Excerpted From: Alexis Hoag-Fordjosel, White Is Right: The Racial Construction of Effective Assistance of Counsel, 98 New York University Law Review 770 (June, 2023) (552 Footnotes) (Full Document)


DAlexisJHoagFordjourecided in 1984, Strickland v. Washington, established the two-prong test for determining whether defense counsel rendered constitutionally ineffective assistance. According to the standard, Reginald must show (1) that his trial lawyers' conduct fell below an objective standard of reasonableness, and (2) a reasonable probability that, but for counsel's unprofessional errors, the result of his proceeding would have been different. In short: deficient performance and prejudice. In addition, the standard requires Reginald to overcome the presumption that counsel's conduct was reasonable and that it may have constituted sound trial strategy.

Defendants have experienced great difficulty convincing reviewing courts that their trial lawyer rendered constitutionally ineffective assistance. The legal system's interest in finality plays a role. Structural issues with the delivery of indigent defense services are another obstacle. These include excessive caseloads, staffing shortages, and attorney inexperience, all of which are related to chronic underfunding. But this is only part of the story.

That Strickland presents a formidable hurdle for defendants seeking post-conviction relief is well-established. Scholars have recommended a variety of interventions to increase a defendant's opportunity to obtain relief under the standard. Many focus their attention on the prejudice prong, which requires the defendant to show that counsel's deficient performance impacted the outcome of their case, either their conviction and/or sentence. One of the standard's earliest critics, Justice Thurgood Marshall, argued against a prejudice requirement. Fewer have focused their criticism on the deficient performance prong. But even less interrogated is the Court's reliance on the racialized criminal legal system and legal profession in measuring deficient performance. This Article seeks to address that gap.

This Article pivots away from prior critiques of Strickland and examines the ineffective assistance of counsel standard through a critical race lens to excavate the white supremacy and privilege undergirding the Court's deficient performance determinations. In The Pathological Whiteness of Prosecution, India Thusi encourages criminal scholars to turn the critical gaze “on [w]hiteness and the experiences of privilege that it enables.” This Article brings that critical gaze to the Sixth Amendment's ineffective assistance of counsel standard. It explores what a historical interrogation of the racialized construction of effective representation can reveal. Such an interrogation is largely absent from Sixth Amendment jurisprudence and scholarship. This historical excavation helps explain how the standard continues to reproduce white supremacy and privilege instead of providing relief to indigent defendants who received inadequate representation.

Prior ineffective assistance of counsel critiques are largely silent as to the racialized and hierarchical dynamic that exists between defense counsel and the defendant and how it impacts ineffective assistance of counsel determinations. This dynamic is what contributes, in part, to court findings that counsel is effective by virtue of their racialized status as lawyers vis-à-vis the racialized status of defendants. A notable exception is Shaun Ossei-Owusu's work, The Sixth Amendment Façade: The Racial Evolution of the Right to Counsel, which explores the racialized history of the Sixth Amendment right to counsel. Ossei-Owusu focuses on the development of legal aid institutions prior to the Court's decision in Gideon v. Wainwright, which extended the right to counsel to indigent defendants. He argues that race impacted the delivery and development of the right to counsel and that such an acknowledgement can help inform contemporary reforms to indigent defense services. This provided the groundwork for analyzing the Sixth Amendment through a critical race lens at large, while this Article hones in on the ineffective assistance of counsel component.

Expanding on my prior racialized examination of the Sixth Amendment right to counsel of choice, this Article brings race to the forefront in analyzing the way courts determine defense counsel's effectiveness. In Black on Black Representation, I explored the impact that extending the right to counsel of choice to indigent defendants could have on indigent Black clients who prioritized racial congruency in representation and/or cultural competency. Race is a salient, yet undertheorized aspect of the right to counsel. My intent is to advance previous race excavation work in other aspects of criminal procedure and apply it to the various aspects of the Sixth Amendment right to counsel. Devon Carbado produced a body of work interrogating “the race constructing role the Court performs in the Fourth Amendment context.” In it, Carbado turns a critical lens on the Court's “racial allocation of the burdens and benefits of the Fourth Amendment,” revealing that the Court's reification of race controverts the law's purported colorblindness. Also within the Fourth Amendment context, Bennett Capers turned a critical eye on white privilege in his essay The Under-Policed, asking what the under-criminalization of white people can reveal about mass incarceration. This Article extends such critiques--with a focus on the whiteness, power, and privilege of the legal profession--and applies them to the Sixth Amendment's ineffective assistance of counsel standard.

