Lawyering to the Lowest Common Denominator: Strickland's Potential for Incorporating Underfunded Norms into Legal Doctrine
5 Faulkner Law Review 199 (2014)
24 Pages Posted: 13 Jan 2015 Last revised: 9 Mar 2015
Date Written: April 1, 2014
This symposium article (written per invitation to serve as Lead Speaker) explores how ineffective assistance of counsel doctrine, by its design, may incorporate and exacerbate the failings of an underfunded indigent defense system. Specifically, it highlights two aspects of the Strickland v. Washington standard for ineffective assistance of counsel: first, its inability to effectively address issues of underfunding through its two-prong test of deficient performance and prejudice; and, second, the way in which its eschewal of specific substantive guidelines for attorney performance in favor of reliance on “prevailing professional norms” may allow legal doctrine to be influenced by anemic, localized practice norms resulting from a lack of resources.
As part of its analysis, this piece surveys Alabama court decisions invoking the “prevailing professional norms” terminology under Strickland to determine the sources on which Alabama courts rely to assess the reasonableness of attorney conduct. This research reveals that the Alabama courts are unlikely to afford weight to systemic funding deficiencies. Moreover, in defining “professional norms,” Alabama courts more likely to rely on previous instances of attorney conduct that have been deemed constitutionally sufficient or local practice norms than on external sources such as the ABA Guidelines. This trend is in line with the Supreme Court’s latest word on the issue, which emphasizes that the ABA Guidelines are not definitive and that courts should have more freedom in determining what constitutes reasonable attorney performance. Unfortunately, it also increases the likelihood that “reasonableness,” and thus the meaning of the Sixth Amendment’s guarantee to the effective assistance of counsel, will be defined by lowered practice standards resulting from systemic underfunding.
In response to these findings, the article makes several recommendations as to how courts reviewing ineffective assistance of counsel claims might better respond to the potential impact of underfunding on the effectiveness of defense counsel. More generally, it suggests that courts should be mindful of how funding issues not only hinder the effective application of right to counsel doctrine, but also have the potential to degrade the law’s ability to protect against future ineffective assistance.
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