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December 18, 2018

Hofstra Law Review Marks 15th Anniversary of the ABA Guidelines

This summer, the Hofstra Law Review published a Symposium entitled “Effective Capital Defense Representation, The ABA Guidelines, and the Twilight of the Death Penalty,” marking the 15th anniversary of the publication of the ABA Guidelines for the Appointment & Performance of Defense Counsel in Death Penalty Cases. The Guidelines, first published in 1989 and updated in 2003, set forth a national standard of care for the capital defense effort and have been used throughout the United States to assess the performance of capital defense counsel. Nationally recognized death penalty defense experts, including Project staff members, wrote articles about how the Guidelines have been used and implemented in the 15 years since their publication and discussed the challenges that capital defense teams face today.

Reclaiming Van Hook: Using The ABA’s Guidelines And Resources To Establish Prevailing Professional Norms

One article in the symposium, authored by Project Director Emily Olson-Gault and entitled “Reclaiming Van Hook: Using The ABA’s Guidelines And Resources To Establish Prevailing Professional Norms,” examines how the Guidelines have been used by the courts, challenges facing capital defenders trying to use the Guidelines, and resources provided by the ABA that can help.

In 1986 in Strickland v. Washington, the U.S. Supreme Court established a two-part test for assessing effective representation: 1) whether counsel’s performance fell below prevailing professional norms; and 2) whether counsel’s deficient performance prejudiced the client. The Supreme Court, along with hundreds of state and federal lower courts, has repeatedly turned to the Guidelines as a benchmark against which to measure the first prong of the Strickland test. In 2009, however, the Court issued a per curiam decision in Bobby v. Van Hook that injected significant uncertainty into an expansive body of case law that looked to the Guidelines. In Van Hook, the U.S. Court of Appeals for the Sixth Circuit found that Robert Van Hook’s counsel were ineffective at the penalty phase of his 1985 capital trial. Counsel did not start preparing the crucial “mitigation” case for why their client should not receive the death penalty until the guilt phase of trial had already concluded. This resulted in a “cursory” mitigation investigation that was “never finished.” The Sixth Circuit compared counsel’s performance to the standards set forth in the 2003 ABA Guidelines, which call for an “extensive and generally unparalleled investigation into personal and family history, as well as school, medical and psychological records.” Finding that counsel had clearly fallen short of these norms, and concluding that this deficient performance prejudiced Mr. Van Hook, the court ruled that Mr. Van Hook was entitled to a new sentencing hearing. The State of Ohio sought review of this decision in the U.S. Supreme Court, which—without hearing oral argument—reversed the decision of the Sixth Circuit. The Court held that use of the 2003 Guidelines as evidence of prevailing professional norms at the time of Mr. Van Hook’s 1985 trial, without stopping to consider whether those norms existed in 1985, was error.

Since this decision was issued, lower courts have diverged wildly in their use of the Guidelines, particularly as they relate to counsel performance that occurred before the Guidelines were published. Some have continued to use the Guidelines as before, simply taking the extra step—as directed by the Court in Van Hook—to examine whether the norms in the Guidelines existed at the time of trial; some have limited use of the Guidelines only to evaluate performance that occurred after the date of publication; and some have—without basis—dismissed the relevance of the Guidelines entirely.

The Death Penalty Representation Project has created a number of resources to assist practitioners with the challenges created by the Van Hook decision, including a massive online database of historical capital defense standards, training materials, and articles that can be used to support the existence of norms at the time of the challenged performance, along with an interactive version of the Guidelines that allows for easy tracking of the underlying authority for the norms set forth in the Guidelines. “Reclaiming Van Hook” details information about these resources and sets forth the strong argument for the continued relevance of the Guidelines, even as applied to counsel performance that occurred prior to their publication. 

The Ethical Argument for Funding in Clemency: The ‘Mercy’ Function and The ABA Guidelines

Also included in the Symposium is an article by Project Staff Attorney Laura Schaefer, “The Ethical Argument for Funding in Clemency: The ‘Mercy’ Function and The ABA Guidelines,” concerning the difficulty many capital practitioners face in securing adequate funding for clemency and the ethical dilemma this can cause for practitioners. In particular, the Article looks at the 2003 ABA Guideline 10.15.2, which outlines the duties of counsel in clemency proceedings.

In thinking about the funding needed to adequately perform clemency representation, Guideline 10.15.2(B) is especially relevant, as it requires that clemency counsel conduct a thorough and independent investigation consistent with Guideline 10.7. The scope of this investigation is expansive, and in the clemency context potentially even more so, because in addition to all the matters that must be investigated leading up to post-conviction proceedings, the post-conviction proceedings themselves must be reviewed and incorporated when investigating a case in clemency.

Additionally, clemency representation requires counsel to familiarize themselves with the state’s unique clemency process and decision maker and, as set forth in Guideline 10.15.2(D), seek judicial redress if the process is not substantively and procedurally just. For attorneys who are performing clemency representation for the first time or are undertaking clemency representation outside the jurisdiction in which they typically practice, these demands—together with the requirement to conduct a thorough investigation—require extensive preparation and work on the part of the attorney, which in turn requires significant financial resources.

Ms. Schaefer’s article looks at some of the reasons that courts and other entities may be reluctant to allot significant funding for clemency, specifically examining the tension between clemency’s traditional function as an extra-judicial “act of grace” and its significant role in the outcomes of many capital cases today. Additionally, the article examines Harbison v. Bell, where the Supreme Court decided that Congress intended to make federal funds available for clemency representation. Despite this guidance, however, lower courts have remained reluctant to fund attorneys’ work in this area commensurate with what the ABA Guidelines require of clemency counsel, thus creating a potential ethical conflict for attorneys.

The Article closes with an examination of three different models under which clemency is currently funded—1) the federal funds model; 2) the state funds model; and 3) the institutional defender model—and concludes that the institutional defender model is the best for avoiding potential ethical conflicts created by a lack of funding. Where attorneys are subject to funding decisions by either the federal courts or state entities, the Article argues, attorneys should point to the ABA Guidelines, as well as the Supreme Court’s decision in Harbison, to support the need for funding sufficient for representation consistent with the attorney’s professional obligations.

The full symposium is available from the Hofstra Law Review at