Race: How It Impacts the Way We Tell Our Client’s Story – Christian Lamar, Gary Parker, and Jerilyn Bell
A common sense discussion of how race impacts everything from the team’s interaction with the client and his or her family to how the jury receives our narrative.
In Search of Nice Jesus People – Christian Lamar, Josh Noblitt, Gary Parker, Nathanial Studelska, and Jerry Word
A discussion of how religious beliefs impact our clients and their families. Plus, how to voir dire a jury on religion, even if you are a non-believer. Themes of redemption, mercy, and forgiveness that resonate with jurors.
Black Boys and Men: Changing the Narrative – Anthony L. Ricco
This session will focus on the importance of cultural, race, and ethnicity in criminal cases. Anthony Ricco will begin with a brief discussion of the history of slavery, segregation, and mass incarceration. He will then discuss how these issues are important in telling your client’s story.
Defending Gang Cases – Dr. John Hagedorn
In this session, Dr. John M. Hagedorn will begin with the power of stereotypes in gang cases. He will also discuss how to combat gang stereotypes throughout the criminal prosecution process.
Telling a Client’s Story Through Good Mitigation Investigation – Anupama Vishwamitra and Faith Sills
This session will overview how to conduct a proper mitigation investigation. Particular emphasis will be placed on mental illness and domestic violence.
“A Practitioner’s Guide to Defending Capital Clients Who Have Mental Disorders and Impairments” by Anne James and Matthew Cross (2006)
Abstract: This manual focuses on the issues arising solely in the representation of persons with mental disorders and impairments in death penalty cases. It does not address the legal excuses for criminal responsibility, the various affirmative defenses such as not guilty by reason of insanity or diminished capacity, available in both capital and non-capital contexts. Clearly, the assertion of such defenses implicates myriad strategic considerations in death penalty cases—most notably, how to resolve the inherent conflict between offering mental health evidence as an excuse in the first phase of a trial and then, if it is rejected for that purpose, arguing that the same evidence is not an excuse, but a reason to spare an individual’s life. In most jurisdictions, insanity defenses may also expose the client to early discovery of defense work product and a wide-ranging evaluation by a prosecution expert. It is simply beyond the scope of this manual to discuss these complex legal and strategic questions. Instead, the manual focuses on the issues unique to capital cases (especially mitigation evidence). Competency questions are addressed because of the unusual ways in which they implicate every phase of capital litigation. Read the full guide.
“Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases” by the American Bar Association (2003)
Abstract: This revised edition of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases is the product of a two-year long drafting effort. In April 2001, the ABA Standing Committee on Legal Aid and Indigent Defendants and the ABA Special Committee on Death Penalty Representation jointly sponsored the ABA Death Penalty Guidelines Revision Project to update the Guidelines, which were originally adopted by the ABA House of Delegates in 1989. An Advisory Committee of experts was recruited to review and identify necessary revisions, including representatives from the following ABA and outside entities: ABA Criminal Justice Section; ABA Section of Litigation; ABA Section on Individual Rights and Responsibilities; ABA Standing Committee on Legal Aid and Indigent
Defendants; ABA Special Committee on Death Penalty Representation; National Association of Criminal Defense Lawyers; National Legal Aid and Defender Association; Federal Death Penalty Resource Counsel; Habeas Assistance and Training Counsel; and State Capital Defenders Association.
Expert capital litigators were retained as consultants to the ABA Death Penalty Guidelines Revision Project to incorporate the decisions of the Advisory Committee into preliminary drafts of revisions. Drafts were considered by Advisory Committee members during several day-long meetings in Washington, D.C. as well as follow-up discussions. The final working draft of the revisions was approved by the ABA Standing Committee on Legal Aid and Indigent Defendants and the ABA Special Committee on Death Penalty Representation. The ABA House of Delegates approved the revised edition of the Guidelines on February 10, 2003. Read the full guide.
“Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases” by the American Bar Association (2008)
Abstract: The ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003 revision) assign to lead counsel (at Guideline 10.4(B)) the responsibility for conducting a thorough investigation relating to both guilt and penalty, regardless of any statement by the client opposing such investigation. (Guideline 10.7) To meet this responsibility, lead counsel must assemble a capital defense team consisting of no fewer than two qualified attorneys, an investigator, and a mitigation specialist – with at least one member of that team qualified by training and experience to screen for the presence of mental or psychological disorders or impairments. (Guidelines 4.1 and 10.4 C). Read the full guide.
