Professor Eric Freedman posted “Enforcing the Aba Guidelines in Capital State Post-Conviction Proceedings after Martinez and Pinholster” on SSRN.
This piece, to be published in Part 1 of Hofstra Law Review’s forthcoming symposium marking the tenth anniversary of the ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, considers the converging pressures now impelling the states to provide the effective assistance of counsel in state capital post-conviction proceedings. On the one hand, Martinez v. Ryan, 132 S. Ct. 1309 (2012) — a case that will likely be expanded to a number of additional procedural and substantive contexts – warns the states that if they fail to provide such counsel, their capital convictions will be subject to searching federal review. On the other hand, Cullen v. Pinholster, 131 S.Ct. 1388 (2011), offers the states the promise that if they do provide such counsel their capital convictions will be very deferentially treated on federal review. Thus, the forces of federalism may cause the states to adopt a beneficial reform that the Supreme Court has been unwilling to mandate under the Constitution.