The Historical Case for Abandoning Strickland

54 Pages Posted: 7 Dec 2015

See all articles by Brian Gallini

Brian Gallini

Willamette University - College of Law

Date Written: December 7, 2015


Even the Justices considering Strickland v. Washington knew. “[T]his is a big case,” Justice Powell handwrote on the first page of his law clerk’s bench memorandum. Although designed to provide the Sixth Amendment benchmark for effective defense attorney representation, Strickland was an utter failure. Courts nationwide have relied on Strickland to uphold as constitutional criminal defense attorney conduct that includes sleeping through portions of trial, remaining completely silent during the proceedings, mental illness, alcohol use, and drug use - among other troubling examples. The bench, bar, and scholars alike have therefore uniformly proposed reforming the Strickland standard.

But no article has looked back to ask a more basic question: why? Why did the Court spend from 1956-1969 expanding indigent access to justice - particularly in the right to counsel area - only to so aggressively reverse course in Strickland. And a related question: why did the opinion’s author, Justice O’Connor, go so far as to apply the new Strickland standard to the facts of David Washington’s case?

This Article makes two arguments: first, that Strickland is best understood as a backlash case; that is, a case designed to radically recede away from the Warren Court’s more broadly conceived Sixth Amendment. Second, the Article asserts that by applying the new Sixth Amendment standard to the facts in Part V of Strickland, Justice O’Connor undermined - perhaps even deliberately - what could have been a standard far more demanding of defense attorneys. Properly understanding Strickland in this broader historical context reveals new and previously undiscovered reasons for the current Court to demand more from criminal defense representation.

Keywords: Strickland, defense counsel, right to counsel, effective assistance of counsel, Sixth Amendmment, criminal procedure, Supreme Court

JEL Classification: K10, K14

Suggested Citation

Gallini, Brian, The Historical Case for Abandoning Strickland (December 7, 2015). Nebraska Law Review, Vol. 94, No. 2, 2015, University of Arkansas Research Paper No. 15-7, Available at SSRN:

Brian Gallini (Contact Author)

Willamette University - College of Law ( email )

245 Winter St. SE
Salem, OR 97301
United States

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