The Afterlife of Ford and Panetti: Execution Competence and the Capacity to Assist Counsel

The capacity to assist counsel and communicate a defense once held a central place in assessing competence for execution. Since Ford v. Wainwright (1986), however, courts have discarded this measure, viewing Justice Powell’s concurring opinion, which required only that a prisoner understand the execution as mortal punishment for a capital crime, as the Eighth Amendment rule. In a significant development, the Supreme Court’s decision in Panetti v. Quarterman (2007) - its first interpreting Ford - sends notice that Justice Powell’s statements on the substantive standard are not Ford\u27s rule, providing a long overdue opportunity to address whether executing prisoners with severe mental illness who lack the capacity to assist counsel contravenes evolving standards of decency. Current concerns with the execution of innocent prisoners and difficulties determining execution competence since Ford support reinstating the capacity to assist counsel in the Eighth Amendment test. This Article, urging future work in courts and scholarship, initiates a discussion about the proper scope of the Ford prohibition

The Afterlife of Ford and Panetti: Execution Competence and the Capacity to Assist Counsel

The capacity to assist counsel and communicate a defense once held a central place in assessing competence for execution. Since Ford v. Wainwright (1986), however, courts have discarded this measure, viewing Justice Powell’s concurring opinion, which required only that a prisoner understand the execution as mortal punishment for a capital crime, as the Eighth Amendment rule. In a significant development, the Supreme Court’s decision in Panetti v. Quarterman (2007) - its first interpreting Ford - sends notice that Justice Powell’s statements on the substantive standard are not Ford\u27s rule, providing a long overdue opportunity to address whether executing prisoners with severe mental illness who lack the capacity to assist counsel contravenes evolving standards of decency. Current concerns with the execution of innocent prisoners and difficulties determining execution competence since Ford support reinstating the capacity to assist counsel in the Eighth Amendment test. This Article, urging future work in courts and scholarship, initiates a discussion about the proper scope of the Ford prohibition

Cultural Competency in Capital Mitigation

Cultural factors so pervasively influence the interactions of the client with other people - including all of those with whom he comes into contact at significant times in his life (e.g. in educational, medical, and correctional institutions), those surrounding him in the community in which he develops, and, critically, the members of the defense team - that it is imperative for the defense team to have the talents necessary to conduct a mitigation investigation that is culturally competent. The investigation must recognize and surmount an array of barriers, overt and subtle, to obtaining information from people of variegated backgrounds. As the courts have long recognized, in the context of mitigation, culturally competent investigation is more than an admirable and desirable skill. It is a standard of performance. Building on the framework provided by the ABA\u27s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue, this article details what capital defense counsel needs to do in order to (a) meet that standard and (b) of equal importance, utilize the fruits of the investigation to construct a persuasive narrative of the client\u27s life course that emerges authentically from his culture. Counsel must comprehend the world from the client\u27s viewpoint and be able to present his life story from the inside out

Reliability Matters: Reassociating Bagley Materality, Strickland Prejudice, and Cumulative Harmless Error

Most commonly invoked after conviction and direct appeal, when a defendant may claim that his lawyer was ineffective or that the government failed to disclose exculpatory information, the Brady doctrine, which governs the prosecutor’s duty to disclose favorable evidence to the defense, and the Strickland doctrine, which monitors defense counsel’s duty to represent the client effectively, have developed into the principal safeguards of fair trials, fundamental to the protection of defendants’ constitutional rights and arguably defendants’ strongest insurance of a reliable verdict. But the doctrines do not sufficiently protect these core values. The doctrines, despite their common due process heritage and symbiotic development, are generally divided when assessing prejudice. Even in cases where the defendant alleges both that the prosecution withheld evidence and that his counsel was incompetent, courts assess the impact of each party’s conduct on the verdict independently. Our objectives here are two-fold. Our more modest objective is to argue that courts should consider the impact of Brady violations and Strickland violations together when evaluating whether a guilty verdict or death sentence is reliable. Few courts and no commentators, however, have directly tackled this issue. Our second objective is more ambitious. If Strickland and Brady errors should be considered jointly when assessing prejudice, then why shouldn’t the impact of all errors that potentially affective the reliability of a verdict be taken into account? Part I begins by tracing the history of the Strickland and Brady doctrines. Beginning with Part II we address three problems that we see as dividing reliability determinations. We next consider the relationship between the Brady and Strickland doctrines, in Part III. Our call is for integrating Strickland prejudice and Bagley materiality. Part IV expands the argument for cumulation beyond ineffective assistance of counsel and prosecutorial suppression. Our call here is for a rule of integration requiring courts to consider the unified impact on the verdict of all errors affecting reliability

Reliability Matters: Reassociating Bagley Materality, Strickland Prejudice, and Cumulative Harmless Error

