Implementation of the 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases In 2001, the ABA Death Penalty Representation Project led the effort to revise the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases ( ABA Guidelines ). 1 The ABA Guidelines were overwhelmingly approved by the ABA House of Delegates on February 10, 2003. 2 The ABA Guidelines are now the recognized national standard of care for the defense effort in death penalty cases. They provide detailed guidance for capital defenders about the essential elements of effective representation. The ABA Guidelines are also regularly utilized by state and federal courts, including the U.S. Supreme Court, to assess counsel performance during appellate review and to understand the necessary qualifications, funding, and resources for the defense team at trial and in post-conviction proceedings. 3 U.S. Supreme Court Cases: In Wiggins v. Smith, 539 U.S. 510 (2003), the U.S. Supreme Court found trial counsel ineffective because they had improperly limited their mitigation investigation. In so finding, the Court found that defense counsels conduct fell short of the standards for capital defense work articulated by the American Bar Association (ABA) standards to which we have long referred as guides to determining what is reasonable. 4 The Court also noted that counsels performance fell below the welldefined norms described in the Guidelines. In Rompilla v. Beard, 545 U.S. 374 (2005), the U.S. Supreme Court found trial counsel ineffective because they had failed to follow the clear requirements for investigation set forth in the ABA Guidelines. 5 The Court 1 The 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases can be found on the ABA Death Penalty Representation Project s website at http://www.ambar.org/2003guidelines and at 31 Hofstra L.R. 913 (2003). 2 ABA House of Delegates Resolution 107, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003). Copy available at http://www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_moratorium/ad option_guidelines.authcheckdam.pdf. 3 Visit http://www.americanbar.org/groups/committees/death_penalty_representation/resources/aba_gui delines.html for a continually updated list of cases that cite to the ABA Guidelines. 4 Id. at 524. 5 Id. at 387 n.7. Page 1 of 6
quoted from several individual Guidelines to illustrate how unreasonable counsels decisions were in light of prevailing professional norms. The ABA believes that all death penalty jurisdictions would benefit from use of the ABA Guidelines. 6 The Project frequently works with state and national judicial groups, advises state legislators and state bar associations, and trains capital defenders and judges about why using and judicially enforcing the ABA Guidelines will help ensure justice in capital cases. Some examples of death penalty jurisdictions that utilize the ABA Guidelines follow: In 2012, the Maricopa County, Arizona Superior Court adopted a Plan to serve as a Legal Representation Plan as described in Guideline 2.1 of the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (the ABA Guidelines ). The Plan also established a committee to certify defense counsel which is intended to perform some of the duties of a Responsible Agency as provided in Guideline 3.1 of the ABA Guidelines. To be certified as eligible for appointment, counsel must meet criteria which includes meeting the qualifications of Guideline 5.1 and a demonstrated history of practice, and can be expected to continue to practice, in accordance with the performance and practice standards set forth in Guidelines 10.1 through 10.13 of the ABA Guidelines. 7 In 2010, the State of Louisiana adopted by administrative regulation the Louisiana Capital Defense Guidelines 8 which are intended to adopt and apply the guidelines for capital defense set out by the [ABA Guidelines]. 9 6 ABA House of Delegates Resolution (1997), available at http://www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_moratorium/ab a_policy_consistency97.authcheckdam.pdf. 7 Administrative Order No. 2012-118, In the Matter of Adopting a Plan for Review of Appointed Defense Counsel. adopted by Maricopa County Superior Court Presiding Judge Norman J. Davis, Aug. 10, 2012. Copy available at https://www.superiorcourt.maricopa.gov/superiorcourt/administrativeorders/adminorders/admin %20Order%202012-118.pdf. 8 La. Admin. Code tit. 22, pt. XV, 901 927 (2011). Copy available at dards/state/la_capital_defense_guidelines.authcheckdam.pdf. 9 Id. at 901(3). Page 2 of 6