Intellectual Disability, The Death Penalty, and Jurors
Emily V. Shaw and Scurich, Nicholas and Faigman, David L., Intellectual Disability, The Death Penalty, and Jurors (June 5, 2018). Jurimetrics, Vol. 58, 2018, Forthcoming; UC Hastings Research Paper No. 286; UC Irvine School of Law Research Paper No. 2018-45. Available at SSRN: https://ssrn.com/abstract=3191190.
Abstract: In Atkins v. Virginia (2002), the United States Supreme Court held that intellectually disabled defendants cannot be sentenced to death; but since then, the Court has continued to grapple with how intellectual disability should be legally defined. Typically, however, it is jurors who determine whether a defendant is intellectually disabled and therefore categorically ineligible for the death penalty. Very little is known empirically about how jurors’ reason about and make these decisions. This Article presents the results of a novel experiment in which venire jurors participated in an intellectual disability hearing and a capital sentencing hearing. The diagnosis of a court-appointed expert was experimentally manipulated (defendant is or is not intellectually disabled), as was the provision of information about the crime (present or absent). Jurors were consider-ably more likely to find the defendant not disabled when the expert opined that the defendant was not disabled. They were also more likely to find the defendant not disabled when they learned about the details of the crime. Similarly, jurors were more likely to sentence the defendant to death after learning about the details of the crime, which in-creased perceptions of both the defendant’s blameworthiness and his mental ability. These findings highlight the reality that jurors’ assessments of intellectual disability are influenced by crime information, contrary to pronouncements made by the United States Supreme Court, and they support the use of bifurcated disability proceedings, as some states have recently adopted.
Is Powell Still Valid? The Supreme Court’s Changing Stance on Cruel and Unusual Punishment
Maria Slater, Note, Is Powell Still Valid? The Supreme Court’s Changing Stance on Cruel and Unusual, 104 L. Rev. 547 (2018).
Abstract: In its seminal case Robinson v. California, the Supreme Court struck down a state statute criminalizing narcotics addiction. The Court held this statute, in criminalizing the disease of drug addiction, constituted cruel and unusual punishment prohibited by the Eighth Amendment. Six years later in Powell v. Texas, the Court declined to extend this holding to encompass alcoholism, because alcoholism involves the act of drinking rather than the status of addiction. However, the Court’s modern Eighth Amendment jurisprudence has signaled a shift in its understanding of cruel and unusual punishment. The Court has begun to take into account brain development, and its relationship to culpability, for certain classes of offenders. Neurological findings regarding the brain development involved in chronic alcoholism necessitate a similar shift in the Court’s framework for analyzing the penalization of chronic alcoholism and given the Court’s changing stance, call into question the constitutionality of Virginia’s habitual drunkard statute. Rather than viewing alcoholism under the act-versus-status dichotomy, the Court’s Eighth Amendment proportionality analysis signals a shift towards understanding addictions such as chronic alcoholism under a non-binary framework that takes into account recent scientific understandings of addiction. Much like the Court’s shift in the juvenile and intellectual disability contexts, a similar shift should occur, this Note posits, in the Court’s proportionality analysis as applied to statutes involving chronic alcoholism. This Note concludes by calling into question the continued constitutionality of Virginia’s habitual drunkard statute under the Court’s changing jurisprudence.
Police, Race, and the Production of Capital Homicides
Fagan, Jeffrey and Geller, Amanda, Police, Race, and the Production of Capital Homicides (July 12, 2018). Columbia Public Law Research Paper No. 14-593. Available at SSRN: https://ssrn.com/abstract=3202470.
Abstract: Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines. This article backs up the research on racial disparities to an earlier stage of capital case processing: the production of capital-eligible cases beginning with the identification of potential defendants by the police. It seeks to trace these sentencing disparities to examining earlier stages in the processing of homicides. Using data from the FBI’s Supplementary Homicide Reports, we examine every homicide reported between 1976 and 2009, and find that homicides with white victims are significantly more likely to be “cleared” by the arrest of a suspect than are homicides with minority victims. We estimate a series of hierarchical regressions to show that a substantial portion of this disparity is explained by social and demographic characteristics of the county in which homicides take place. Most notably, counties with large concentrations of minority residents have lower clearance rates than do predominantly white counties; however, county characteristics do not fully explain the observed race-of-victim disparities. Our findings raise equal protection concerns, paving the way for further research into the production of capital homicides and the administration of the death penalty.
