A Justice's Curious Comment About ABA Guidelines For Death Penalty Lawyers

The Supreme Court this week, in an unsigned opinion, reversed relief granted by the U.S. Court of Appeals for the 6^th Circuit to a death row inmate because of his lawyer’s ineffective assistance. But Justice Samuel Alito wrote separately—and curiously-- to emphasize his view that no “special relevance” should be given to the American Bar Association’s guidelines on the appointment and performance of defense counsel in death penalty cases.

In Bobby v. Van Hook, the justices found that, among the 6^th Circuit panel’s errors, was its reliance on ABA guidelines announced 18 years after Robert Van Hook went to trial.

The per curiam opinion said the Sixth Amendment entitled defendants to representation that does not fall below an “objective standard of reasonableness.” Restatements of professional standards, the Court added, can be useful guides as to what reasonableness entails, “but only to the extent they describe the professional norms prevailing when the representation took place.” 

The Court said the 6^th Circuit made “matters worse,” by treating the 2003 guidelines not merely as evidence of what reasonably diligent attorneys would do, “but as inexorable commands with which all capital defense counsel `must fully comply.’” 

In a concurring opinion, Justice Alito said that the ABA is a “venerable” organization with a history of service to the bar, “but it is, after all, a private group with limited membership.” Its views, he added, do not necessarily reflect the views of the bar as a whole. 

Courts must decide whether a defense lawyer’s work meets the constitutional standard, he said, adding, “I see no reason why the ABA Guidelines should be given a privileged position in making that determination.” 

One conservative court watcher, M. Edward Whelan, president of the Ethics and Public Policy Center, voiced his pleasure with Alito’s comments in a post on the Bench Memos blog. 

“The American Bar Association’s pursuit of its ideological agenda is all the more obnoxious because the ABA purports to be `the national representative of the legal profession,’” he wrote. “I’m pleased to see that Justice Alito…rejects the ABA’s nonsense.” 

The ABA’s 2003 guidelines have been cited widely in decisions by state and federal courts, including the Supreme Court, most recently in Rompilla v. Beard, a 2005 decision finding ineffective assistance of counsel in a death case. 

“The law has always been that the ABA guidelines are only guides to putting content on the very vague Strickland standard,” said Eric Freedman of Hofstra University School of Law, a member of the steering committee of the ABA’s Death Penalty Representation Project. The original guidelines were approved in 1989 and revised and adopted without dissent in 2003. 

Freedman said that if the entire court had endorsed Alito’s comments, the justice would not have had to write separately; the comments would have been in the opinion. 

“No one is suggesting the ABA has some special role,” said Freedman, adding the guidelines are an “honest effort” to state what a reasonable attorney would do in these cases. 

“The ultimate point is courts are to decide the [ineffective assistance] issue,” he said. “If a judge is asked what was the standard of care in 1990, he or she has to find it somewhere. It certainly seems a sensible viewpoint, which the per curiam opinion doesn’t contest, that in seeking illumination, the carefully written ABA standards are one good place to look.”         

Comments

[Joe]

"the Courts that follow and do not lead"

sounds elitist

[anon]

what is the alternative to ABA guidelines? looking to actual practice in a state like Alabama with no public defender system, very few competent capital trial attorneys, and inadequate funding for trial and appellate counsel (total appellate compensation capped at $2000)?

A purely "descriptive" approach to reasonable performance under the 6th amendment would be a practical and moral disaster in many states, and would actually encourage states to water down the quality of defense representation.

[Oscar in Miami beach]

It is the standards of an elitist group that being composed of private people are based on their own interest.They do not represent the majority's views nor such any Court take their recommendations to based decisions on.The problem is that Judges are lawyers and so rather than think by themeselves and research the laws,they follow the dictates of the ABA as the Bible.The Courts are wrong but the Judges are to dumb to do otherwise.Shame on the Courts that follow and do not lead.

[JKP]

Of course, Alito is completely wrong in part.

The ABA is certainly not "venerable".