In 2010, amended Rule 20.03 of the Rules of Superintendence for the Courts of Ohio required that [t]he appointing court shall monitor the performance of all defense counsel to ensure that the client is receiving representation that is consistent with the American Bar Association s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.... 10 Rule 20.01 also requires that capital counsel demonstrate[] commitment to providing high quality legal representation... 11 which is defined as representation that is consistent with the [ABA Guidelines]. 12 A 2010 Report to the Committee on Defender Services of the Judicial Conference of the United States indicates that [a]s provided in the Defender Services Program Strategic Plan, counsel in federal death penalty cases are expected to comply with Guidelines 1.1 and 10.2 et seq. of the [ABA Guidelines]. 13 In 2009, Congress announced its expectation that the Secretary of Defense give the ABA Guidelines appropriate consideration in promulgating regulations for the appointment and performance of defense counsel in military commissions proceedings where the death penalty is sought. 14 In 2009, the Wyoming Office of the Public Defender indicated that it would follow the 2003 ABA Guidelines to ensure that sufficient resources are available to effectively represent clients faced with death as the possible punishment. 15 10 Ohio Sup. R. 20.03(A). Copy available at dards/state/ohio_amend_to_sup_r_20_20_05_final_.authcheckdam.pdf. 11 Ohio Sup. R. 20.01(A)(1). 12 Ohio Sup. R. 20.03(A). 13 Jon B. Gould and Lisa Greenman, Report to the Committee on Defender Services, Judicial Conference of the United States: Update on the Cost and Quality of Defense Representation in Federal Death Penalty Cases, 91 (Sept. 2010), available at http://www.uscourts.gov/federalcourts/appointmentofcounsel/viewer.aspx?doc=/uscourts/fede ralcourts/appointmentofcounsel/fdpc2010.pdf&page=1. 14 The statement was included in the Joint Explanatory Statement of the Committee on Conference accompanying H.R. 2647, the National Defense Authorization Act for the Fiscal Year 2010, which was submitted on October 7, 2009. H.R. Rep. No. 111-288, at 863 (2009). Copy available at http://www.gpo.gov/fdsys/pkg/crpt-111hrpt288/pdf/crpt-111hrpt288.pdf. 15 Wyoming Office of the Public Defender, Office of the Public Defender Strategic Plan, at 4 (Sept. 1, 2009). Copy available at http://wyodefender.state.wy.us/files/strategicplan.pdf. Page 3 of 6
In 2008, the San Francisco and Alameda County Bar Associations adopted resolutions urging all California jurisdictions seeking a sentence of death to require compliance with the ABA Guidelines and urging the Judicial Counsel of California to modify the Rules of Court to be consistent with the ABA Guidelines. In 2008, the Maryland Commission on Capital Punishment s Final Report to the General Assembly recognized that the ABA Guidelines provide the minimum standard of care required in all capital cases: Effective representation in a capital case will be measured according to the ABA s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. 16 In 2008, the California Commission on the Fair Administration of Justice s Report and Recommendations on the Administration of the Death Penalty in California recognized that the ABA Guidelines provide the minimum standard of care required in all capital cases. The report noted that, In defining prevailing professional norms, the [U.S. Supreme] Court relied upon the guidelines for capital defense work articulated by the American Bar Association (ABA Guidelines)... 17 The Report recommended that funds be made available to ensure that all appointments of private counsel to represent death row inmates on direct appeals and habeas corpus proceedings comply with ABA Guidelines 4.1(A). 18 The Report further recommended that California counties provide adequate funding for the appointment and performance of trial counsel in death penalty cases in full compliance with ABA Guidelines 9.1(B)(1), 3.1(B), and 4.1(A)(2). 