Michael L. Perlin, Talia Roitberg Harmon, & Sarah Chatt
Social Science Research Network
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.