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September 29, 2011

"Evolving Standards of Reasonableness: The ABA Standards and the Right to Counsel in Plea Negotiations"

The title of this post is the title of this timely new paper by Margaret Colgate Love now available via SSRN. Here is the abstract:

The ABA Criminal Justice Standards have been recognized by the Supreme Court as one of the most important sources for determining lawyer competence in Sixth Amendment right to counsel cases.  Because the constitutional test is whether defense counsel’s performance was “reasonable” under “prevailing professional norms,” it is necessarily an evolving one.  Padilla v. Kentucky underscores the defense bar’s stake in participating in the ABA standard-setting process to guide the development of their obligations in plea negotiations. In addition, to the extent the courts give the ABA Standards credence in judging ineffective assistance claims, they can be powerful catalysts for changing the behavior of other actors in the plea process, as well as system norms.  The Standards can also be leveraged to help the defense bar gain access to the additional resources necessary to comply with the constitutional obligations of defense lawyers post-Padilla.

Two developments give this problem particular urgency: One is the proliferation of status-generated “collateral” penalties affecting every activity of daily life, penalties that are frequently more severe than any sentence potentially imposed by the court.  The other is the broad applicability of these collateral penalties to misdemeanants and other minor offenders who in the past would have been spared the reduced legal status and stigma reserved for convicted felons.

Part I of this Article analyzes the Supreme Court’s treatment of the ABA Standards in Sixth Amendment cases, and Part II discusses the manner in which the Standards are developed and approved as ABA policy.  Part III describes the provisions of the Standards that govern plea negotiations, and proposes their expansion in light of the new mandate given defense lawyers by Padilla.  It concludes by urging greater defender participation in the Standards process to shape how the Sixth Amendment standard evolves, and to maximize Padilla’s systemic effect.

September 29, 2011 at 09:21 AM | Permalink


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The ABA is now a guideline maker on adequacy of defense representation. They now have guideline maker duties, and tort liability toward victims of their carelessness. Losing defendants whose attorneys have followed the guidelines may have a case for money damages if the guidelines are shown to be faulty. Guidelines are not immunized by Free Speech or Free Press Clauses. They are bossing the Supreme Court and the defense bar, not just expressing their opinion. And because of the reliance of the Court, they know that very well. All participants, such as defense lawyer professional societies, should be also be named. To deter.

Posted by: Supremacy Claus | Sep 30, 2011 6:03:49 AM

For two years I've been fighting sex offender registration. In the next upcoming months, I'll be going into a trial. At 25 page memorandum, Already File before the court. Title special action. Sex offender registration Notification Will be struck a heavy blow Why ? I am pro se. And I'm putting it before a jury . Non believers May call me anytime. #5209040841. Believe me I've done my homework .

Posted by: Kenneth Gann | Oct 6, 2014 5:34:07 AM

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