Lawyering to the lowest common denominator: Strickland's potential for incorporating underfunded norms into legal doctrine.

• Author: Lucas, Lauren Sudeall
• Position: Fred Gray Civil Rights Symposium

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.

INTRODUCTION

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. In other words, conduct that once could have constituted a constitutional wrong has not only become the new normal, but also the bar by which alleged ineffective assistance will be assessed in the future.

In Strickland v. Washington, the Supreme Court set forth the standard by which claims of ineffective assistance of counsel would be judged. (10) The Court's formulation of that standard was neither substantive nor wholly objective; rather, it relied on a relative assessment of defense counsel's conduct against "prevailing professional norms." (11) The nature of this standard means not only that it will change over time and is subject to external variables, but also that any change in the underlying norm used to assess attorney conduct will "implicitly change[]" the law itself. (12) Thus, the way in which courts determine the baseline norm against which all other attorney conduct will be judged has the potential to transform ineffective assistance doctrine. This article offers a limited empirical analysis of the Alabama state appellate courts' treatment of Strickland's "professional norms" language in an attempt to determine whether the courts rely on external, objective standards to guide their discretion, or whether the sources on which they rely are localized, (13) and therefore more susceptible to being poisoned by the realities of underfunding. (14)

In Part I, the article describes the workings of the Strickland standard and the ways in which it fails to explicitly take issues of funding into account, as well as the ways in which it might covertly incorporate underfunded practice norms. In Part II, the article provides an analysis of the Alabama courts' application of Strickland and, in particular, their interpretation of Strickland's "professional norms" standard. The data resulting from this limited empirical analysis suggest that, for the most part, the Alabama courts' approach is relatively insular. More often than not, they reject the guidance of national standards and instead rely primarily on past precedent or their own judgment, based on the cases before them, to define the "professional norms" by which the reasonableness of an attorney's conduct shall be judged. The nature of the Alabama courts' analysis makes it more likely that the realities of underfunding will influence, and ultimately lower, the standard of attorney conduct that is deemed "reasonable." Thus, it serves as a demonstration of how Strickland not only fails to account for underfunding, but in doing so, also allows the lowest common denominator for attorney performance to define effective assistance of counsel under the Sixth Amendment. In light of these findings, Part III provides suggestions for how courts might better address funding issues under the Strickland analysis.

1. STRICKLAND AND THE PROBLEM OF UNDERFUNDING

   To prevail on a Strickland claim, a criminal defendant alleging ineffective assistance must first prove that his counsel's conduct was deficient and then demonstrate that there is a reasonable probability that, but for such deficient performance, the outcome of the proceeding would have been different. (15) In defining "deficient performance," the Strickland Court declined to provide any substantive guidance, explaining that

   [t]he Sixth Amendment refers simply to 'counsel,' not specifying particular requirements of effective assistance. It relies instead on the legal profession's maintenance of standards sufficient to justify the law's presumption that counsel will fulfill the role in the adversary process that the Amendment envisions. The proper measure of attorney performance remains simply reasonableness under prevailing professional norms. (16) The standard articulated in Strickland begs the question: how do courts identify the "professional norms" on which they will rely? And what forces might bear on that determination? Many types of evidence could be marshaled to provide a basis for the "norms" referenced in Strickland. A court could rely on primary evidence, such as the testimony of expert witnesses and defense attorneys; decisions from legal malpractice cases or attorney disciplinary hearings; or professional ethics opinions from bar associations. (17) Alternatively--and likely more common--they might turn to secondary sources, such as the American Bar Association (ABA) Guidelines, the ABA Rules of Professional Conduct, guidelines from the National Legal Aid Defender Association (NLADA) and the U.S. Department of Justice, or law review articles. (18) Inadequate defense funding may also influence, albeit less directly, the definition of prevailing norms or "reasonable" attorney conduct. (19) This is particularly true in the case of primary evidence, which may be more susceptible to localization, and of state court decisions--inevitably influenced by the standard of practice to which judges have become accustomed--analyzing whether counsel's conduct in a previous case was reasonable.

   For example, a court could conclude that it was "reasonable" for an attorney not to seek funding for a particular expert given how rarely other attorneys utilize that type of expert, how infrequently funding is granted to secure such an expert, or the unlikelihood that any funds will be available for such an expense. (20) Perhaps it might also be "reasonable" for a lawyer not to request additional funding from a judge, knowing the county has limited funds and the attorney has other cases in the pipeline for which she plans to request funding--much in the way that the Georgia public defender office referenced in the introduction had to decide which cases would benefit from the office's limited funds. Moreover, given the tendency for courts to defer to counsel's strategic decisions about how to litigate a specific case (and the extent to which such deference is built into the Strickland framework itself), courts are unlikely to look behind or question the reasons for counsel's decisions. (21) Thus...