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Wednesday, May 23, 2018

Prospective Enforcement of the Right to Effective Assistance of Counsel

This post is part of a series (see here, here, and here) exploring how prejudice rules affect the implementation of criminal procedure rights. Here I focus on the prejudice rules that the Supreme Court has woven into the constitutional definition of effective assistance of counsel. Specifically, I’ll take a look at how those rules impede prospective remedies that aim to fix broken indigent defense systems—which remain all too common across the country—before those systems predictably result in ineffective representation during plea negotiations or trial.

The prejudice rules for effective assistance of counsel claims are somewhat complex. The rule applicable to the vast majority of ineffective assistance claims comes from Strickland, which held that such claims require proof that the attorney’s performance was constitutionally deficient, as well as prejudice, which means “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” To be sure, Strickland acknowledged that “prejudice is presumed” and so need not be separately proven “[i]n certain Sixth Amendment contexts,” as when there is (1) “[a]ctual or constructive denial of the assistance of counsel altogether,” (2) “state interference with counsel’s assistance,” or (3) “an actual conflict of interest” that “adversely affected [the] lawyer’s performance.” But in Cronic, a companion case to Strickland, the Court rejected a constructive denial of counsel claim under rather extreme circumstances, and remanded so that the lower court could apply Strickland. Cronic thus implied—and the Court’s later decisions have expressly confirmed—that “the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims.”

Neither Strickland, Cronic, nor any other Supreme Court decision has considered whether and under what circumstances a prospective, systemic ineffective assistance of counsel claim might be viable. (Strickland and Cronic, like most cases about ineffective assistance, involved post-trial defendants seeking habeas or appellate relief.) Yet the prejudice rules they produced have profoundly diminished not only the availability of postconviction right to counsel remedies—an effect the Court apparently intended, to preserve the finality of criminal judgments—but the prospects for prospective relief as well. Why? Because Strickland and Cronic opted to classify prejudice as a restriction on the scope of the Sixth Amendment right, naturally inviting its application in every remedial context involving alleged ineffective assistance, rather than as a harmless error rule, which has a narrower reach tied primarily to postconviction remedies.

To provide just one recent example, consider the District Court of Utah’s decision in Cox v. Utah. (For valuable resources about systemic ineffective assistance litigation in other jurisdictions, see the Sixth Amendment Center’s website or chapter three of the National Right to Counsel Committee’s 2009 report entitled Justice Denied.) There, two defendants in separately pending criminal cases brought a class action suit, on behalf of criminal defendants represented by public defenders in Washington County, against the state of Utah and related parties. They alleged that their right to effective assistance was “in imminent danger of being violated because the indigent defense program in Washington County lacks ‘sufficient funding, . . . workload limits, adequate contracting standards,” and other basic safeguards. The court dismissed the action, using Cronic and Strickland as its analytical framework.

With respect to constructive denial of counsel under Cronic, the court held that the plaintiffs had to meet a “hefty burden” of showing “widespread and systemic” attorney ineffectiveness. And it concluded that they had not met this burden—despite the complaint’s allegations that, among other things, “Utah is 48th out of 50 states in funding” for indigent defense and that one plaintiff’s public defender “has a workload of 350 cases, 80 percent of which are felonies.” After all, the court reasoned, these allegations were merely “reminiscent of the types of allegations made in . . . Cronic” that the Supreme Court had deemed insufficient to warrant an exception to the usual Strickland standard.

And under Strickland itself, the lawsuit was a nonstarter. As the court explained, “Strickland requires proof of actual prejudice,” but “neither [plaintiff] has been convicted or sentenced,” and so “procedurally, neither can state a claim for ineffective assistance.”

That said, some courts have developed creative workarounds to deal with the obstacles posed by the Strickland/Cronic prejudice framework. In Kuren v. Luzerne County, for instance, the Pennsylvania Supreme Court recently recognized a “cause of action whereby a class of indigent defendants may seek relief for a widespread, systematic and constructive denial of counsel when alleged deficiencies in funding and resources provided by the county deny indigent defendants their constitutional right to counsel.” In explaining why it did not regard Strickland as an impediment, the court reasoned that “[v]iolations of the right to counsel can occur in many different ways, and remedies for such violations are not limited solely to circumstances where prejudice can be proven. Only the remedy of a new trial requires a showing of prejudice.” Although I applaud this courageous ruling, it is not hard to see why Cox and many other cases (including the lower court’s decision that was reversed in Kuren) have endorsed the contrary position that the Strickland and Cronic prejudice rules are applicable, and ordinarily fatal, in prospective Sixth Amendment actions. And now that the Department of Justice probably will not continue submitting amicus briefs supporting indigent criminal defendants seeking pretrial relief against failing public defense delivery systems (as the Obama DOJ did in Kuren and several other cases), the path to success for such suits is likely to remain perilous.