19 In 2008, the Nevada Supreme Court issued new standards for the defense of capital cases 20 that substantially conform to the 2003 ABA Guidelines. 21 16 Maryland Commission. on Capital Punishment, Final Report to the General Assembly, at 76 (Dec. 12, 2008). Copy available at http://www.goccp.maryland.gov/capitalpunishment/documents/death-penalty-commission-final-report.pdf. 17 California Commission on the Fair Administration of Justice, Report and Recommendations on the Administration of the Death Penalty in California, at 40 (June 30, 2008). Copy available at http://www.ccfaj.org/documents/reports/dp/official/final%20report%20death%20penalty.pdf. 18 Id. at 8. 19 Id. at 9. 20 Nevada Indigent Defense Standards of Performance, Order, ADKT No. 411, Ex. A, Supreme Court of Nevada, In the Matter of the Review of Issues Concerning Representation of Indigent Defendants in Criminal and Juvenile Delinquency Cases. Copy available at http://www.washoecounty.us/repository/files/36/adkt411.capperfstds.pdf. Page 4 of 6
In 2007, Oregon s Office of Public Defense Services adopted the 2003 ABA Guidelines, noting that a growing number of cases, including United States Supreme Court cases, look to the ABA standards as a statement of the standard of adequate representation in death penalty cases. 22 In 2006, the Arizona Supreme Court amended Arizona Criminal Procedure Rule 6.8 to require that death penalty counsel in trial, appellate, and post-conviction proceedings be familiar with and guided by the performance standards of the ABA Guidelines. 23 In 2006, the Texas State Bar Board of Directors adopted the Guidelines and Standards for Texas Capital Counsel, which they described as a Texas-specific version of the ABA Guidelines. 24 In 2005, the Georgia Public Defender Standards Council adopted the ABA Guidelines. 25 In 2005, the Alabama Circuit Court Judge s Association adopted the ABA Guidelines by resolution so that an optimum standard can be set for circuit judges to attempt to achieve in capital cases. 26 21 Order, ADKT No. 411, Supreme Court of Nevada, In the Matter of the Review of Issues Concerning Representation of Indigent Defendants in Criminal and Juvenile Delinquency Cases. Copy available at dards/state/nevada_guidelines.authcheckdam.pdf. 22 Office of Public Defense Services, Report to the Public Defense Services Commission: Delivery of Public Defense Services In Death Penalty Cases, at 9 (June 14, 2007). Copy available at dards/state/or_adoption_of_aba_guidelines.authcheckdam.pdf. 23 Ariz. R. Crim. P. 6.8(b)(1)(iii), (c)(3). Copy available at dards/state/az_rule_crim_pro_6_8.authcheckdam.pdf. 24 Guidelines and Standards for Texas Capital Counsel, State Bar of Texas, 69 Tex. Bar J. 10, 966-982 (Nov. 2006). Copy available at dards/state/tx_bar_association_adopted_version_of_aba_guidelines.authcheckdam.pdf. 25 Georgia Death Penalty Standards, available at dards/state/ga_death_penalty_standards.authcheckdam.pdf. Page 5 of 6
In 2003, the National Association of Criminal Defense Lawyers (NACDL) adopted the ABA Guidelines, noting that they are necessary standards to ensure minimally adequate representation in capital cases. 27 In 2003, the Department for Public Advocacy for the Commonwealth of Kentucky adopted the performance standards of the ABA Guidelines. 28 Please contact the ABA Death Penalty Representation Project if we can answer questions or provide more information at 202-662-1738 or deathpenaltyproject@americanbar.org. For more information about our work, please visit our website at http://www.americanbar.org/deathpenalty. 26 Alabama Circuit Judge s Association Resolution (Jan. 21, 2005). Copy available at dards/state/alabama_resolution_for_aba_guidelines_aug_2007.authcheckdam.pdf. 27 National Association of Criminal Defense Lawyers Board of Directors Resolution to Adopt the Revised ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (May 3, 2003). Copy available at http://www.nacdl.org/about.aspx?id=19853. 28 Attorneys assigned by the Department to a capital case are contractually obligated to meet the performance standards. A copy of the contract is on file with the ABA Death Penalty Representation Project. Page 6 of 6