In an illuminating 2008 article in the Hofstra Law Review, Scharlette Holdman and Christopher Seeds helped to bring the concept of culturally competency much needed attention in the field of capital litigation. They presented a view of cultural competency as “at root a collection of knowledge, abilities, and skills.” Because cultural competency allows for translation across cultures, Holdman and Seeds took the position that this skill is a prerequisite for a capital defense attorney who is representing a client of a different ethnicity, nationality, social group, or subgroup in the mitigation phase of a capital case. While cultural competency discourse often focuses upon the relationship between a professional and his or her client, it is important to recognize that the concept extends beyond the client to “the level of the organization/system” in which the client must function. In the world of a capital defendant, this system incorporates a diverse array of people, including judges, juries, court personnel, attorneys, psychologists, investigators, prison guards, and fellow inmates, among others. Drawing upon Holdman and Seeds’ work, Michael L. Perlin and Valerie McClain explained that “culturally competent people can grasp, reason, and behave effectively when faced with culturally diverse situations, where assumptions, values, and traditions differ from those to which they are accustomed.” By employing the same skills used to communicate effectively with a client, a culturally competent attorney may communicate more effectively with the judge, jury, and any others with whom the client will have significant interactions. Litigating in a culturally competent manner is of importance both to defense attorneys and prosecutors in a contestation over whether a defendant is intellectually disabled, and hence categorically excluded from the reach of the death penalty. This article explores the intersection between capital punishment, cultural competency, and the determination of intellectual disability in capital proceedings. Part II of this article begins by looking to history and briefly examining historical understandings of intellectual disability and the past treatment of intellectually disabled persons. In doing so, special emphasis is placed on the historical development of theories of criminal responsibility of intellectually disabled persons from which our present law emerged. Part III of this article delineates the contemporary definitions of intellectual disability offered by leading expert organizations in the field. This section of the article also addresses the impact of these definitions on how state legislatures and courts have defined the category of persons excluded from the reach of the death penalty based upon intellectual disability. Part IV of the article shifts to considering the procedures established by states for determining whether a capital defendant is intellectually disabled. Part V of the article addresses four ways in which cultural competency may be of critical importance to both defense attorneys and prosecutors in litigating the issue of whether a defendant is intellectually disabled. Finally, part VI of the article presents a brief synopsis.
42 U. Mem. L. Rev. 855 (2012)