Capital Punishment, Retribution, and Emotion: An Evolutionary Perspective
Anthony Walsh & Virginia L. Hatch, Capital Punishment, Retribution, and Emotion: An Evolutionary Perspective, 21 New Crim. L. Rev. 267 (2018).
Abstract: This article explores the emotions behind the retributive urge as it applies to the death penalty in the United States. It is argued that the retributive urge is so strong because it engages the most primitive of our emotions, and that these emotions served adaptive purposes over the course of human evolution. Many scholars offended by the retributive instinct insist that we must put emotion aside when discussing the death penalty, even as jurors in death penalty cases, and rely on our rationality. To ask this is to ask what almost all normal people find impossible because the emotions evoked in capital cases (disgust, anger, sympathy for the victim, desire for justice) evolved for the purpose of maintaining group stability and survival by punishing freeloaders. Modern neuroscience has destroyed the traditional notion that rationality and emotion are antagonists. Brain imaging techniques show that they are fully integrated in our brain wiring, and both are engaged in decision making, but when reason and emotion yield conflicting judgments, the latter almost always triumphs. The evolutionary rationales for why emotions conducive to punitive responses for wrongdoers exist are examined.
Jury-Eligible Public Attitudes Toward Biological Risk Factors for the Development of Criminal Behavior and Implications for Capital Sentencing
Berryessa, Colleen M., Jury-Eligible Public Attitudes Toward Biological Risk Factors for the Development of Criminal Behavior and Implications for Capital Sentencing, 44 Crim. Just. & Behav. (2017).
Abstract: This experiment, utilizing a sample of death-qualified jury-eligible public, examines if and how evidence on biological risk factors for criminality might affect views on the death penalty in four contexts: death penalty support, mitigation, future dangerousness, and cruel and unusual punishment. Results suggest that the presentation of evidence on biological risk factors generally, regardless of the specific risk factor, may not affect views on whether or not the use of the death penalty is appropriate. The presentation of biological risk factor evidence does not appear to be viewed by as strongly mitigating, but biological risk factors generally do have a small, yet statistically significant, impact on perceptions of moral responsibility. The presentation of evidence on certain biological risk factors also may aggravate views of future dangerousness, which could potentially increase the likelihood that the death penalty is supported. Implications of these attitudes for the criminal justice system are discussed.
“Power and Greed and the Corruptible Seed”: Mental Disability, Prosecutorial Misconduct, and the Death Penalty
Perlin, Michael. (2015). “Power and Greed and the Corruptible Seed”: Mental Disability, Prosecutorial Misconduct, and the Death Penalty. Journal of the American Academy of Psychiatry and the Law. 43. 266-272. 10.2139/ssrn.2522444.
Abstract: The Supreme Court’s death penalty jurisprudence is based in large part on the assumption that jurors can be counted on to apply the law in this area conscientiously and fairly. All our criminal procedure jurisprudence is based in large part on the assumption that prosecutors and judges will act fairly. I believe that these assumptions are based on nothing more than wishful thinking, and that the record of death penalty litigation in the thirty-eight years since the “modern” penalty was approved in Gregg v. Georgia gives the lie to them. This article focuses solely on the role of prosecutors in this process, and the extent to which prosecutorial misconduct has contaminated the entire death penalty process, especially in cases involving defendants with mental disabilities. This is an issue known well to all those who represent such defendants in death penalty cases but, again, there is startlingly little literature on the topic. It is misconduct that is largely hidden and ignored. The article begins with some brief background on issues that relate to the treatment of persons with mental disabilities in the criminal justice system in general. It then discusses prosecutorial misconduct and the outcomes of that misconduct, with special attention to a cohort of appellate decisions in unheralded and rarely (if ever) discussed published cases that, in almost every instance, sanction such misconduct. Next, it demonstrates how some prosecutors purposely flaunt the canons of ethics in the prosecution of defendants with mental disabilities in death penalty cases, and then will discuss some solutions raised by scholars to (at least, partially) cure this problem, and concludes with some modest suggestions of my own.
