John Paul Stevens

“ 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. ”

“ 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. ”

“ Eldridge, 424 U.S. 319, 334-335, 96 S.Ct. 893, 902-903, 47 L.Ed.2d 18 (1976) , Virginia has failed to assert any interest that outweighs respondents' right to legal assistance. The State already appoints counsel to death row inmates who succeed in filing postconviction petitions asserting at least one nonfrivolous claim; therefore, the additional cost of providing its 32 death row inmates competent counsel to prepare such petitions should be minimal. ”

“ Particular circumstances thus defined the degree to which the Fourteenth Amendment protected petitioners in Powell against arbitrary criminal prosecution or punishment. Similarly, in Griffin v. Illinois, 351 U.S. 12, 18-19, 76 S.Ct. 585, 590-591, 100 L.Ed. 891 (1956) , the Court focused on " [s] tatistics show [ing] that a substantial proportion of criminal convictions are reversed by state appellate courts" in concluding that once a State allows appeals of convictions, it cannot administer its appellate process in a discriminatory fashion. ”