Strickland’s performance standard is too weak, too vague, and far too deferential. The Court in Strickland bent over backwards to guard against Monday-morning quarterbacking. The Court reminded us that calculated risks sometimes fail, and admonished that courts should not second-guess counsel’s decisions in hindsight. Moreover, defense lawyering is a craft or an art, not a science, so different craftsmen may investigate and try cases very differently. For instance, one defense lawyer will attack a prosecution witness’s truthfulness on cross-examination; another will more subtly question his memory or eyesight. One will try to strike a deal to cooperate with the prosecution; another will hang tough in plea bargaining. One defense lawyer will take the risk of having his client testify to an alibi, at the cost of being cross-examined about his prior convictions; a second will put on no witnesses but poke holes in the prosecution’s theory to create reasonable doubt. While that is all true and calls for some judicial deference, it makes these tactical judgments hard to second-guess in hindsight. Unfortunately, the murkiness of Strickland’s standard plus the strong presumption of effectiveness make it extremely hard to review convictions case by case. The lack of rules makes it hard to specify what a defense lawyer should have done and so what qualifies as an error rather than a judgment call.
The strong presumption of reasonableness compounds the problem of vagueness, leading courts to imagine reasons why a defense lawyer might have meant to do something that in fact was a dumb mistake. And instead of 20/20 hindsight, reviewing courts fall into the opposite trap: In retrospect, convictions seem inevitable, and it becomes easy to dismiss errors as immaterial to the foreordained result. Psychologists call this perception the “inevitability bias.” That perception is particularly strong because most convictions result from guilty pleas, which lack trial transcripts to document counsel’s performance and are colored by defendants’ admissions of guilt.16
Moreover, Strickland’s focus on a few bad apples distracts attention from the broader deficits that breed systemically poor representation in the first place. As Chapter 2 explained, the problems of poor defense lawyering are rooted in system-wide underfunding and overwork. By and large, courts cannot and will not fix these deeply flawed structures. They are loath even to specify and enforce maximum caseloads, salaries, and support staff. Those are all systemic foundations of the problem, which bear indirectly on the guilt and conviction of any particular defendant before a court. A few adventurous state courts have tried halting prosecutions in excess of recommended defender caseloads, or ordering their state legislatures to increase defense funding, equalize prosecutors’ and defense lawyers’ salaries, or at least cover defense lawyers’ out-of-pocket expenses. But courts are poorly equipped to manage tax revenues, other funding sources, and budget tradeoffs in a world of scarcity. Though court orders have occasionally led to onetime bumps in indigent defense funding, any gains have been transient; inflation and rising caseloads soon wipe them out.17
As a result of all these failings, Strickland means little in practice. Defendants routinely challenge their lawyers’ performance when they are convicted, and reviewing courts routinely rubber-stamp their convictions and sentences. Courts of appeals, swamped with frivolous ineffectiveness claims, approach each one with a jaundiced eye. As Justice Jackson put it, “It must prejudice the occasional meritorious application to be buried in a flood of worthless ones. He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search.”18 This is particularly so because reversing a conviction would require a whole new trial, often with similar lawyers and resources in similarly strapped and busy circumstances.
Thus, courts wind up reversing only a small percentage of all cases, catching only the most egregious outliers. As Chapter 2 explained, courts sometimes even overlook lawyers’ abuse of drugs and alcohol and napping during trials. They rarely overturn less glaring malpractice, let alone mere failure to test the prosecution’s case zealously. In short, any “lawyer with a pulse will be deemed effective.”19 Gideon’s trumpet is muted.
Powell began from the top of the pyramid of crimes. It envisioned equal justice and a level playing field for the most serious crimes in the most outrageous circumstances: a mob-dominated legalized lynching of young black men accused of raping white women. Gideon rightly generalized Powell to all felony cases, now that they have become too complex for laymen to navigate on their own. Gideon was right both symbolically and practically; it was an important step toward leveling the playing field in felony cases. But simply announcing a right does not make it effective. The Court kept extending this vision of formal, Cadillac justice down the pyramid to more and more misdemeanors, beyond courts’ ability or legislatures’ willingness to implement it well. And legislatures kept expanding the breadth and depth of criminal laws so as to claim political credit and give prosecutors more tools. As a result, the system grew ever more complex and more reliant on plea bargaining to clear growing dockets. Argersinger even envisioned routine constitutional challenges to vagrancy prosecutions, as if even the tiniest and most routine cases were snowflakes to be marveled at in all their hidden complexity. As Strickland shows, Gideon means far less in practice than it should in theory. The emperor has a few clothes, but his suit is shabby indeed.
Access to Justice in Civil Courts
Every other week during the semester, the University of Tennessee’s Homeless Legal Advocacy Project troops out to the Knoxville Area Rescue Ministry, a local homeless shelter. Under the supervision of Professor Ben Barton or another licensed attorney, students try to answer the legal questions of Knoxville’s homeless. If the cases are simple enough, the students take them on. The results fall into telltale patterns: patterns not only of typical problems and solutions, but also of basic legal issues that are too complicated to handle without a lawyer but too expensive to handle with one.
Take, for example, divorces. The University of Tennessee Law School’s clinics are regularly asked for advice or help in divorcing a spouse. Two groups of homeless people can get divorces relatively easily. If the potential client and spouse are local, have no children and little property, and substantially agree about the divorce, the process is straightforward. The students can go to the Tennessee Supreme Court’s website and print out forms “for divorces where both spouses agree on all parts of the divorce, there are no minor or dependent children involved, and the spouses do not have a lot of property.”1 The forms come in English and Spanish. The Tennessee Access to Justice Commission developed the forms and, by order of the Tennessee Supreme Court, every court in the state must accept them if properly filled out.
These forms are meant for the poor, but a simple, agreed-upon middle-class divorce could use them as well. Similar forms are available for a fee through LegalZoom and other online forms providers. Middle-class couples with simple divorces can also hire a lawyer (who likely just fills in the forms described above) for as little as $500. In short, for the homeless or the middle class, there is not much of an access-to-justice problem for extremely simple divorces.
If the homeless client has suffered abuse in the marriage, it is also fairly easy to seek a divorce. This is because, like many legal aid offices, Legal Aid of East Tennessee gives priority to divorces where one spouse claims abuse. They have to apply some such filter, because the demand for free legal services greatly outstrips the supply of free lawyers. So, unless the client claims abuse, he or she goes on an endless waiting list. This filter is sensible, as Legal Aid’s funding is tight and it must decide who needs help right away. Nevertheless, the filter does severely limit the types of divorces Legal Aid handles. Anecdotally, it has another effect: prompting over-claims of abuse. Well-meaning legal aid screeners may tell a potential client, “I’m sorry, we can’t take your divorce because we focus