An Ineffective State of Justice: Barriers to Ineffective-Assistance-of-Counsel Claims in State and Federal Courts
Criminal trials are probably the most high-stakes events that occur in courtrooms across the United States. Footnote #1 content: See Wainwright v. Sykes, 433 U.S. 72, 90 (1977) (“[T]he trial of a criminal case in state court [is] a decisive and portentous event.”). Despite their importance, however, errors are inevitable. Footnote #2 content: See NICOLE L. WATERS ET AL., BUREAU OF JUST. STAT., U.S. DOJ, NJC 248874, CRIMINAL APPEALS IN STATE COURTS 2 (2015) (explaining that state appellate courts’ raison d’être is “to detect and correct errors in trial court decisions”). Although many errors can be corrected on appeal, one of the most difficult errors to overcome is ineffective assistance of counsel. Footnote #3 content: See id. at 6 fig. 3. This figure displays the reversal rates for the top ten issues raised on appeals in state courts. Only “[r]elevancy/prejudicial evidence” at 2.9% ranked lower than “[i]neffective assistance” at 3.6%; however, the data for relevancy should be “[i]nterpret[ed] with caution” due to the statistical outcomes. Id. Therefore, it’s possible that ineffective assistance of counsel is actually the least likely category of error to be reversed in state courts. The difficulty of obtaining relief on ineffective-assistance-of-trial-counsel (IATC) claims is twofold. First, IATC claims are subject to a demanding standard of review. Under Strickland v. Washington, proving constitutionally ineffective assistance of counsel requires showing both that counsel’s performance was deficient and that that deficient performance actually prejudiced the defendant. Footnote #4 content: 466 U.S. 668, 687 (1984). However, “[j]udicial scrutiny of counsel’s performance must be highly deferential” to eliminate concerns of hindsight bias and to account for the possibility that the purportedly deficient performance was actually strategic. Footnote #5 content: Id. at 689. Second, many states have procedural systems which discourage or even forbid raising these claims on appeal, requiring instead that they be brought in state postconviction proceedings. Footnote #6 content: See infra notes 58–80 and accompanying text. These proceedings are inherently more difficult than appeals because there is no federal constitutional right to counsel, Footnote #7 content: Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). meaning that there is also no guarantee of effective assistance. Footnote #8 content: Coleman v. Thompson, 501 U.S. 722, 752 (1991). Thus, when attorneys in these postconviction proceedings make errors themselves, Footnote #9 content: “Incompetent habeas corpus representation occurs all too frequently in death-penalty appeals—especially in Southern states, which are less than eager to spend public funds to ensure adequate representation to indigent inmates.” Andrew Hammel, Effective Performance Guarantees for Capital State Post-Conviction Counsel: Cutting the Gordian Knot, 5 J. APP. PRAC. & PROCESS 347, 348 (2003). As Hammel’s comment implies, ineffective assistance is often a product of underfunding of public defenders and related organizations. See generally Braden Daniels, The Unconstitutionality of Underfunded Public Defender Systems, 3 HELMS SCH. GOV’T UNDERGRAD. L. REV. (2024). remedies may be limited or nonexistent.
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