Note: The Case Against Self-Representation in Capital Proceedings

By Max S. Meckstroth. Full text here.

In 1972, the Supreme Court decided Furman v. Georgia, holding that the death penalty was being applied arbitrarily and capriciously—rendering its application unconstitutional. Three years later, while the death penalty was still considered unconstitutional, the Supreme Court in Faretta v. California held that the Sixth Amendment implied the right of self-representation in criminal prosecutions. Since Faretta, courts and commentators alike have expressed concern over the damaging effects that self-representation inflicts not only upon a defendant’s likelihood of success, but on the integrity and legitimacy of the adversarial process. Then, in 1976, one year following Faretta’s holding that the Sixth Amendment afforded a right of self-representation, Gregg v. Georgia held that the death penalty could be constitutionally administered as long as requisite procedural measures are taken to limit juror discretion and guard against the arbitrary and capricious imposition of the death penalty. To date, the Supreme Court has never squarely addressed the intersection of these three cases—the constitutionality of self-representation in capital proceedings.

This Note examines the inherent tensions between self-representation and the constitutionally required procedural safeguards that are compromised when defendants exercise their right of self-representation in capital proceedings. Ultimately, this Note concludes that the tensions between the right of self-representation and the requirement that the death penalty be administered fairly and non-arbitrarily are irreconcilable. Consequently, this Note argues that the Supreme Court should qualify the right of self-representation (as it has in various other contexts) by eliminating a defendant’s ability to proceed pro se during capital proceedings. Moreover, due to the irreconcilability of self-representation in capital proceedings, a defendant’s autonomy is undoubtedly burdened. Therefore, this Note also suggests that such a qualification should coincide with a reinvigoration of assistance of counsel. Specifically, trial courts in capital proceedings should employ judicial monitoring sessions allowing judges to make formal inquiries into a defendant’s objectives when court-appointed counsel conducts their defense.  This would not only document counsels’ representation for reference in potential later claims of ineffective assistance of counsel, but it would empower judges to see that a defendant receives their desired representation.