Under Ake v. Oklahoma, indigent capital defendants are entitled to a wide array of expert assistance at both the conviction and sentencing phases of trial. Historically, the Ake entitlement has been under-utilized for both structural and normative reasons. However, today Ake is in the process of being revitalized. Recent Supreme Court decisions and the revised American Bar Association (ABA) Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases offer the hope that the theoretical entitlement of Ake will be fully realized. Moreover, if that occurs, one of two outcomes is likely to ensue at the state level: 1) capital defendants will receive a fully-litigated, fair trial consistent with the principles set forth by the Supreme Court and the ABA; and/or 2) some states will be unable to bear the financial burden of a fully-implemented Ake, and they will either reduce the number of capital cases pursued or they will cease pursuit of the death penalty altogether. This article contends that both outcomes are desirable whether or not one supports the use of capital punishment. This article proceeds in three parts. Part I describes both the Ake entitlement in theory and explanations for its historical under-utilization. Part II offers evidence that Ake is in the process of being revitalized. Specifically, the decisions in Atkins v. Virginia, Wiggins v. Smith, and Panetti v. Quarterman suggest that the Constitution requires significant Ake funding in all capital cases. Part III examines the impact that this trend will likely have on the behavior of capital-sentencing states. It is argued that these states will have no choice but either to provide the full array of expert assistance guaranteed by Ake and recent Supreme Court decisions or to reduce the incidence of capital prosecution. This article maintains that both outcomes are laudable whether or not one believes that states should employ the death penalty. By way of conclusion, two related issues are addressed: 1) whether the goal of a more fully-implemented Ake is attainable and 2) which groups within the criminal defense community may capitalize upon the revitalization of Ake notwithstanding broader structural and normative impediments.
Carla H. Drinan, The Revitalization of AKE: A Capital Defendant’s Right to Expert Assistance, 60 OKLA. L. REV. 283 (2007).