Most commonly invoked after conviction and direct appeal, when a defendant may claim that his lawyer was ineffective or that the government failed to disclose exculpatory information, the Brady doctrine, which governs the prosecutor’s duty to disclose favorable evidence to the defense, and the Strickland doctrine, which monitors defense counsel’s duty to represent the client effectively, have developed into the principal safeguards of fair trials, fundamental to the protection of defendants’ constitutional rights and arguably defendants’ strongest insurance of a reliable verdict. But the doctrines do not sufficiently protect these core values. The doctrines, despite their common due process heritage and symbiotic development, are generally divided when assessing prejudice. Even in cases where the defendant alleges both that the prosecution withheld evidence and that his counsel was incompetent, courts assess the impact of each party’s conduct on the verdict independently. Our objectives here are two-fold. Our more modest objective is to argue that courts should consider the impact of Brady violations and Strickland violations together when evaluating whether a guilty verdict or death sentence is reliable. Few courts and no commentators, however, have directly tackled this issue. Our second objective is more ambitious. If Strickland and Brady errors should be considered jointly when assessing prejudice, then why shouldn’t the impact of all errors that potentially affective the reliability of a verdict be taken into account? Part I begins by tracing the history of the Strickland and Brady doctrines. Beginning with Part II we address three problems that we see as dividing reliability determinations. We next consider the relationship between the Brady and Strickland doctrines, in Part III. Our call is for integrating Strickland prejudice and Bagley materiality. Part IV expands the argument for cumulation beyond ineffective assistance of counsel and prosecutorial suppression. Our call here is for a rule of integration requiring courts to consider the unified impact on the verdict of all errors affecting reliability

Of Atkins and Men: Deviations from Clinical Definitions of Mental Retardation in Death Penalty Cases

Under Atkins v. Virginia, the Eighth Amendment exempts from execution individuals who meet the clinical definitions of mental retardation set forth by the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association. Both define mental retardation as significantly subaverage intellectual functioning accompanied by significant limitations in adaptive functioning, originating before the age of 18. Since Atkins, most jurisdictions have adopted definitions of mental retardation that conform to those definitions. But some states, looking often to stereotypes of persons with mental retardation, apply exclusion criteria that deviate from and are more restrictive than the accepted scientific and clinical definitions. These state deviations have the effect of excluding from Atkins\u27s reach some individuals who plainly fall within the class it protects. This article focuses on the cases of Roger Cherry, Jeffrey Williams, Michael Stallings and others, who represent an ever-growing number of individuals inappropriately excluded from Atkins. Left unaddressed, the state deviations discussed herein permit what Atkins does not: the death-sentencing and execution of some capital defendants who have mental retardation

Of Atkins and Men: Deviations from Clinical Definitions of Mental Retardation in Death Penalty Cases

Under Atkins v. Virginia, the Eighth Amendment exempts from execution individuals who meet the clinical definitions of mental retardation set forth by the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association. Both define mental retardation as significantly subaverage intellectual functioning accompanied by significant limitations in adaptive functioning, originating before the age of 18. Since Atkins, most jurisdictions have adopted definitions of mental retardation that conform to those definitions. But some states, looking often to stereotypes of persons with mental retardation, apply exclusion criteria that deviate from and are more restrictive than the accepted scientific and clinical definitions. These state deviations have the effect of excluding from Atkins\u27s reach some individuals who plainly fall within the class it protects. This article focuses on the cases of Roger Cherry, Jeffrey Williams, Michael Stallings, and others, who represent an ever-growing number of individuals inappropriately excluded from Atkins. Left unaddressed, the state deviations discussed herein permit what Atkins does not: the death-sentencing and execution of some capital defendants who have mental retardation

An Empirical Look at Atkins v. Virginia and its Application in Capital Cases

In Atkins vs. Virginia, the Supreme Court declared that evolving standards of decency and the Eighth Amendment prohibit the death penalty for individuals with intellectual disability (formerly, mental retardation ). Both supporters and opponents of the categorical exemption, however, have criticized the Atkins opinion. The Atkins dissent, for example, urged that the decision would open the gates of litigation to a flood of frivolous claims. Another prominent criticism, heard from those more supportive of the Court\u27s ruling, has been that the language the Court used communicating that states must generally conform to the clinical definitions of mental retardation is ambiguous enough to permit states to stray from the clinical definitions and, consequently, for death eligibility to vary depending upon the jurisdiction in which a defendant is charged. This Article presents preliminary data responsive to these issues, and reports three basic findings. First, Atkins has not opened floodgates of non-meritorious litigation. Second, the success rates for Atkins claims vary dramatically between states and state deviations from the clinical definitions appear to have a palpable impact. Third, as compared to their representation on death row, African-American defendants both file and win a disproportionately high number of Atkins claims

Of Atkins and Men: Deviations from Clinical Definitions of Mental Retardation in Death Penalty Cases

Under Atkins v. Virginia, the Eighth Amendment exempts from execution individuals who meet the clinical definitions of mental retardation set forth by the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association. Both define mental retardation as significantly subaverage intellectual functioning accompanied by significant limitations in adaptive functioning, originating before the age of 18. Since Atkins, most jurisdictions have adopted definitions of mental retardation that conform to those definitions. But some states, looking often to stereotypes of persons with mental retardation, apply exclusion criteria that deviate from and are more restrictive than the accepted scientific and clinical definitions. These state deviations have the effect of excluding from Atkins\u27s reach some individuals who plainly fall within the class it protects. This article focuses on the cases of Roger Cherry, Jeffrey Williams, Michael Stallings, and others, who represent an ever-growing number of individuals inappropriately excluded from Atkins. Left unaddressed, the state deviations discussed herein permit what Atkins does not: the death-sentencing and execution of some capital defendants who have mental retardation