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Alabama Attorney General Bill Pryor is firing back at anti-death penalty lawyers who charge that his state is depriving death row inmates of legal counsel when the fairness of capital punishment is under more scrutiny than at any time in decades. In a civil rights suit filed recently in U.S. District Court for the Middle District of Alabama on behalf of Alabama death row inmates, Bryan A. Stevenson of Montgomery, Ala.’s Equal Justice Initiative and Stephen P. Hanlon, the Tallahassee, Fla.-based head of pro bono efforts for Holland & Knight, allege that Alabama state prison policies make it unconstitutionally difficult for inmates to obtain lawyers to draft and file habeas corpus petitions. In an interview Feb. 7, Pryor said the state is doing more than is constitutionally required. “We should be expending our resources on the earliest stages, to ensure a fair trial,” he said, adding that he does favor increases in attorney pay. “I know of nobody, of no state in the nation with this kind of cavalier attitude,” said Hanlon, who argued that the rollback of habeas protections and defunding of death penalty resource centers in the 1990s has increased the risk that innocent people will be executed. Four wrongfully convicted men have been removed from Alabama’s death row in recent years. “It certainly calls into question whether or not the U.S. Supreme Court’s decision in Giarratano was correct.” In that 1989 case, Murray v. Giarratano, 492 U.S. 1, the Court ruled there is no constitutional right to legal counsel for indigent convicts in post-conviction proceedings, including capital cases. Though Stevenson says he would welcome a reversal of that ruling, he said he merely hopes for the district court to toll the one-year time limit for the filing of a habeas corpus petition when a death row inmate is without representation. “Congress said that people on death row should not be subject to the statute of limitations if there is an impediment to them filing a habeas petition,” said Stevenson. “The lack of counsel constitutes such an impediment.” CIVIL RIGHTS SUIT The lawsuit, filed Dec. 28, charges that the state provides no assistance to indigent death row inmates seeking post-conviction relief, requiring that they file a pro se petition under Rule 32 of the Alabama Rules of Criminal Procedure “that properly articulates a valid claim” in order to obtain a court-appointed attorney for a post-conviction appeal. If the court does appoint such a defense attorney, the state caps his compensation at $1,000 for the entire case. Additionally, the 52-page complaint alleges that state prison officials severely limit attorney access to clients, while preventing paralegals from seeing clients alone. “The cumulative effect of defendants’ actions is to create an unlawful and unconstitutional impediment to Plaintiffs’ filing of federal habeas applications,” the lawyers write in the complaint, Barbour v. Haley, No. 01-T-1530-N. Combined with the one-year habeas deadline, imposed under the 1996 Antiterrorism and Effective Death Penalty Act, Hanlon said some inmates may never obtain counsel. According to Stevenson’s group, Alabama has sentenced more people to death per capita than any other state in the past three years. There are currently 187 people on death row in Alabama, of which approximately 40 have no legal representation, Stevenson said. Pryor said this is how it should be. “Those who represent inmates on death row assume that Rule 32 proceedings should be filed for every inmate on death row,” he said. “They’re supposed to have a legitimate claim.” Currently, two men on death row will have their one-year habeas clock expire in May, said Hanlon. The state has yet to answer the complaint, instead seeking to change venue to Alabama’s southern federal district. Hanlon said he will seek an emergency injunction on behalf of the two inmates.

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