An Empirical Evaluation of the Failure of the Strickland Standard to Ensure Adequate Counsel to Defendants with Mental Disabilities Facing the Death Penalty

Michael L. Perlin, Talia Roitberg Harmon, & Sarah Chatt
Social Science Research Network 
http://dx.doi.org/10.2139/ssrn.3332730

Abstract

Anyone who has been involved with death penalty litigation in the past four decades knows that one of the most scandalous aspects of that process—in many ways, the most scandalous—is the inadequacy of counsel so often provided to defendants facing execution. By now, virtually anyone with even a passing interest is well versed in the cases and stories about sleeping lawyers, missed deadlines, alcoholic and disoriented lawyers, and, more globally, lawyers who simply failed to vigorously defend their clients. This is not news.

And, in the same vein, anyone who has been so involved with this area of law and policy for the past 35 years knows that it is impossible to make sense of any of these developments without a deep understanding of the Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), the case that established a pallid, virtually-impossible-to fail test for adequacy of counsel in such litigation. Again, this is not news.

We also know that some of the most troubling results in Strickland interpretations have come in cases in which the defendant was mentally disabled—either by serious mental illness or by intellectual disability. Some of the decisions in these cases—rejecting Strickland-based appeals—have been shocking, making a mockery out of a constitutionally based standard.

To the best of our knowledge, no one has—prior to this article—undertaken an extensive empirical analysis of how one discrete US federal circuit court of appeals has dealt with a wide array of Strickland-claim cases in cases involving defendants with mental disabilities. We do this here. In this article, we reexamine these issues from the perspective of the 198 state cases decided in the Fifth Circuit from 1984 to 2017 involving death penalty verdicts in which, at some stage of the appellate process, a Strickland claim was made (in which there were only 13 cases in which any relief was even preliminarily granted under Strickland). As we demonstrate subsequently, Strickland is indeed a pallid standard, fostering “tolerance of abysmal lawyering,” and is one that makes a mockery of the most vital of constitutional law protections: the right to adequate counsel.

This article will proceed in this way. First, we discuss the background of the development of counsel adequacy in death penalty cases. Next, we look carefully at Strickland, and the subsequent Supreme Court cases that appear—on the surface—to bolster it in this context. We then consider multiple jurisprudential filters that we believe must be taken seriously if this area of the law is to be given any authentic meaning. Next, we will examine and interpret the data that we have developed, looking carefully at what happened after the Strickland-ordered remand in the 13 Strickland “victories.” Finally, we will look at this entire area of law through the filter of therapeutic jurisprudence, and then explain why and how the charade of adequacy of counsel law fails miserably to meet the standards of this important school of thought.

'They stole my life away': women forcibly sterilised by Japan speak out

Daniel Hurst
The Guardian
Originally published April 3, 2018

Here is an excerpt:

Between 1948 and 1996, about 25,000 people were sterilised under the law, including 16,500 who did not consent to the procedure. The youngest known patients were just nine or 10 years old. About 70% of the cases involved women or girls.

Yasutaka Ichinokawa, a sociology professor at the University of Tokyo, says psychiatrists identified patients whom they thought needed sterilisation. Carers at nursing homes for people with intellectual disabilities also had sterilisation initiatives. Outside such institutions, the key people were local welfare officers known as Minsei-iin.

“All of them worked with goodwill, and they thought sterilisations were for the interests of the people for whom they cared, but today we must see this as a violation of the reproductive rights of people with disabilities,” Ichinokawa says.

After peaking at 1,362 cases in a single year in the mid-1950s, the figures began to decline in tandem with a shift in public attitudes.

In 1972, the government triggered protests by proposing an amendment to the Eugenic Protection Law to allow pregnant women with disabled foetuses to have induced abortions.

The information is here.

Supreme Court to Consider Legal Standard Drawn From ‘Of Mice and Men’

Adam Liptak
The New York Times
Originally published August 22, 2016

Here is an excerpt:

Under medical standards from 1992, endorsed in Judge Cochran’s 2004 opinion, Mr. Moore was not intellectually disabled, the appeals court said. The court added that the seven factors listed in the 2004 opinion weighed heavily against Mr. Moore. He had, for instance, worn a wig during the robbery and tried to hide his shotgun in two plastic bags, which prosecutors said was evidence of forethought and planning.

In dissent, Judge Elsa Alcala said the 1992 medical standards used by the majority were “outdated and erroneous.” As for the seven factors, she wrote that “the Lennie standard does not meet the requirements of the federal Constitution.”

“I would set forth a standard,” Judge Alcala wrote, “that does not include any reference to a fictional character.”

The article is here.

IQ Cutoff for Death Penalty Struck Down by Supreme Court

By Sara Reardon and Nature News Blog
Scientific American
Originally posted on May 28, 2014

When deciding whether a defendant is too intellectually disabled to receive the death penalty, courts must take into account inherent variability in IQ scores, the US Supreme Court ruled today.

In its 5-4 decision, the court said that it is unconstitutional for states like Florida to use an IQ score of 70 as a cutoff above which a defendant is considered to be intelligent enough to understand the consequences of his or her actions.

The entire article is here.

The Fat Drug

By Pagan Kennedy
The New York Times
Originally published March 8, 2014

Here is an excerpt:

Nonetheless, experiments were then being conducted on humans. In the 1950s, a team of scientists fed a steady diet of antibiotics to schoolchildren in Guatemala for more than a year,while Charles H. Carter, a doctor in Florida, tried a similar regimen on mentally disabled kids. Could the children, like the farm animals, grow larger? Yes, they could.

Mr. Jukes summarized Dr. Carter’s research in a monograph on nutrition and antibiotics: “Carter carried out a prolonged investigation of a study of the effects of administering 75 mg of chlortetracycline” — the chemical name for Aureomycin — “twice daily to mentally defective children for periods of up to three years at the Florida Farm Colony. The children were mentally deficient spastic cases and were almost entirely helpless,” he wrote. “The average yearly gain in weight for the supplemented group was 6.5 lb while the control group averaged 1.9 lb in yearly weight gain.”

The entire article is here.