Anthony Kennedy

“ These three critical factors demonstrate that there is a profound difference between capital postconviction litigation and ordinary postconviction litigation in Virginia. The District Court's findings unequivocally support the conclusion that to obtain an adequate opportunity to present their postconviction claims fairly, death row inmates need greater assistance of counsel than Virginia affords them. ”

“ In Griffin, the Court proscribed I linois' discriminatory barrier to appellate review in part because many other States already had rejected such a barrier. 351 U.S., at 19, 76 S.Ct., at 590; cf. Gideon, 372 U.S., at 345, 83 S.Ct., at 798 (noting that 22 States supported right to trial counsel) . Similarly, the trend in most States to expand legal assistance for their death row inmates further dilutes Virginia's weak justifications for refusing to do so, and "lends convincing support to the conclusion" of the courts below that these respondents have a fundamental right to the relief they seek. ”

“ These respondents, like petitioners in Powell but unlike respondent in Finley, have been condemned to die. Legislatures conferred greater access to counsel on capital defendants than on persons facing lesser punishment even in colonial times. [5] Our First Congress required assignment of up to two attorneys to a capital defendant at the same time it initiated capital punishment; [6] nearly a century passed before Congress provided for appointment of counsel in other contexts. See Mallard v. United States District Court, 490 U.S. 296, 109 S.Ct. ”

“ As the District Court's findings reflect, the plight of the death row inmate constrains his ability to wage collateral attacks far more than does the lot of the ordinary inmate considered in Finley. [19] The District Court found that the death row inmate has an extremely limited period to prepare and present his postconviction petition and any necessary applications for stays of execution. ”

“ Of the 37 States authorizing capital punishment, at least 18 automatically provide their indigent death row inmates counsel to help them initiate state collateral proceedings. [26] Thirteen of the 37 States have created governmentally funded resource centers to assist counsel in litigating capital cases. [27] Virginia is among as few as five States that fall into neither group and have no system for appointing counsel for condemned prisoners before a postconviction petition is filed. ”

“ Far from creating a discrete constitutional right, Bounds constitutes one part of a jurisprudence that encompasses "right-to-counsel" as well as "access-to-courts" cases. Although each case is shaped by its facts, all share a concern, based upon the Fourteenth Amendment, that accused and convicted persons be permitted to seek legal remedies without arbitrary governmental interference.
At the fountainhead of this body of law is Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932) , which recognized that " [e] ven the intelligent and educated layman . . . ”

“ Such a high incidence of uncorrected error demonstrates that the meaningful appellate review necessary in a capital case extends beyond the direct appellate process.
Second. In contrast to the collateral process discussed in Finley, Virginia law contemplates that some claims ordinarily heard on direct review will be relegated to postconviction proceedings. Claims that trial or appellate counsel provided constitutionally ineffective assistance, for instance, usually cannot be raised until this stage. ”

“ Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) , a grim deadline imposes a finite limit on the condemned person's capacity for useful research. [20]
Capital litigation, the District Court observed, is extremely complex. 668 F.Supp., at 513. Without regard to the special characteristics of Virginia's statutory procedures, [21] this Court's death penalty jurisprudence unquestionably is difficult even for a trained lawyer to master. ”

“ The postconviction procedure in Virginia may present the first opportunity for an attorney detached from past proceedings to examine the defense and to raise claims that were barred on direct review by prior counsel's ineffective assistance. A fresh look may reveal, for example, that a prior conviction used to enhance the defendant's sentence was invalid, e.g., Johnson v. ”

“ The narrow question presented is whether that obligation includes appointment of counsel for indigent death row inmates who wish to pursue state postconviction relief. Viewing the facts in light of our precedents, we should answer that question in the affirmative. ”

“ The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal." Douglas, 372 U.S., at 357-358, 83 S.Ct., at 816-817.
In two subsequent opinions the Court rejected inmates' attempts to secure legal assistance. In Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) , the Court held there was no right to appointment of counsel for discretionary state appeals or certiorari petitions to this Court. ”

“ Wash.Super.Ct.Crim.Rule 3.1 (b) (2) .↑ They are Alabama, Arizona, California, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, and Texas. State Bar Brief 34. See Mello, 37 Am.U.L.Rev., at 593-606 (discussing development of Florida's resource center) ; cf. Godbold, 42 Record of N.Y.C.B.A., at 868-871 (state and federal efforts to provide legal assistance) . ”