The Sixth Amendment guarantees criminal defendants the right to counsel. For that right to be meaningful, a lawyer must meet “at least the minimum standard of competence.” [ 1 ] Criminal defendants are not entitled to the best representation, but only representation that falls “below an objective standard of reasonableness.”
Representation that fails to meet the requirements of Strickland can take many different forms. It can range from extreme cases in which lawyers miss important court dates, fail to make necessary filings, or are even intoxicated during court proceedings, to more subtle cases where lawyers make mistakes that, although innocent, can have an impact on a client’s case. According to the National Registry of Exonerations, in roughly 1 in 5 cases where someone was wrongfully convicted and ultimately exonerated, an inadequate legal defense was a contributing factor.
Problems of inadequate counsel persist in both the public and private criminal defense bar. On the 40th anniversary of the Supreme Court’s decision in Gideon v. Wainwright, 372 U.S. 335 (1963) holding that felony defendants are entitled to an attorney regardless of their ability to pay, the National Legal Aid and Defender Association identified five problems that continue to pose a problem to public defense in the United States. As NLADA identifies, the problem with ineffective assistance of counsel is not only inadequate courtroom performance, but the failure to conduct pretrial preparation to make sure that evidence is collected, witnesses are located, and a case is fully prepared for trial. These problems are frequently the result of excessive caseloads and lack of funding for criminal defense that prevents criminal counsel from devoting full preparation for trial. Mother Jones explored these issues in this 2013 article: “Charts: Why You’re in Deep Trouble If You Can’t Afford a Lawyer”.
While the popular press might focus on inadequate legal defense as a public defense issue, it is an equal, if not greater problem for the private bar, where the economics of legal practice create many of the same risks and concerns for underfunded or under-prepared legal defense. Creating a better prepared, and better funded, defense bar, continues to be a struggle in many places in the United States.