Rectifying Bad Precedence: A Re-Examination of Strickland v Washington (1984) in New York State Courts
Gideon v Wainwright (1963) is a landmark Supreme Court case that incorporated the Sixth Amendment through the Equal Protection Clause of the Fourteenth Amendment, requiring states to provide public defenders to criminal defendants that cannot afford counsel. [1] However, since the Supreme Court’s ruling, it has been commonly observed that defendants receive less than effective representation from counsel, as public defenders are often stretched too thin and forced to grapple with enormous case loads, back-to-back trials, and abysmal funding by the state. Attempting to rectify this, the Supreme Court defined “effective assistance of counsel” in Strickland v Washington (1984), with the majority opinion adopting a loose set of requirements public defenders should meet. [2] This, however, has spawned its own issues. As Justice Marshall’s dissenting opinion predicted, the Court’s attempt to define counsel ironically exacerbated the issue by allowing courts to determine that lawyers have met the criteria of effective counsel without actually having provided it. Therefore, revisiting Strickland reveals that the Strickland test has done more harm than good, the dissenting opinion should have been considered more seriously, and the Supreme Court has a responsibility to rectify the injustices it has caused through this decision.
The litmus test for effective counsel was developed by the Supreme Court in Strickland; in her majority opinion, Justice Sandra Day O’Connor defined lack of effective counsel as when “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result,” dictating that it is the defendant’s burden to provide proof that their counsel’s assistance was so ineffective that it undoubtedly affected the trial’s outcome. [3] Justice O’Connor and six other justices believed their definition of effective counsel would be able to maintain fair standards for defendants’ counsel, while also protecting lawyers from unsubstantiated claims by disgruntled clients if they did not achieve the outcome they wanted. Yet, the majority opinion states that judges who evaluate ineffective assistance of counsel claims should be “highly deferential to counsel’s decisions” and avoid “scrutinizing them,” thus pushing an agenda that is preferential to defense lawyers. While the majority opinion outlines bureaucratic necessities defendants should achieve to have their claims recognized, even if these are met, the Supreme Court has prescribed leniency towards their lawyers. [4]
For example, in the New York State Courts, defendants must submit their claim in a direct appeal and then in a federal habeas corpus petition. Yet, if there is not enough evidence within trial records themselves, one must also submit an Article 440 motion. [5] However, a defendant can also file to have their first appeal reviewed instead of their original trial, which requires them to submit a request for a de novo review instead. Yet, there is no constitutional right to counsel in post-conviction appeals, with only some states mandating it, and even fewer apply Strickland v Washington’s effective counsel requirements to these appeals. [6] Even when these appeals are filed successfully, the appellate court has full jurisdiction when determining whether a lawyer provided effective counsel. Adhering to the Court’s opinion in Strickland, the appellate court would only determine a lawyer’s representation to be “deficient” if it believes that other lawyers would find the behavior identified by the defendant repugnant. Even if this is agreed upon by the court, the defendant must also be able to draw a line from the deficiency to their conviction, and prove that, if their counsel had been different, so would the outcome. Some states, such as New York, have added layers to this process, such as mandating proof that the defendant did not receive “meaningful representation,” defined as a singular wrongdoing so harmful to one’s case that it outweighs all other representation provided. Although this may sound the same as proving a lack of effective counsel, New York State Courts do not accept the same proof for each definition and require more wrongdoings to be presented to the courts under the meaningful representation standard. [7] Therefore, as a direct result of the Supreme Court mandating that the defendant bear the burden of proof and delegating discretional power to lower courts, many are stuck in a bureaucratic jungle of paperwork and confusing state-level laws—without protection by the Constitution and at the whim of the courts to determine multiple, complex, and subjective layers of wrongdoing. Specifically, this can be traced back to Justice O’Connor’s opinion, which focused more on protecting lawyers instead of allowing defendants’ claims to be heard.
The Court, however, was not in unanimous agreement, as demonstrated by Justice Marshall’s dissent. Justice Marshall argued that the majority opinion’s definition of effective counsel was too broad: it would either be too difficult to apply and thus fail to assist defendants or it would be too easily applied to cases where its original intent did not match its use. Justice Marshall also condemned the majority’s decision to place the burden of proof on the defendant, as he felt that prejudices often occur in the procedures of the trial, meaning the defendant would be mostly unaware of them—especially if they are not experienced. [8] This is a crucial point: for Justice Marshall, bureaucratic procedures alone are not necessarily safeguards for a fair trial; they may, in fact, create the opposite effects. Finally, he states, “a person of means...usually can obtain better representation than that available to an indigent defendant, who must rely on appointed counsel, who, in turn, has limited time and resources to devote to a given case,” indicating that public counsel is already a less effective alternative to private counsel. [9] Therefore, it has been clearly argued that the definition of effective counsel has the potential to fail the very defendants it was meant to protect.
