Validating the Right to Counsel

Washington and Lee Law Review, Vol. 70, 2013

Duke Law School Public Law & Legal Theory Series

33 Pages Posted: 26 Mar 2013 Last revised: 24 Jul 2018

Brandon L. Garrett

Duke University School of Law

Date Written: March 25, 2013

Abstract

This Essay, written as part of a Symposium celebrating the 50th Anniversary of Gideon v. Wainwright, focuses on the elaboration of the Gideon right in the context of ineffective assistance of counsel litigation. First, I describe how ineffective assistance of counsel claims came to dominate and define federal habeas corpus litigation, changing the structure of state post-conviction rules in reaction to the new prominence of ineffective assistance of counsel claims at the federal level, expanding to consider assistance of counsel during plea bargaining, and raising complex questions for post-conviction courts. Despite the ubiquity of ineffective assistance of counsel claims, the constitutional test is shot through with a prejudice analysis, as well as with a set of strong substantive blinders: judgments that only certain types of failures by counsel will be regulated. Second, I ask whether the approach towards judging effectiveness of defense counsel could be “validated” by social science evidence, or at least be better informed by it. The bar has increasingly engaged with science and social science to provide improved standards for effective defense representation. In turn, social scientists might more closely study the effectiveness of defense lawyering across stages of the criminal process. Over time, this work may help to validate the right to counsel.

Suggested Citation

Garrett, Brandon L., Validating the Right to Counsel (March 25, 2013). Washington and Lee Law Review, Vol. 70, 2013. Available at SSRN: https://ssrn.com/abstract=2239289

Brandon L. Garrett (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7090 (Phone)

HOME PAGE: http://www.brandonlgarrett.com/

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