at 2610. "It follows that this Court's decisions imposing heightened procedural requirements on capital trials and sentencing proceedings do not apply in this context." Ibid. (citations omitted); id., at 429, 106 S.Ct., at 2612 (O'CONNOR, J., joined by WHITE, J., dissenting in part and concurring in result in part) (due process requirements minimal); id., at 434, 106 S.Ct., at 2614 (REHNQUIST, J., joined by Burger, C.J., dissenting) (wholly executive procedures sufficient).
We think that these cases require the conclusion that the rule of Pennsylvania v. Finley should apply no differently in capital cases than in noncapital cases. State collateral proceedings are not constitutionally required as an adjunct to the state criminal proceedings and serve a different and more limited purpose than either the trial or appeal.  The additional safeguards imposed by the Eighth Amendment at the trial stage of a capital case are, we think, sufficient to assure the reliability of the process by which the death penalty is imposed. We therefore decline to read either the Eighth Amendment or the Due Process Clause to require yet another distinction between the rights of capital case defendants and those in noncapital cases.
The dissent opines that the rule that it would constitutionally mandate "would result in a net benefit to Virginia." Post, at 30. But this "mother knows best" approach should play no part in traditional constitutional adjudication. Even as a matter of policy, the correctness of the dissent's view is by no means self-evident. If, as we said in Barefoot v. Estelle, supra, direct appeal is the primary avenue for review of capita cases as well as other sentences, Virginia may quite sensibly decide to concentrate the resources it devotes to providing attorneys for capital defendants at the trial and appellate stages of a capital proceeding. Capable lawyering there would mean fewer colorable claims of ineffective assistance of counsel to be litigated on collateral attack.
The Court of Appeals, as an additional basis for its holding, relied on what it perceived as a tension between the rule in Finley and the implication of our decision in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); we find no such tension. Whether the right of access at issue in Bounds is primarily one of due process or equal protection,  in either case it rests on a constitutional theory considered in Finley. The Court held in Bounds that a prisoner's "right of access" to the courts required a State to furnish access to adequate law libraries in order that the prisoners might prepare petitions for judicial relief. Bounds, supra, 430 U.S., at 828, 97 S.Ct., at 1498. But it would be a strange jurisprudence that permitted the extension of that holding to partially overrule a subsequently decided case such as Finley which held that prisoners seeking judicial relief from their sentence in state proceedings were not entitled to counsel.
It would be an even stranger jurisprudence to allow, as the dissent would, the "right of access" involved in Bounds v. Smith, supra, to partially overrule Pennsylvania v. Finley, based on "factual" findings of a particular district court regarding matters such as the perceived difficulty of capital sentencing law and the general psychology of death row inmates. Treating such matters as "factual findings," presumably subject only to review under the "clearly-erroneous" standard, would permit a different constitutional rule to apply in a different State if the district judge hearing that claim reached different conclusions. Our cases involving the right to counsel have never taken this tack; they have been categorical holdings as to what the Constitution requires with respect to a particular stage of a criminal proceeding in general. See Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Indeed, as the dissent itself points out, post, at 17, it was the Court's dissatisfaction with the case-by-case approach of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), that led to the adoption of the categorical rule requiring appointed counsel for indigent felony defendants in Gideon.
There is no inconsistency whatever between the holding of Bounds and the holding in Finley; the holding of neither case squarely decides the question presented in this case. For the reasons previously stated in this opinion, we now hold that Finley applies to those inmates under sentence of death as well as to other inmates, and that holding necessarily imposes limits on Bounds. 
Petitioners and respondents disagree as to the practices currently in effect in Virginia state prisons with respect to death row prisoners. Respondents contend that these prisoners are denied adequate and timely access to a law library during the final weeks before the date set for their execution. If respondents are correct, the District Court on remand may remedy this situation without any need to enlarge the holding of Bounds.
Justice O'CONNOR concurring.