The ABA and the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases by Robin M. Maher, Hofstra Law Review (2008)
Abstract: On February 10, 2003, the American Bar Association House of Delegates overwhelmingly approved the revised ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (“ABA Guidelines”). In doing so, the ABA renewed the serious concerns it has voiced for decades about the fairness and reliability of the death penalty. All jurisdictions were urged to adopt the ABA Guidelines to ensure that capital trial and death row defendants had access to qualified, competent counsel and the expert assistance and funding that make capital legal representation meaningful. Read the full article.
Getting It Right: Life History in Investigations as the Foundation for a Reliable Mental Health Assessment by Richard G. Dudley, Jr. and Pamela Blume Leonard, Hofstra Law Review (2008)
Abstract: As the ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue both emphasize capital defense counsel must select appropriate non-legal team members and provide them with strategic direction. It is simply ineffective assistance for counsel to permit a mental health assessment of the client to occur before having made a reasoned decision about the purpose of the examination and having provided the examiner with the data necessary to reach a professionally competent conclusion respecting the question presented. This process must then be sustained. As the expert requests more data or the team independently unearths facts or records relevant to the expert’s conclusion, the new information must be incorporated effectively into the defense presentation. Only then will defense counsel be equipped to present an effective case in mitigation and defend it against attacks from the prosecution. Read the full article.
“The Importance of Recognizing Trauma Throughout Capital Mitigation Investigations and Presentations” by Kathleen Wayland, Hofstra Law Review (2008)
Abstract: A PhD. in psychology, the author formerly served on the faculty of Duke University Medical Center, where her primary emphasis was on traumatic stress syndromes and the psychological consequences of chronic exposure to interpersonal violence. For the last fifteen years she has been assisting capital defender organizations in integrating mental health themes into mitigation narratives. This article presents the current state of scientific knowledge about trauma, treating the subject from these dual perspectives.
The inevitable existence of trauma among all of those affected by a murder – including the client, his family members, survivors, and witnesses being interviewed about the crime or the client – is a critical barrier that the defense team must recognize as it investigates. On the other hand, the almost equally invariable presence of traumatic factors in the client’s background frequently provides powerful mitigating material, as the Supreme Court has held several times in recent years. The defense team must accordingly gather and use this material effectively. Read the full article.
“The Mystery of Mitigation: What Jurors Need to Make a Reasoned Moral Response in Capital Sentencing” by Russell Stetler, University of Pennsylvania Journal of Law and Social Change (2008)
Abstract: Mitigation—the empathy-evoking evidence that attempts to humanize the accused killer in death penalty cases—remains a mystery some three decades after the United States Supreme Court mandated individualized sentencing in capital cases. Few have seen its power, its transformative capacity to enable jurors to feel human kinship with someone whom they have just convicted of a monstrous crime. It would be rare for an individual juror to sit on more than one case in which mitigating evidence was presented in the penalty phase of a capital trial. Indeed, in twenty years of federal death penalty prosecutions, very few judges have presided over more than one penalty proceeding. Some of the most experienced public defenders specializing in capital cases have presented mitigating evidence only a handful of times over their long careers. Even mitigation specialists—the capital defense team members who give undivided attention to the client’s life-history investigation—have few opportunities to observe penalty proceedings, to watch the entire courtroom drama unfold.
Yet we know that mitigation works. Life verdicts in cases involving horrendous loss of life demonstrate that death sentences are never automatic or inevitable. High-profile examples include the cases of Lee Boyd Malvo, the so-called “Beltway Sniper;” Zacarias Moussaoui, the alleged twentieth hijacker of 9/11; and Terry Nichols, tried twice (in federal and then state court) for the Oklahoma City bombing. More mundane examples occur week after week in courtrooms across the country, as jurors choose life sentences for serial killers, cop killers, child killers, and others guilty of the most reviled and abhorrent crimes. While concerns about wrongful convictions have dramatically altered the public policy debate on capital punishment, mitigation evidence has continued to bring life sentences even in the face of overwhelming evidence of guilt. Mitigation is intangible and highly variable in the weight assigned to it by different individuals. Nonetheless, both courts and capital defense practitioners have over several decades articulated standards for mitigation investigation. This article will explore how those performance standards have developed. Read the full article.