Posted by Justin Murray on May 23, 2018 at 05:54 PM | Permalink


Just correcting it :

It is written : " the other is reach " should be of course : Rich .

Apologizing .....

Posted by: El roam | May 24, 2018 10:40:02 AM

Indeed Justin , just to notice also , as mentioned , that much depends upon the particularity of the case . For , if you would deal only with narrow legal issue or question , wouldn't be similar of course , to a case , where the defendant pleads not guilty ( has nothing to do with that indictment let alone he argues ) . And , Sentence is severe , and the factual configuration is complicated .

Imagine that :

The defendant could get away with it , if only he could hire , private detective , to dig new or equitable evidences .But , One needs hell of fortune not once .

That is why I have reached very simple conclusion :

If there is , in certain system , 95 per cent convictions rate , notwithstanding objective guilt or innocence :

If only the representation was the optimal , it could drop easily to : 80 percent approximately . That is an astonishing hypothesis or finding or assumption. But the point is , that it is not up to the judiciary , but , simply money !! But then of course , we shall reach the eternal strategic equation or puzzlement :

Why wrongdoers profit , while victims suffer ? Why one is poor , the other is reach ? Why one would get away with it finally , and the other , shall live the rest of his life , behind bars ?

I don't think , you would like right here right now , to debate on it . I guess you have enough troubles with your particular expertise .


Posted by: El roam | May 24, 2018 10:36:44 AM

That's right -- resource shortages are among the best prospective indicators of whether a defendant is likely to receive ineffective assistance in her criminal proceedings. Accordingly, most of the prospective challenges to failing indigent defense systems across the country have focused on underfunding and the closely related problems of too few lawyers & excessive caseloads. It's frustrating to see many (though by no means all) of these often-meritorious suits getting dismissed at the pleading stage on the theory that outcome-determinative prejudice is essentially unprovable until the criminal proceeding has culminated in an outcome that can be reviewed in a postconviction posture.

Posted by: Justin Murray | May 24, 2018 10:00:58 AM

And just to relate it to prospective occurrence or prejudice :
One can imagine or describe a case , where clear tangible evidences or analysis , may suggest that prospective tangible prejudice may occur :

If the resources of the lawyer dealing with the case , are so narrow . If the case itself is a criminal one . If he would plead not guilty . if the sentence may be very harsh . If the case itself bears very complicated factual and legal configuration , one may argue :

That there is , probable occurrence , that the defense , wouldn't be able , to assist him effectively , due to shortage in resources .

So , that is the best prospective tangibility , it seems , that one defendant may present .


Posted by: El roam | May 24, 2018 6:13:07 AM

Interesting indeed , you claim that :

And under Strickland itself, the lawsuit was a nonstarter. As the court explained, “Strickland requires proof of actual prejudice,” but “neither [plaintiff] has been convicted or sentenced,” and so “procedurally, neither can state a claim for ineffective assistance.”

Yesterday indeed , you were referring to " Weaver V. Massachusetts " and there , the majority , and particularly the dissenting judge , were referring to such problem of " proof of actual prejudice " when dealing with public trial , here I quote ( dissenting opinion of Justice Breyer ) :

The problem is evident with regard to public-trial violations. This Court has recognized that “the benefits of a public trial are frequently intangible, difficult to prove, or a matter of chance.” Waller v. Georgia, 467 U. S. 39, 49,
n. 9 (1984). As a result, “a requirement that prejudice be shown ‘would in most cases deprive [the defendant] of the [public-trial] guarantee, for it would be difficult to envisage a case in which he would have evidence available of specific injury.’”

End of quotation :

Now go and prove it when the trial wasn't public one. One needs to dig hell of speculations indeed , in order to show , how a public trial , could change indeed the outcome , and , from a post-conviction position .


Posted by: El roam | May 23, 2018 7:59:47 PM

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