Academic journal article Harvard Law Review

Prejudice and Remedies: Establishing a Comprehensive Framework for Ineffective Assistance Length-of-Sentence Claims

Academic journal article Harvard Law Review

Prejudice and Remedies: Establishing a Comprehensive Framework for Ineffective Assistance Length-of-Sentence Claims

Article excerpt


The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." (1) Although the rights guaranteed by the Sixth Amendment originally applied only to prosecutions in federal courts, (2) in 1963 the Supreme Court made clear that the right to counsel also applies to state prosecutions. (3)

Criminal defendants have not only a right to counsel, but also a right to effective counsel. (4) Although the Supreme Court had made statements to this effect for some time, (5) it was not until 1984 that the Court articulated a concrete test for protecting this right. In Strickland v. Washington, (6) the Court held that a convicted defendant seeking to set aside a death sentence or overturn a conviction based on a claim of ineffective assistance of counsel must demonstrate deficient performance as well as prejudice. (7) Under the performance prong, a claimant must show that defense counsel failed to provide "reasonably effective assistance." (8) In making this assessment, courts should look to "prevailing professional norms" (9) and evaluate the conduct in question based on "the facts of the particular case, viewed as of the time of counsel's conduct." (10) Under the prejudice prong, a claimant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (11) In making this evaluation, "a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." (12)

Although Strickland technically addressed only challenges seeking to overturn convictions or set aside death sentences, defendants have also brought ineffective assistance claims challenging the length of their sentences. This Note describes the various situations in which length-of-sentence claims may arise; it also examines the choices facing litigants and judges in this developing area of law. Part II identifies unresolved tensions in the application of Strickland's prejudice prong to length-of-sentence claims and proposes two different dimensions along which to measure these claims--first, the type of error on which a length-of-sentence action is based; and second, the type of sentencing regime in place. Part III analyzes various kinds of length-of-sentence claims and proposes possible solutions to the theoretical and practical problems that may arise when trying to identify and remedy ineffective assistance. Part IV briefly concludes.


The Strickland Court laid down a framework for ineffective assistance challenges to convictions and death sentences, but it did not take a clear position on claims alleging merely that defense counsel's errors resulted in a longer sentence. The Supreme Court has since recognized the validity of length-of-sentence claims in Glover v. United States. (13) Glover was convicted by a jury on charges of labor racketeering, money laundering, and tax evasion. (14) Under the Federal Sentencing Guidelines, "counts involving substantially the same harm" could be grouped together for purposes of determining the appropriate punishment. (15) Although the probation officer recommended that the labor racketeering, money laundering, and tax evasion counts be grouped together, the government argued that the money laundering counts did not qualify for grouping. (16) Faced with this objection, "Glover's attorneys did not submit papers or offer extensive oral arguments contesting the no-grouping argument." (17) The district court ruled in the government's favor, triggering a two-level increase in the required sentencing range; instead of a range of sixty-three to seventy-eight months, Glover's range was seventy-eight to ninety-seven months. (18) Ultimately, the trial judge sentenced Glover to eighty-four months in prison. …

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