Document Type


Publication Date

Spring 2007


Effective counsel, Death penalty, Capital punishment


Criminal Law


Shoddy lawyering in capital cases is well documented. Many defendants facing the death penalty end up on death row not because of the heinousness of the crime they committed but rather because of the poor quality of trial counsel's performance. Despite the acknowledgment of sometimes shockingly poor representation by academics, litigators and even judges, most post-conviction claims of ineffective assistance of counsel are unsuccessful. Why? The legal standard for adjudicating these allegations which the Court adopted in Strickland v. Washington, which requires a defendant to demonstrate that his lawyer's performance was outside the "wide range of competent assistance" and that because of the substandard representation there is a reasonable probability that the outcome would have been different, has proven to be very difficult to satisfy. The Supreme Court's recent decisions in Williams v. Taylor, Wiggins v. Smith, and Rompilla v. Beard, however, have provided some reason for optimism. While purporting to operate within the Strickland framework, the Court in all cases held that trial counsel's representation was constitutionally inadequate. In doing so, the Court used the ABA Standards for Criminal Justice as norms for counsel's performance in determining what constituted objectively reasonable representation.

This article explores the jurisprudential road to Strickland, and from Strickland to Williams, Wiggins, and Rompilla. It then posits that, viewed through the lens of history, the Court's use of the ABA guidelines is reminiscent of the standard Judge Bazelon articulated thirty years ago in Decoster v. United States which the Court rejected in Strickland. Consciously or subconsciously, the Court has now embraced a variation of the Bazelon's Decoster approach when reviewing ineffective assistance of counsel claims. In all likelihood, this is because the Court concluded that Strickland's vague standard was being misunderstood and misapplied by the state and federal courts in a manner that insulated grossly incompetent representation from judicial review. Thus, the Court used the ABA guidelines to put some "flesh" on the Strickland "skeleton". Finally, the article explores the effect of the Court's decisions on ineffective assistance of counsel claims reviewed by the state and federal courts, concluding that additional reforms are needed if the promise of effective assistance of counsel is to become a reality.

Publication Citation

Published in American Journal of Criminal Law, vol. 34, no. 2 (Spring 2007).

Included in

Criminal Law Commons