Academic journal article Faulkner Law Review

Lawyering to the Lowest Common Denominator: Strickland's Potential for Incorporating Underfunded Norms into Legal Doctrine

Academic journal article Faulkner Law Review

Lawyering to the Lowest Common Denominator: Strickland's Potential for Incorporating Underfunded Norms into Legal Doctrine

Article excerpt

This symposium article explores how ineffective assistance of counsel doctrine, by its design, may incorporate and exacerbate the failings of an underfunded indigent defense system. Specifically, it highlights two aspects of the Strickland v. Washington standard for ineffective assistance of counsel: first, its inability to effectively address issues of underfunding through its two-prong test of deficient performance and prejudice; and, second, the way in which its eschewal of specific substantive guidelines for attorney performance in favor of reliance on "prevailing professional norms" may allow legal doctrine to be influenced by anemic, localized practice norms resulting from a lack of resources.

As part of its analysis, this piece surveys Alabama court decisions invoking the "prevailing professional norms" terminology under Strickland to determine the sources on which Alabama courts rely to assess the reasonableness of attorney conduct. This research reveals that the Alabama courts are unlikely to afford weight to systemic funding deficiencies. Moreover, in defining "professional norms, " Alabama courts more likely to rely on previous instances of attorney conduct that have been deemed constitutionally sufficient or local practice norms than on external sources such as the ABA Guidelines. This trend is in line with the Supreme Court's latest word on the issue, which emphasizes that the ABA Guidelines are not definitive and that courts should have more freedom in determining what constitutes reasonable attorney performance. Unfortunately, it also increases the likelihood that "reasonableness, " and thus the meaning of the Sixth Amendment's guarantee to the effective assistance of counsel, will be defined by lowered practice standards resulting from systemic underfunding.

In response to these findings, the article makes several recommendations as to how courts reviewing ineffective assistance of counsel claims might better respond to the potential impact of underfunding on the effectiveness of defense counsel. More generally, it suggests that courts should be mindful of how funding issues not only hinder the effective application of right to counsel doctrine, but also have the potential to degrade the law's ability to protect against future ineffective assistance.


In recent years, there has been no shortage of examples of how the underfunding of indigent defense negatively impacts the legal representation that poor criminal defendants receive. (1) To provide just one example, a young attorney who until 2009 was employed as a public defender in Georgia, resigned from her position because she felt that she was not providing effective assistance under the office's budgetary constraints. (2) In a letter authored shortly after her resignation, she stated that severe underfunding in her office had resulted in unmanageable working conditions, such as: an annual caseload allowing, on average, a mere three hours to work on each case; (3) "cursory review" of each case to identify which cases would benefit from the office's limited resources; (4) pleas being entered without a thorough investigation of the case; (5) continued representation even in light of obvious conflicts; (6) very few requests for expert funding; (7) and limited training opportunities. (8)

The law's failure to effectively respond to this scenario is often viewed as a problem of application: an unfortunate disconnect between the ideals of legal doctrine and the realities of legal practice. In previous work, I have attributed this gap to the fact that Sixth Amendment doctrine is not well suited to account for funding concerns or simply operates ignorant of their existence. (9) Less attention has been paid, however, to the more pernicious possibility that, in turning a blind eye to issues of funding, courts actually allow the depressed practice norms of an anemic system to inform the legal standard used to assess the quality of indigent defense. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.