Re-Stating the Standard of Practice for Death Penalty Counsel: The Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases

Abstract

This is the Introduction to the Hofstra Law Review symposium issue on the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty cases, and summarizes its thirteen articles.

A central - indeed, arguably the central - duty of defense counsel in a capital case is to humanize the client in the eyes of those who will decide his fate. The daunting task of imagining, collecting, and presenting such mitigation evidence pervades counsel's responsibilities from the moment of detention on potentially capital charges to the instant of execution.

A truly multi-disciplinary team, with skills in eliciting and documenting sensitive personal information, evaluating mental health status, and pursuing the varied skeins of social, cultural, environmental, and other influences that may have shaped the client's life course is needed to collect the data for counsel and then to help shape its presentation into a narrative that will resonate with decisionmakers.

In 2003, the American Bar Association embodied these standards in its updated Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003), for which I served as Reporter.

Recognizing the central role of the mitigation function to the duties of capital defense counsel - and hence to the justice of the outcomes that will be achieved in capital cases - a diverse group of experts and organizations like the one assembled by the ABA for its project subsequently joined to develop Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases.

This special issue of the Hofstra Law Review publishes the Supplementary Guidelines together with articles elaborating the standards of practice they embody. Distinguished judges, legal scholars and practitioners, psychologists, medical doctors, and other experts explicate the creative dynamics involved in developing a fully lifelike portrait of the human being that the state seeks to execute.