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 48^th 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.