“Cultural Competency in Capital Mitigation” by Scharlette Holdman and Christopher Seeds, Hofstra Law Review (2008)
Abstract: Cultural factors so pervasively influence the interactions of the client with other people – including all of those with whom he comes into contact at significant times in his life (e.g. in educational, medical, and correctional institutions), those surrounding him in the community in which he develops, and, critically, the members of the defense team – that it is imperative for the defense team to have the talents necessary to conduct a mitigation investigation that is culturally competent. The investigation must recognize and surmount an array of barriers, overt and subtle, to obtaining information from people of variegated backgrounds. As the courts have long recognized, in the context of mitigation, culturally competent investigation is more than an admirable and desirable skill. It is a standard of performance. Building on the framework provided by the ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue, this article details what capital defense counsel needs to do in order to (a) meet that standard and (b) of equal importance, utilize the fruits of the investigation to construct a persuasive narrative of the client’s life course that emerges authentically from his culture. Counsel must comprehend the world from the client’s viewpoint and be able to present his life story from the inside out. Read the full paper.
“A Former Alabama Appellate Judge’s Perspective on the Mitigation Function in Capital Cases” by William M. Bowen, Jr., Hofstra Law Review (2008)
Abstract: The article, based on the author’s eighteen years of service on the Alabama Court of Criminal Appeals, explicates how the collection and presentation of mitigation evidence in accordance with the ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue enable appellate courts to make reliable decisions in capital cases. Recounting his post-bench experiences in the defense of capital cases, the author also describes the ways in which the effective performance of the capital defense team benefits all actors in the criminal justice system: the more accurately the defendant’s life is presented, the more everyone involved—including prosecutors and family members as well as judges—can have confidence in the soundness with which they have discharged the heavy burdens they all bear. Read the full article.
“Evolving Standards of Decency: Advancing the Nature and Logic of Capital Mitigation” by Craig Haney, Hofstra Law Review (2008)
Abstract: The article builds on converging lines of research in the social sciences that have constructed a framework which conceptualizes the roots of violent behavior as extending beyond the personality or character structure of those people who perform it, connecting it historically to the brutalizing experiences they have commonly shared as well as the immediately precipitating situations in which their violence transpires.
The piece explains how to translate these insights into the collection and presentation of mitigation evidence in capital cases. It describes in detail the various factors in a person’s social and physical environment that are demonstrably likely to lead to criminal behavior, and how, in the context of an adversary system, these general findings can be persuasively woven into the mitigation case to be made on behalf of an particular client to an audience whose pre-disposition is to be unreceptive if not outright hostile.
A capital defense team that is performing effectively in accordance with the ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue will engage in a continuous iterative process between the assembly of a psychologically-oriented social history in which key developmental stages and relevant family and social experiences are analyzed together and the construction of a mitigating counter-narrative that incorporates a capital defendant’s social history and immediate life circumstances. If properly conceived and supported this narrative will provide a more satisfying account than the one the prosecution is certain to offer – an account confined to the defendant’s crime, which is presented as entirely the product of his free autonomous choice-making and constitutes both the full measure of the defendant’s life and the primary justification for ending it. Read the full article.
“Competent Capital Representation: The Necessity of Knowing and Heeding What Jurors Tell Us About Mitigation” by John H. Blume, Sheri Lynn Johnson, and Scott E. Sundby, Cornell Law Faculty Publications (2008)
Abstract: Capital defense counsel have a duty at every stage of the case to take advantage of all appropriate opportunities to argue why death is not a suitable punishment for their particular client. But that duty can hardly be discharged effectively if the arguments are made in ignorance of available information concerning how persuasive they are likely to be to their audience.
Heeding that simple proposition we present lessons from the work of the Capital Jury Project, an ongoing empirical research effort built upon extended interviews with people who have actually sat on capital juries. We find that the standards for mitigation investigations contained in the ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue are on firm empirical ground, both in their specific aspects and in their overall approach of encouraging counsel to be creative in building a coherent mitigation theory that is advanced consistently throughout the proceedings. We then describe particular defense themes and approaches that Project data show are likely to resonate favorably with jurors as well as the most potent prosecution arguments for death and how they might be most effectively rebutted. We conclude by describing the current research findings on the demographic and attitudinal characteristics of those jurors most likely to vote for life, and offering pointers on how to best ameliorate the scandalous but well-documented reality that many jurors simply do not understand the task they are being called upon to perform. Read the full article.
