DOES STRICKLAND PREJUDICE DEFENDANTS ON DEATH ROW? forthcoming in 43 U. Rich. L. Rev. (2009)

Kenneth Williams, Southwestern Law School

Abstract

In Baze v. Rees, the Supreme Court reaffirmed the constitutionality of the death penalty in general and lethal injection in particular. Since no executions were allowed while the cse was being considered, there will be a substantial number of executions over the next few years. Although the facts and circumstances of each case will differ, one common theme is likely to emerge: that the defendants did not receive adequate legal representation at their trials. This article addresses this enduring problem. In particular, I assert that the Supreme Court's requirement in Strickland v. Washington, that a defendant prove prejudice in order to prevail on a claim of ineffective assistance of counsel, is the crux of the problem and I demonstrate through a study of lower court decisions that the Supreme Court's later attempts to ameliorate the harshness of Strickland hasn't been successful.

This article begins with a discussion of the numerous problems that arise when defendants are not properly represented. In Part II, I provide a full discussion of the Supreme Court's decision in Strickland v. Washington, including Justice Marshall's concerns regarding the majority's adoption of a prejudice requirement and how this requirement often results in a breakdown of the adversarial system. In Part IV, I analyze three subsequent decisions of the Supreme Court designed to clarify Strickland and presumably ameliorate the harshaness of the prejudice requirement. In Part V, I present the results of a survey of circuit court decisions that I conducted in order to measure the impact of the three decisions. My conclusion from the survey is that while the three decisions have improved some aspects of Strickland, the concerns that Justice Marshall expressed regarding the prejudice prong persists and capital defendants haven't achieved any greater success in obtaining relief. In Part VI, I present two cases, including one that I personally litigated, to illustrate the continuing problems with the prejudice prong of Strickland. In the final section of the article, I analyze some proposals that others have made for improving the prejudice prong and then conclude that in light of my study of lower court deciisons and the intractable problems since the decision in Strickland, the only way to ensure that capital defenants receive the representation that the constitution entitles them to is to totally abandon Strickland's prejudice requirement instead of continuting to tinker with it. Finally, an appendix containing a brief synopsis of the successful cases during the five years both before and after the Supreme Court's decision in Wiggins v. Smith is attached.