Ineffective Counsel and Post-Conviction Relief
Session 4: Post-Conviction and Wrongful Convictions – Module 8
The Strickland v. Washington standard for ineffective assistance of counsel requires proving
both deficient performance and a prejudicial impact on the outcome. Does the Strickland
standard set too high of a bar for defendants? Should access to post-conviction relief be
expanded, and if so, how should this be accomplished?
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What is the Strickland v. Washington standard for ineffective assistance of counsel?,
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Does the Strickland standard set too high of a bar for defendants?,
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Should access to post-conviction relief be expanded?,
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How could access to post-conviction relief be expanded?,
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What reforms could balance fairness with judicial efficiency?
Answer
The Strickland v. Washington (1984) decision established the legal framework for claims of ineffective assistance of counsel under the Sixth Amendment. To succeed, a defendant must prove two elements: first, that the attorney’s performance was deficient, meaning it fell below an objective standard of reasonableness; and second, that the deficiency prejudiced the outcome, meaning there is a reasonable probability that the result would have been different but for the attorney’s errors. This dual standard is designed to ensure that only serious failures that undermine the reliability of a trial’s outcome warrant relief.
However, many scholars, defense advocates, and judicial reformers argue that the Strickland standard sets too high of a bar for defendants. The courts tend to interpret “deficient performance” narrowly and give great deference to counsel’s strategic choices, even when they are questionable. Likewise, proving “prejudice” is often nearly impossible since defendants must show that the trial outcome would likely have changed, a speculative standard that favors finality over fairness. As a result, even egregious attorney failures—such as inadequate investigation, lack of expert consultation, or minimal client communication—often fail to meet the Strickland threshold.
Expanding access to post-conviction relief is essential to address wrongful convictions and systemic inequities. This could be accomplished through several reforms:
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Lowering the prejudice standard to require only that counsel’s errors undermined confidence in the verdict, rather than demanding proof that the outcome would have changed.
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Creating independent review commissions (like innocence commissions) to reexamine cases involving credible claims of ineffective counsel or new evidence.
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Ensuring equal access to post-conviction counsel, since many indigent defendants cannot effectively file Strickland claims on their own.
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Encouraging greater transparency and oversight of public defense systems, including workload limits and performance evaluations, to prevent systemic ineffective representation.
While expanding post-conviction relief could increase the volume of appeals, the benefit of preventing wrongful convictions outweighs the administrative burden. The justice system’s legitimacy depends on both fairness and accuracy. A more flexible and accessible post-conviction framework would help strike this balance, honoring the constitutional guarantee of effective counsel not merely in theory but in practice.
References (APA 7th Edition)
Strickland v. Washington, 466 U.S. 668 (1984).
Bright, S. B. (2010). Counsel for the poor: The death sentence not for the worst crime but for the worst lawyer. Yale Law Journal, 103(7), 1835–1883.
Harrington, D. (2019). Rethinking Strickland: Evaluating the effectiveness of counsel in the modern era. American Criminal Law Review, 56(2), 321–348.