“The Sentencing Commission and Prosecutorial Discretion: The Role of the Courts in Policing Sentence Bargains” by John Gleeson, Hofstra Law Review (2008)
This law review articles focuses on a topic is an important defect in the United States Sentencing Guidelines: their attempt to withhold from federal prosecutors the power to enter into sentence bargains pursuant to Rule 11 (c)(1)(C) of the Federal Rules of Criminal Procedure. Read the full article.
Veterans on Death Row
Alison J. Lynch, Veterans on Death Row, 32 Crim. Just. 4 (2018).
Abstract: This article is based on a panel discussion held at the New York City Bar Association in conjunction with the Capital Punishment Committee. It features information presented by three panelists: Dr. Jerid M. Fisher, a forensic neuropsychologist; Irina Komarovskaya, PhD, the clinic director at the Steven A. Cohen Military Family clinic at the NYU Langone Medical Center; and Art Cody, the deputy director of the New York State Defenders Associations’ Veterans Defense Program and a retired United States Navy captain.
Combat Veterans and the Death Penalty: A Forensic Neuropsychiatric Perspective
Hal S. Wortzel, David B. Arciniegas, Combat Veterans and the Death Penalty: A Forensic Neuropsychiatric Perspective, Journal of the American Academy of Psychiatry and the Law Online Sep 2010, 38 (3) 407-414.
Abstract: With our nation’s present conflicts, a new generation of veterans are returning home, many of whom have substantial psychopathology and are encountering significant barriers in accessing care. Headlines from around the nation reflect that some of these wounded warriors go on to commit offenses that are potentially punishable by death. Existing circumstances speak to the urgency with which the subject of combat veterans with post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), or both facing capital crimes ought to be addressed. This publicity has led to a recent call for a legislatively or judicially enacted, narrow, categorical exclusion for combat veterans who were affected by either PTSD or TBI at the time of their capital offenses. In the present article, we illustrate the reality that combat veterans who commit capital offenses may face execution, summarize legal arguments offered in favor of a categorical exclusion, and provide a neuropsychiatric perspective on PTSD, TBI, and aggression, to help inform further dialogue on this weighty subject.
In a law review article, Giardino1 argues, from the legal perspective, that combat veterans with post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI) at the time of their offenses should not be subject to capital punishment. The argument offered is an interesting one that addresses an important topic and warrants further consideration. For a veteran with genuine combat sequelae of PTSD and perhaps TBI, capital punishment for crimes that may be legitimately connected to service-related injuries clearly represents a deplorable outcome. Given that as a nation we have the ability to prevent such an outcome, it is incumbent on us to give the matter of capital punishment for combat veterans serious consideration. However, in considering Giardino’s position, including the call for a categorical exclusion for combat veterans who have either PTSD or TBI at the time of their capital offenses, a more precise examination predicated on the behavioral neuroscience of PTSD, TBI, and aggressive behavior becomes essential. In the present article, we illustrate the reality that some combat veterans are facing execution, summarize the legal arguments offered by Giardino, and provide a neuropsychiatric perspective on PTSD, TBI, and aggression to help inform further dialogue.
Combat Veterans, Mental Health Issues, and the Death Penalty: Addressing the Impact of Post-Traumatic Stress Disorder and Traumatic Brain Injury by Anthony E. Giardino, Fordham Law Review (2009)
Abstract: More than 1.5 million Americans have participated in combat operations in Iraq and Afghanistan over the past seven years. Some of these veterans have subsequently committed capital crimes and found themselves in our nation ‘s criminal justice system. This essay argues that combat veterans suffering from post-traumatic stress disorder or traumatic brain injury at the time of their offenses should not be subject to the death penalty. Offering mitigating evidence regarding military training, post-traumatic stress disorder, and traumatic brain injury presents one means that combat veterans may use to argue for their lives during the sentencing phase of their trials. Alternatively, Atkins v. Virginia and Roper v. Simmons offer a framework for establishing a legislatively or judicially created categorical exclusion for these offenders, exempting them from the death penalty as a matter of law. By understanding how combat service and service-related injuries affect the personal culpability of these offenders, the legal system can avoid the consequences of sentencing to death America’s mentally wounded warriors, ensuring that only the worst offenders are subject to the ultimate punishment. Read the full article.
