Strickland v. Washington

The Ruling

8–1, opinion by Justice O'Connor. The Court established the two-prong test that still governs ineffective-assistance-of-counsel claims: a defendant must prove (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is a reasonable probability the outcome would have differed but for counsel's errors. Reviewing courts must apply 'a strong presumption' that counsel's conduct was reasonable, and must evaluate it without 'the distorting effects of hindsight.'

The Personhood Argument Not Made

The Sixth Amendment right to counsel is a personhood right — it constitutes the defendant as a participant in the proceeding rather than its object. Strickland's deference rule converts that constitutive right into a near-irrebuttable presumption that whatever happened was adequate. Sleeping lawyers, drunk lawyers, lawyers who called no witnesses, lawyers who met the client for the first time at trial — all have survived Strickland review. The carceral system thus produces a defendant who has counsel as a formal matter and faces the state alone as a practical matter, which is exactly the partial-personhood the right was supposed to abolish.

The Execution Gap Created

Empirical surveys of capital habeas litigation find ineffective-assistance claims succeed in single-digit percentages, despite documented patterns of catastrophic representation in death penalty cases. The Equal Justice Initiative and other clinics have catalogued cases of executed defendants whose trial lawyers slept through testimony, were intoxicated during proceedings, or presented no mitigation evidence whatsoever — none of which cleared the Strickland bar. The doctrine functionally privatizes constitutional adequacy: whatever the local bar tolerates becomes constitutionally sufficient.

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Related cases

• Shelby County v. Holder (2013)
• Dred Scott v. Sandford (1857)
• McCleskey v. Kemp (1987)
• Dobbs v. Jackson Women's Health Organization (2022)

Part of The Personhood Prism, the companion to The Execution Gap by Thomas William Hornig. See all personhood cases →