In 1984, The Supreme Court established new standards for assessing whether a lawyer’s performance was so bad that the client’s right to a fair trial was compromised. “An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair,” the court said in Strickland v. Washington. Twenty-three years later, says Legal Times, many experts say that the promise of Strickland has gone unfulfilled, with underpaid and overwhelmed lawyers still allowed to give indigent defendants subpar representation.
Criminal defense lawyers fear that the Supreme Court is starting to retreat from Strickland itself. On Nov. 5, the high court agreed to consider an Idaho case that will weigh the obligation of lawyers to explain to their clients the consequences of not accepting a plea agreement. “Part of me is very scared” about the outcome of the Idaho case, says Bryan Stevenson of the Equal Justice Initiative in Alabama, where he has represented capital defendants for nearly 20 years. In spite of Strickland, he says, “There is a crisis surrounding counsel for the poor.” The author of Strickland, retired Justice Sandra Day O’Connor, acknowledged at a conference that her decision left unanswered questions, though she still points to it as perhaps the case that has had the most day-to-day impact of any decision she wrote in her 25 years. The ruling produced “many years of additional litigation” and did not resolve all the issues relating to effective representation of clients, she said. “We have so many questions today.”