Today, Justice Marshall’s prediction is present in almost every state, as public defense lawyers struggle with chronic underfunding, large caseloads, and little-to-no time to prepare for each case. For example, in New Orleans, Louisiana, public defenders spend an average of seven minutes preparing for each case, despite the American Bar Association’s recommendation that a lawyer should spend an average of forty-seven hours on a felony case to fully prepare a defense. [10] In other words, defense lawyers in New Orleans spend only 0.25 percent of the time recommended preparing for a case. Additionally, plea deals are more commonly taken by individuals defended by public counsel, with 98 percent of federal felonies and 94 percent of state-level felonies ending in plea deals. [11] The plea deals taken by these defendants are typically stricter with their punishments, including longer prison sentences and higher fees. This is largely because public defenders push their clients to take the first plea deal offered to them—whether due to convenience or because they simply lack the skill to renegotiate. [12] Thus, it is apparent that the outcome of many cases would be different if individuals received effective counsel, as many would not take plea deals and instead go to trial, which could in turn treat defendants more fairly.
Some state courts have recognized these issues ingrained in the justice system and taken substantial steps to rectify them, adhering more to Justice Marshall’s argument than Justice O'Connor's. In the case Hurrell-Harring et al. vs State of New York (2010), the New York Supreme Court ruled that the conditions that the New York State Government forced public defenders to operate under created an environment that prevented them from providing effective counsel. The court ordered New York State to require a lawyer to be present at their defendants’ first trial date, allocate more money to hire more lawyers in order to decrease the caseload and increase the per capita time dedicated to clients, set caseload and eligibility standards for defenders, and strengthen the role of oversight committees. [13] Through this case, it is reasonable to assume that courts have begun to recognize the faults inherent in Strickland. Allocating more money to hire public defenders and mandating caseload caps helps alleviate the quality-of-work discrepancy present between public and private defense attorneys, while strengthening oversight committees works towards checking back the inherent bias against defendants’ claims present in the majority opinion. Addressing the two main issues identified in Justice Marshall’s dissent, state level reforms are a positive first step in ameliorating the damage caused by Strickland.
The combination of the empirical evidence regarding public defenders’ inability to provide effective counsel and the outcome of Hurrell-Harring et al. has revealed that the framework provided by Strickland created an environment that systematically protected ineffective lawyers and dissuaded defendants from appealing against ineffective assistance of counsel. Upon reexamination, it is clear that Justice Marshall’s dissent should be the basis for defining effective counsel, as placing responsibility on a defendant and leaving interpretation up to individual judges leads to fewer checks against ineffective attorneys.
Although the Supreme Court generally avoids policy-making decisions, the civil liberties issues caused by its decision in Strickland merits this call for re-examination and an overturning of precedent. Landmark cases like Brown v Board of Education (1954) overturned the Court’s segregation precedent set by Plessy v Ferguson (1896), while Citizens United v Federal Election Commission (2010) overturned the Court’s campaign finance precedent set in Austin v Michigan Chamber of Commerce (1990). [14] It was the Court’s original reluctance to engage in policy-making that caused this epidemic of ineffective counsel, and although improvements may have occurred in New York, public defenders in forty-nine other states continue to be held to the current definition of effective counsel while suffering from harsh work conditions. Fortunately, the Justice Department has expressed interest in considering Hurrell-Harring et al. vs State of New York as a basis for creating national standards to ensure effective counsel in all fifty states. But, until then, the Supreme Court has a responsibility to acknowledge the harm it has caused to a largely unknown and vulnerable population of defendants and reverse the unfair precedent it set almost forty years ago. [15]
Edited by Jerry Chen
Sources:
[1] Gideon v. Wainwright, 372 U.S. 335 (1963).
[2] Strickland v. Washington, 466 U.S. 668 (1984).
[3] Id.
[4] Id.
[5] A Jailhouse Lawyer's Manual 12th ed., 256-66 (New York, NY: Columbia Human Rights Law Review, 2020) 256.
[6] Id at 257.
[7] Id at 260.
[8] Strickland v. Washington, 466 U.S. 668 (1984).
[9] Id.
[10] Jaeah Lee, Hannah Levintova, and Brett Brownell, Charts: Why You're in Deep Trouble If You Can't Afford a Lawyer, Mother Jones (May 6, 2013), online at https://www.motherjones.com/politics/2013/05/public-defenders-gideon-supreme-court-charts/ (visited January 5, 2022).
[11] Emily Yoffe, Innocence Is Irrelevant, The Atlantic (August 7, 2017), online at https://www.theatlantic.com/magazine/archive/2017/09/innocence-is-irrelevant/534171/ (visited January 5, 2022).
[12] Dean J. Champion, “Private Counsels and Public Defenders: A Look at Weak Cases, Prior Records, and Leniency in Plea Bargaining,” 17 Journal of Criminal Justice 253, 258 (1989).
[13] Hurrell-Harring v. State of New York, 930 N.E.2d 217 (N.Y. 2010).
[14] David Schultz, The Supreme Court Has Overturned Precedent Dozens of Times in the Past 60 Years, Including When It Struck down Legal Segregation, The Conversation (September 20, 2021), online at http://theconversation.com/the-supreme-court-has-overturned-precedent-dozens-of-times-in-the-past-60-years-including-when-it-struck-down-legal-segregation-168052 (visited January 5, 2022).
[15] Jocelyn Samuels et al., Hurrell-Harring v. New York - U.S. Statement of Interest Case No. C11-01100 RSL, U.S. Department of Justice (2013), online at https://www.justice.gov/sites/default/files/crt/legacy/2014/09/25/hurrell_soi_9-25-14.pdf (visited January 5, 2022).