“Battle Scars: Military Veterans and the Death Penalty” by the Death Penalty Information Center
This report from the Death Penalty Information Center (DPIC) discusses how veterans’ issues with PTSD and other brain injuries are not receiving proper recognition in cases where veterans are sentenced to death. Despite increased understanding of how the trauma of war can affect the brain and the general respect veterans are afforded, veterans convicted of capital crimes often do not have such factors taken into consideration. This report also details several examples of veterans who have been executed, who are currently on death row, and who are at risk of being sentenced to death. Read the full report.
Sears v. Upton, 561 U. S. ____ (2010)
Without oral argument, the U.S. Supreme Court held that a state court had failed to adequately assess a capital defendant’s ineffective assistance of counsel claim due to his counsel’s failure to investigate his history of mental impairment. Read the full opinion.
Porter v. McCollum, 558 U. S. ____ (2009)
In this unanimous decision, the U.S. Supreme Court held that Petitioners’ Sixth Amendment right to legal counsel was violated when his attorney failed to present mitigating evidence related to Petitioner’s military service and combat experience. Read the full opinion.
Rompilla v. Beard, 545 U.S. 374 (2005)
In this 5-4 decision, the U.S. Supreme Court held that the Sixth Amendment’s right to legal counsel required counsel to make reasonable efforts to obtain and examine material that counsel had known the prosecution would likely present during the sentencing phase of trial. Read the full opinion.
Wiggins v. Smith, 539 U.S. 510 (2003)
The U.S. Supreme Court held that an attorney’s failure to adequately investigate his or her client’s background and present mitigating evidence at the sentencing phase of a capital trial constitutes ineffective assistance of counsel. Read the full opinion.
Williams v. Taylor, 529 U.S. 362 (2000)
In this decision, with different majorities for each holding, the U.S. Supreme Court held that Petitioners’ Sixth Amendment right to legal counsel was violated when his trial counsel failed to discover and present significant mitigating evidence for sentencing. The Court also held that the Virginia Supreme Court’s refusal to set aside Petitioner’s sentence of death was “contrary to, or involved an unreasonable application of, clearly established Federal law” as previously determined by the Court. Read the full opinion.
Mills v. Maryland, 486 U.S. 367 (1988)
In this 5-4 decision, the U.S. Supreme Court held that in a capital case, the sentencing authority “may not be precluded from considering, as a mitigating factor, any relevant circumstance, including any aspect of the defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”
Sumner v. Shuman, 483 U.S. 66 (1987)
The U.S. Supreme Court held that a sentencing authority is constitutionally required to consider “any aspect of the defendant’s character or record and any of the circumstances of the particular offense” as a mitigating factor. The Court also held that a statute mandating a death sentence for prison inmates convicted of murder while serving life sentences without the possibility of parole violates the Eighth Amendment and the Fourteenth Amendment.
Ake v. Oklahoma, 470 U.S. 68 (1986)
In this 8-1 decision, the U.S. Supreme Court held that, when an indigent defendant makes a preliminary showing that his sanity at the time the offense was committed will be an issue during trial, the Due Process Clause of the Fourteenth Amendment requires the government to provide psychiatric assistance to prepare an effective insanity defense.
Strickland v. Washington, 466 U.S. 668 (1984)
The U.S. Supreme Court held that, in order to determine whether a convicted person’s Sixth Amendment right to legal counsel has been violated and whether such violation warrants a reversal of conviction or vacating a death sentence, Petitioner must show that (1) counsel’s performance fell below an “objective standard of reasonableness”; and (2) there is a “reasonable probability” that if it were not for counsel’s deficient performance, the outcome of the trial would have been different.
Lockett v. Ohio, 438 U.S. 586 (1978)
In this decision, the U.S. Supreme Court held that an Ohio statute that limited the consideration of mitigating factors in a capital case violated the Eighth Amendment and the Fourteenth Amendment.
Woodson v. North Carolina, 428 U.S. 280 (1976)
In this 5-4 decision, the U.S. Supreme Court held that a North Carolina statute mandating the death penalty for first-degree murder violated the Eighth Amendment and the Fourteenth Amendment, because the law “depart[ed] markedly from contemporary standards” for capital punishment, provided no such standards for jury guidance in the exercise of “the power to determine which first-degree murderers shall live and which shall die,” and failed to allow for the consideration of character and record for individual defendants.