Ineffective Assistance of Counsel

In Strickland v. Washington (1984), the U.S. Supreme Court declared that the Sixth Amendment guarantee of assistance of counsel means effective assistance. To prevail on an appeal based on the claim of ineffective assistance of counsel, the appellant (the person who appeals) must prove that his or her attorney's performance was deficient, that the attorney's substandard performance prejudiced the case, and that it was likely that, but for the attorney's errors, the result would have been different. Strickland puts the burden of proof on the appellant to prove that his or her lawyer's assistance was ineffective. In a powerful dissent, Justice Thurgood Marshall (who was no slouch as an appellate lawyer, winning 29 of 32 cases that he argued before the Supreme Court) claimed that the majority's standard of “reasonably effective assistance” is too ambiguous. He asserted that it is very difficult, if not impossible, to determine whether the outcome of a case would have been different if the defense lawyer had been competent.

Several problems result from ineffective assistance of counsel. First, ineffective assistance produces unjust convictions and wrongful executions. Second, it creates an imbalance in the adversary process, which heightens the chances of governmental abuses of power and undermines fundamental constitutional rights. Third, it thwarts achievement of the goal of equal justice. Due to the gross underfunding of legal services for the poor, the failure to provide effective assistance draws a line between rich and poor. Since a disproportionately large number of persons who avail themselves of legal services for the poor are racial minorities, the impact of ineffective assistance of counsel falls heavily upon African‐Americans and other racial/ethnic minorities.

The cause and the solution

The main cause of the problem of ineffective assistance of counsel is lack of resources. Legal services for the poor are severely underfunded. Even when private counsel is involved, a huge funding gap usually remains between prosecution and defense. Substantially more government dollars are spent on the prosecution than on the defense. Moreover, prosecutors enjoy the additional resources of having their investigatory work done by law enforcement. A recent study concluded that money can have a big impact on jury verdicts because money buys investigative resources, which make a difference in jury trials.

Allan Dershowitz thinks providing more legal resources to indigent defendants would make the playing field level. He recommends that “all indigent defendants … who have a large team of prosecutors, police, and experts arrayed against them” be given “a reasonably comparable defense team.” Increasing the resources of indigent defendants, in his view, would strengthen the adversary process, making it more likely to produce both truth and equal justice.