Standards for Counsel in Capital Cases

After 20 years on (the) high court, I have to acknowledge that serious questions are being raised about whether the death penalty is being fairly administered in this country. Perhaps it’s time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used.

- Justice Sandra Day O’Connor (2001)

Strickland provided the framework under which courts evaluate claims of ineffective assistance of counsel, but the Court has not specifically defined a set of performance standards for capital defense attorneys. The U.S. Department of Justice and the American Bar Association have published criteria to be used in evaluating trial counsel. Many states have also adopted standards of performance for attorneys handling capital cases.

U.S. Department of Justice, Compendium of Standards for Indigent Defense Systems, Vol. III, Standards for Capital Case Representation (December 2000).

American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (February 2003).

Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (2008).

The American Bar Association has compiled a survey of the State Standards for Appointment of Counsel in Death Penalty Cases (May 2021).

Indigent Defense and Capital Case Representation (2001) by Madelynn Herman. This memo, published by the National Center for State Courts in 2001, updated the qualification standards for attorneys handling capital cases with indigent defendants.