Capital Prejudice

Abstract

This paper, published as part of a symposium devoted to cultural competency and the death penalty, considers the law of prejudice pursuant to Strickland v. Washington, with a focus on its application in capital cases. It offers a rarity in the academic literature on Strickland’s prejudice prong: a modest defense of it. Although this paper concedes the plausibility of an alternative to the existing standard, it argues that some form of harm analysis ought to remain part of basic ineffective assistance jurisprudence and that even the best articulated alternative suffers from some deficiencies that render the existing standard equally desirable. Indeed, this paper acknowledges that the existing prejudice standard is unlikely to be replaced and therefore must be properly understood and applied. The paper gives special attention to the standard as applied in capital cases involving ineffective assistance claims after Strickland, as those cases have tended to dominate the Court’s attention in this area of constitutional criminal procedure. It then argues that the prejudice standard must account not simply for the strength of the state’s case but also, in the special context of a Strickland challenge arising from the capital sentencing phase, for the unique capital sentencing procedures in place in the relevant jurisdiction and be understood as intersecting with the Eighth Amendment law of aggravation and mitigation law as applied during the jury’s selection decision. The Court’s opinions in Terry Williams, Wiggins, and Rompilla, in particular, all represented an effort to give greater bite to the Strickland standard and demonstrate that the state need not necessarily prevail on ineffective assistance claims. But, unlike others in the academic community, I argue that the Court wrongly decided each of those cases. It gave too much attention to the deficiency prong and inadequate attention to proper application of the prejudice prong, particularly in light of the nature of the crimes, the strength of aggravation, and the highly deferential portions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) that generally govern claims on federal habeas review. The Court, however, has moved in a corrective direction, especially after its recent decision in Cullen v. Pinholster, which will likely have significant consequences for the litigation of ineffective assistance claims on collateral review.

Keywords: death penalty, Supreme Court, ineffective assistance of counsel, federal habeas corpus