I join in THE CHIEF JUSTICE's opinion. As his opinion demonstrates, there is nothing in the Constitution or the precedents of this Court that requires that a State provide counsel in postconviction proceedings. A postconviction proceeding is not part of the criminal process itself, but is instead a civil action designed to overturn a presumptively valid criminal judgment. Nothing in the Constitution requires the States to provide such proceedings, see Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), nor does it seem to me that the Constitution requires the States to follow any particular federal model in those proceedings. I also join in Justice KENNEDY's opinion concurring in the judgment, since I do not view it as inconsistent with the principles expressed above. As Justice KENNEDY observes, our decision in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), allows the States considerable discretion in assuring that those imprisoned in their jails obtain meaningful access to the judicial process. Beyond the requirements of Bounds, the matter is one of legislative choice based on difficult policy considerations and the allocation of scarce legal resources. Our decision today rightly leaves these issues to resolution by Congress and the state legislatures.
^1 In precise terms, the class was defined as
"all persons, now and in the future, sentenced to death in Virginia, whose sentences have been or are subsequently affirmed by the Virginia Supreme Court and who either (1) cannot afford to retain and do not have attorneys to represent them in connection with their post-conviction proceedings, or (2) could not afford to retain and did not have attorneys to represent them in connection with a particular post-conviction proceeding." App. 32.
^2 Virginia houses its death row inmates at the Mecklenberg Correctional Center, the Virginia State Penitentiary, and the Powhatan Correctional Center. Each of these three centers maintain law libraries. Inmates at Mecklenberg are allowed two library periods per week; inmates at the other facilities may borrow materials from the prison library for use in their cells.
^3 At the time the District Court decided the case, Virginia courts were authorized to appoint counsel to individual inmates as follows:
"Any person, who has been a resident of this State for a continuous period of six months, who on account of his poverty is unable to pay fees or costs may be allowed by a court to sue or defend a suit therein, without paying fees or costs; whereupon he shall have, from any counsel whom the court may assign him, and from all officers, all needful services and process, without any fees to them therefore, except what may be included in the costs recovered from the opposite party." Va.Code § 14.1-183 (1950).
The Virginia Code was amended in 1987 to delete the 6-month residency requirement. Va.Code § 14.1-183 (Supp.1988). It is unclear whether, in review of capital cases, counsel will be appointed under this statute or otherwise prior to filing and unless the petition presents a nonfrivolous claim. See Darnell v. Peyton, 208 Va. 675, 160 S.E.2d 749 (1968).
^4 Respondents offer this theory-that the Constitution requires postconviction cases involving the death penalty to be treated differently from other postconviction cases-as a basis for affirmance in addition to their reliance on Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), discussed later.
^5 The dissent offers surveys to show that Virginia is one of a handful of States without a "system for appointing counsel for condemned prisoners before a postconviction petition is filed." Post, at 31. But even these surveys indicate that only 18 of the 37 States make such appointment automatic. Post, at 30. These 18 States overlap to a significant extent with the 13 States that have created "resource centers to assist counsel in litigating capital cases," post, at 30-31, which, in any event, is not the same thing as requiring automatic appointment of counsel before the filing of a petition. Consequently, a substantial balance of States do not accord the right that the dissent would require Virginia to grant as a matter of constitutional law. Virginia courts presently have the authority to appoint counsel to represent any inmate in state habeas proceedings, Va.Code § 14.1-183 (Supp.1988), and the attorney general represents that such appointments have been made, upon request, before the filing of any petition. Brief for Petitioners 6-7.
^6 The prisoner's right of access has been described as a consequence of the right to due process of law, see Procunier v. Martinez, 416 U.S. 396, 419, 94 S.Ct. 1800, 1814, 40 L.Ed.2d 224 (1974), and as an aspect of equal protection, see Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 1994, 95 L.Ed.2d 539 (1987).
^7 Many States automatically provide counsel to death row inmates in state habeas corpus proceedings, as a matter of state law. See, e.g., Ariz.Rule Crim.Proc. 32.5(b); Conn.Gen.Stat. § 51-296(a) (1985); Okla.Stat., Tit. 22, § 1089 (Supp.1988); Ore.Rev.Stat. § 138.590(3) (1987). Under the Anti-Drug Abuse Act of 1988, attorneys will be appointed in federal habeas corpus actions involving a challenge to a death sentence. See § 7001(b), Pub.L. 100-690, 102 Stat. 4393, 21 U.S.C. § 848(q)(4)(B) (1988 ed.). Respondents suggest that appointment of counsel might even benefit Virginia by speeding, or at least clarifying, the Virginia postconviction process. The situation of death row inmates may well be the basis for state policy to provide them extra legal assistance or more lenient standards of pro se pleading.