The ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (“Guidelines”), as revised in 2003, continue to stand as the single most authoritative summary of the prevailing professional norms in the realm of capital defense practice. Hundreds of court opinions have cited the Guidelines. They have been particularly useful in helping courts to assess the investigation and presentation of mitigating evidence in death penalty cases. This Article will discuss how these Guidelines have come to reflect prevailing professional norms in this critical area of capital defense practice and how that practice has developed in the era of the modern U.S. death penalty. One of the principal arguments we will make in this Article is that courts interpreting the Sixth Amendment’s guarantee of effective assistance of counsel should look to what competent lawyers ought to do rather than what some lawyers appointed to represent capital defendants actually do . . . .
The ABA Guidelines and the Norms of Capital Defense Representation by Russell Stetler & W. Bradley Wendel
Overlooked Guidelines: Using the Guidelines to Address the Defense Need for Time and Money by Meredith Martin Rountree & Robert C. Owen
In 2003, Professor Eric M. Freedman, Reporter for the revised ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (“ABA Guidelines”), observed that one of the ABA Guidelines’ central virtues was to recognize that the death penalty is expensive.1 Fairness in the application of the ultimate punishment requires governments to develop systems to allocate essential resources, like compensation for counsel and funds for experts and investigators.2 Ten years later, this Article revisits Professor Freedman’s observation by exploring the question of resources and urging counsel to increase their use of the ABA Guidelines in fighting for the irreducible minima of reasonably effective representation: time and money.
On this, the fiftieth anniversary of Gideon v. Wainwright’s broken promise, I have been asked to propose guidelines that (a) provide professional discipline of lawyers who fail to provide competent representation in death penalty cases, but that (b) do not discourage good lawyers from taking death cases or from cooperating with successor counsel who is trying to show that the lawyers were ineffective at trial. It is a pointless exercise. And I have added another pointless exercise, drafting guidelines that will discipline judges who appoint lawyers in death cases whom the judges know or should know will give incompetent representation.
Enforcing the ABA Guidelines in Capital State Post-Conviction Proceedings After Martinez and Pinholster by Eric M. Freedman
The American Bar Association (“ABA”) Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases1 (“Guidelines”) mandate “high quality legal representation in accordance with these Guidelines” from the moment of arrest until the prosecution is no longer entitled to seek the death penalty.2 Commentators have long urged the Supreme Court to translate this sound policy—one that would benefit the states as well as prisoners3—into an explicit rule of constitutional law requiring the states to provide effective counsel in capital state post-conviction proceedings.
Why Do Europeans Ban Hate Speech? A Debate Between Carl Loewenstein and Robert Post by Robert A. Kahn
European countries restrict hate speech, the United States does not. This much is clear. What explains this difference? Too often the current discussion falls back on a culturally rich but normatively vacant exceptionalism (American or otherwise) or a normatively driven convergence perspective that fails to address historical, cultural, and experiential differences that distinguish countries and legal systems. Inspired by the development discourse of historical sociology, this Article seeks to record instances where Americans or Europeans have argued their approach to hate speech laws was more “advanced” or “modern.”
As summer faded to fall in 2005, a hurricane hit New Orleans, a city so unique in its history that it has more history than many American cities. It was nonetheless an American city in these telling parameters: a city of luxury alongside squalor, two-thirds Black, one-fourth poor, with the gap between its rich and poor growing at a gallop as the waters of lake and river lapped gently along aging, grass-covered levees. 1 Freeze the frame before the waters rise, and what do you see? A devastated public school system, where Black children are labeled “failing,” along with their schools. 2 An outdated infrastructure of public works, decried by planners as a disaster waiting to happen.
The Candor Factor: Does Nominee Evasiveness Affect Judiciary Committee Support for Supreme Court Nominees?
Are members of the Senate Judiciary Committee more likely to vote in favor of Supreme Court nominees who are candid and forthcoming during their confirmation hearings? Based on a line by line content analysis of every hearing transcript since 1955, we find that candor actually plays less of a role today than in years past. Specifically, we conclude that since 1981, when the hearings were first televised, senators have been influenced more by partisanship and ideology than by nominee forthcomingness. Thus, contrary to the claims of many lawmakers, candor does not appear to influence the amount of support that a nominee receives at the pivotal committee stage. We close by discussing the political and normative implications of these findings.
Election law is experiencing immense change. The Supreme Court’s recent approach to election law cases has significant implications for the scope of the right to vote and the meaning of political participation and self-governance. This Article examines the importance of the Court’s recent pronouncement that plaintiffs can bring election law challenges only as applied to a particular political actor for a particular situation, instead of challenging a law in its entirety. 1 The “as-applied only” rule may seem like simply a procedural method for construing election laws or a mere semantic distinction, but, as I show, in reality the Court’s decisions have significant substantive ramifications.
The organized bar is increasingly providing pro bono legal assistance to the more than fifty million people of limited means in the United States. 1 In 2008, the 200 highest grossing law firms in the United States contributed a record 5.57 million hours of pro bono service to individuals and organizations that could not afford to hire lawyers. 2 These large firms now have well-organized pro bono programs that enjoy considerable administrative support. But the lawyers in large firms (over 100 lawyers) comprise only about 16% of the lawyers in private practice. 3 Solo and small firm (two to five) lawyers, who comprise 63% of private practitioners, 4 contribute more time and in greater numbers to the pro bono legal representation of persons of limited means than any other group of lawyers.
Before the ink had dried on our critical assessment of new empirical research on implicit bias, 1 Professor Samuel Bagenstos had critiqued our critique. 2 Unfortunately, Bagenstos resorted to an old rhetorical gambit: refute a caricature of an opponent’s position rather than the real thing. If Bagenstos were to be believed, we took the position that the “the law should prohibit only discrimination that results from self-conscious, irrational animus” 3 and that “rational discrimination is not a proper target of antidiscrimination law.” 4 Having attributed this extreme position to us, it is no wonder that Bagenstos concludes that our arguments will “resonate strongly” with those who believe “antidiscrimination law should aim solely at punishing individuals who act on irrational racist and sexist animus” but “will be far less relevant” to those who see discrimination as “a social problem that entrenches the subordinated and disadvantaged status of particular, socially salient groups.