'Far from the Turbulent Space': Considering the Adequacy of Counsel in the Representation of Individuals Accused of Being Sexually Violent Predators

Abstract

For the past thirty years, the US Supreme Court's standard of Strickland v. Washington has governed the question of adequacy of counsel in criminal trials. There, in a Sixth Amendment analysis, the Supreme Court acknowledged that simply having a lawyer assigned to a defendant was not constitutionally adequate, but that that lawyer must provide "effective assistance of counsel," effectiveness being defined, pallidly, as requiring simply that counsel's efforts be "reasonable" under the circumstances. The benchmark for judging an ineffectiveness claim is simply "whether counsel’s conduct so undermined the proper function of the adversarial process that the trial court cannot be relied on as having produced a just result." This standard, however, has proven to fall far short of insuring that counsel is truly adequate: that she investigates the case, provides the defendant with all the information necessary for the defendant to make informed choices, and to mount a vigorous defense at trial.

Over a decade ago, in In re the Mental Health of K.G.F., the Montana Supreme Court acknowledged that the Strickland standard might not be a sufficient test of adequacy in cases involving involuntary civil commitment, relying on state statutory and constitutional sources to find that "the right to counsel...provides an individual subject to an involuntary commitment proceeding the right to effective assistance of counsel. In turn, this right affords the individual with the right to raise the allegation of ineffective assistance of counsel in challenging a commitment order." In assessing what constitutes "effectiveness," the court -- startlingly, to our minds -- eschewed the Strickland standard as insufficiently protective of the "liberty interests of individuals such as K.G.F., who may or may not have broken any law, but who, upon the expiration of a ninety-day commitment, must indefinitely bear the badge of inferiority of a once involuntarily committed person with a proven mental disorder." Importantly, one of the key reasons why Strickland was seen as lacking was the court's conclusion that "reasonable professional assistance" -- the linchpin of the Strickland decision -- "cannot be presumed in a proceeding that routinely accepts -- and even requires -- an unreasonably low standard of legal assistance and generally disdains zealous, adversarial confrontation."

In this paper, we turn our attention to another aspect of the justice system that does not involve a pending criminal prosecution but which may potentially lead to lengthy -- indeed, potentially lifetime -- periods of institutionalization: proceedings that follow the invocation of Sexually Violent Predator Acts (SVPA). The question that we address is this: Does, at the least, the Strickland standard apply to such cases, or should a more rigorous standard -- à la K.G.F. -- be employed?

Interestingly, there have been multiple cases decided on the question of whether the failure of counsel to inform a client that a guilty plea in a criminal trial might make the client eligible for SVPA proceedings. Courts have split, finding, on one hand, that -- because of, among other reasons, "the severity of [the[ consequences" of potential SVPA commitment -- this failure rose to the level of ineffectiveness of counsel, while others have rejected these claims, noting that the SVPA proceeding is merely "civil and regulatory in nature." Those cases that have found Strickland violations have mostly drawn on the Supreme Court's decision in Padilla v. Kentucky, holding that counsel's failure to advise his client about the potential immigration/deportation consequences of a guilty plea were to be assessed by the Strickland standard, whereas those that rejected application of Strickland have, by and large, limited Padilla to the context of deportation, and thus inapplicable to SVPA commitments. Those cases that have applied Strickland, following Padilla, have generally recognized that "lack of knowledge about serious consequences undermines the basic fairness and legitimacy of a guilty plea but few cases have extended this concept to notification of the consequence of the SVPA."

We assert that Strickland -- especially given the pallid interpretations of Strickland that have passed constitutional muster in felony cases -- is an insufficient predicate for a finding of constitutionality in such proceedings and that, again, in the wake of K.G.F., a more searching standard (albeit a different one from K.G.F.) must be employed.

We say this for three main reasons: 1. SVPA proceedings normally turn on the interpretation of several controversial psychometric tests, and there is no evidence whatsoever that the bulk of lawyers doing such cases has any familiarity with these instruments and with the literature about their validity and reliability. 2. Although the Supreme Court has held in Ake v. Oklahoma that a defendant has a right to an independent expert in a felony trial, there is scant analogous case or statutory law with regard to SVPA matters. This makes it even less likely that counsel will be able to ably launch a defense in such cases. 3. There is no question that the population in question is the most despised group of individuals in the nation. Society’s general revulsion towards this population is shared by judges, jurors and lawyers. Although the bar pays lip service to the bromide that counsel is available for all, no matter how unpopular the cause, the reality is that there are few volunteers for the job of representing these individuals, and that the public's enmity has a chilling effect on the vigorous of representation in this area.

For all of these reasons, we propose a new standard for such cases: We believe that, in order to be effective at an SVPA hearing, counsel must demonstrate a familiarity with the psychometric tests regularly employed at such hearings, and with relevant expert witnesses who could assist in the representation of the client, experts who would be appointed by the court at no cost to the person facing sex offender adjudication in the same manner envisioned by the Ake Court in insanity cases. Further, we believe that the use of such a standard would also best comport with the principles of therapeutic jurisprudence.