Mend It or End It?: The Revised ABA Capital Defense Representation Guidelines as an Opportunity to Reconsider the Death Penalty

The revised edition of the ABA\u27s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases offers a lens through which to consider whether retention of capital punishment is sensible public policy. A reader of the Guidelines finds that the current death penalty system is characterized by severely impaired clients, pervasive racism, a structural bias in favor of guilty verdicts, less effective counsel than in non-capital cases, and a dysfunctional system of post-conviction review. No amount of money can solve these problems; at best, sufficient expenditures can ameliorate them. But making even that attempt will be costly - not just because of the amounts spent, but because those amounts are likely to be diverted from structural improvements that would produce tangible benefits to the criminal justice system as a whole. As the states consider this situation, perhaps an unintended but welcome effect of the Guidelines\u27 stark portrayal of the realities confronting them will be to prompt a re-consideration of the choice to have a death penalty at all

Fewer Risks, More Benefits: What Governments Gain by Acknowledging the Right to Competent Counsel on State Post-Conviction Review in Capital Cases

The acknowledgment that there is a right to the effective assistance of counsel in state post-conviction proceedings would serve the interests of the state and federal governments. Most death penalty states have already decided to provide capital post-conviction counsel but by failing to insist that the representation be competent they have forfeited procedural advantages they would otherwise enjoy in federal habeas corpus litigation, shifted unwarranted costs to the federal government, incurred serious litigation risks for the future, and impaired both the efficiency and the fairness of their systems of criminal justice

The Suspension Clause in the Ratification Debates

The issue of the proper scope of the federal writ of habeas corpus has for the past several decades generated repeated political struggles in the judicial, legislative, and executive arenas.1 The prominence of this seemingly arcane legal question is not difficult to explain; it implicates a series of fundamental issues of public policy: crime control, civil liberties, the allocation of power and responsibility between branches and levels of government, and the justice and efficacy of the criminal justice system, particularly with regard to the death penalty. Yet the habeas corpus debate has taken place in the context of an astonishing dearth of historical knowledge. This phenomenon results from the fact that the field has fallen into an uneasy scholarly void between law and history. It is too technically complex to be studied by those lacking a serious legal background, but lawyers are ill-suited for the pursuit because reported judicial opinions- the lawyer\u27s primary research source-are an unreliable indication of the actual extent of habeas corpus litigation and the types of restraints for which the writ was issued

Who\u27s Afraid of the Criminal Law Paradigm in the War on Terror?

The criminal law paradigm is now, and has been from the beginning, the right one to apply to the fight against terrorism. The decision whether to respond to the individuals who perpetrated 9/11 within a war or a criminal framework was from the first day a policy choice. If President Bush had been competently advised by the White House Counsel, Alberto Gonzales, he would have been told that there was a choice to be made and further told that either decision would subject his actions to legal restraints. What actually happened, as far as I can see, is that Gonzales accepted Bush\u27s assertion we are at war as though this were a description of objective empirical reality rather than a political determination. There almost certainly was not a well thought-out decision to choose between the war and criminal paradigms, each of which would involve benefits and burdens to the Executive Branch. Instead, Gonzales seemingly shared his boss\u27s lay notion that war is shorthand for the President can do whatever he damn pleases, and the word went forth from the White House that the government was to unleash all the forces at its command to liquidate enemies of the state