Although representation itself is a legal right, the type and quality of representation available to capital defendants varies across the USA. Some states provide a public defender while others use court-appointed lawyers. Although most states have clear standards regarding the qualifications and experience of court-appointed lawyers, these are often not fully adhered to in practice. Some states have the benefit of resource centres, not-for-profit legal organisations or individual lawyers prepared to work pro bono. This can be particularly important during the appeal process.
Once a defendant has been convicted they progress to direct appeal and this phase is covered by their legal right to representation. However, if a defendant is unsuccessful on direct appeal and progresses to post-conviction appeal then the situation changes and many states make no provision for post-conviction representation. In these cases the defendant must find the services of a volunteer lawyer or represent themselves.
Capital defence lawyers representing indigent clients are consistently over-worked and under-resourced. Public defenders receive a salary from the state but the rates are generally very low while the workload is high. Court-appointed lawyers also receive very little, especially during the preparatory stages. In some states (e.g. Alabama) the fees available for out-of-court work are capped at $1,000. It is impossible for a lawyer to prepare a case thoroughly with this level of funding. A recent report from the Equal Justice Initiative noted that court-appointed lawyers in Alabama had failed to file a single motion in 72% of all felony cases and that 70% of death row inmates had been represented by lawyers working for a capped fee. Volunteer lawyers are not paid at all. Those working for resource centres or similar organisations are reliant upon fundraising or grants. Those working independently face the challenge of balancing their pro bono capital defence work with other fee-earning work.