This excavation reveals that the ineffective assistance of counsel standard was built upon a Jim Crow-era case, Michel v. Louisiana, involving an interracial rape conviction, an indigent Black client, and a white lawyer who the Court assumed was competent by virtue of his whiteness and professional status. Given the inflammatory nature of the conviction, which threatened racial and social norms, the Court's denial of the defendant's basic right to counsel was unsurprising. In denying the defendant's legal claim, the Court reinforced existing racial and social ordering under the guise of race neutrality.

Three decades later, the Court relied on dicta from Michel when it established the presumption of counsel's reasonableness and competency in Strickland. Accordingly, when determining deficient performance, reviewing courts must start with the premise that defense counsel was competent, acted reasonably, and their conduct may have been sound trial strategy. Courts measure all of this against prevailing professional norms. This Article reveals that white supremacy, racialized notions of professionalism, and the racially subordinated status of defendants (regardless of the defendant's actual race) undergird each step of the determination.

Strickland's first prong, deficient performance, requires defendants to measure trial counsel's conduct against prevailing professional norms. For these norms, the Court referenced the American Bar Association (ABA) Standards for Criminal Justice. The law operates as though these norms are neutral, objective, and unbiased. But they are situated amidst white-dominated culture, values, and conduct and rooted in racial subordination and privilege. When the ABA first promulgated guidelines in 1908, the legal profession was almost exclusively white. With the rise in professionalism across industries in the late 1800s and early 1900s, the legal profession sought to maintain its exclusivity and white supremacy by erecting barriers to entry. These efforts proved successful. Between 1900 and 1940, Black lawyers made up less than one percent of licensed attorneys. Exclusionary barriers based on race extended into practice, for example, New York City's criminal defense bar excluded eastern European and Jewish lawyers, considered “not fully white” at the time, from membership.

Meanwhile, criminal behavior was, and continues to be, racialized as Black. The stereotype of Black people as criminal and dangerous was born out of slavery and the racial hierarchy that resulted. Bryan Stevenson explains that “[t]he presumptive identity of [B]lack men as ‘slaves' evolved into the presumptive identity of ‘criminal,”’ and that “we have yet to fully recover from this historical frame.” In an 1861 opinion, the Alabama Supreme Court reasoned that Black people were “human beings” only in the context of “committing crime,” but because they are “slaves, they are necessarily ... incurably, incapable of performing civil acts” and are therefore, “things, not persons” in every other context. Historian Khalil Muhammad calls it “racial criminalization: the stigmatization of crime as ‘[B]lack”’ while simultaneously “masking ... crime among whites as individual failure.”

Recognizing the Black-white racial polarization of the legal profession and people accused of crime provides a clarifying structural framework for understanding the ineffective assistance of counsel doctrine. The legal standard pits criminal defendants' allegations of incompetence against lawyers ensconced in the protective layer of professionalism. With the additional weight of white supremacy, the ineffective assistance of counsel standard became a virtually insurmountable obstacle for defendants to overcome. Although the Court decided Strickland in 1984, the ineffective assistance of counsel standard's roots extend a full century prior to Reconstruction. To better understand the ineffective assistance of counsel standard's contemporary operation, this Article's excavation starts there. Professor Dorothy Roberts explains that “[B]lack people are actively being harmed by structures and ideologies rooted in slavery and reproduced in new forms under current political conditions.” To better understand the standard's contemporary operation, this Article looks at the standard's origins. Professor Daniel Harawa encourages criminal scholars to excavate the racist origins of laws to help “advance racial justice.”

In interrogating whiteness, this Article helps us understand why all defendants, regardless of race, encounter difficulty when seeking relief from trial counsel's poor performance. Faced with a defendant's allegations of professional incompetence, counsel's status as a lawyer renders the ineffective assistance of counsel standard toothless. Rather than provide a pathway for aggrieved defendants, the ineffective assistance of counsel standard acts as an empty vessel designed to protect the profession. The Article proceeds in four Parts: Part I identifies critical race theory as a tool to examine the historical and racialized construction of the criminal legal system and the legal profession. It tethers this analysis to early ideas about representation and effectiveness. Part II excavates Michel v. Louisiana, the Jim Crow-era case that laid the foundation for the presumption of counsel's reasonableness and competency and the assumption that trial counsel's conduct was sound trial strategy. This Part details how Michel exemplified the racialized notions of crime, perpetrators of crime, and defense counsel.

Part III reveals how the racialized construction of criminal legal system actors helped shape the Court's decision to use Strickland v. Washington as the vehicle for the ineffective assistance of counsel standard. It also reveals how the Court elevated dicta from Michel and placed it firmly within the ineffective assistance of counsel standard, mandating that reviewing courts presume counsel acted reasonably. Part IV details how racialized professional norms and the presumption of reasonableness and competency reinforce the hierarchy between defense counsel and the defendant. This Part then applies the framework to two recent cases, Florida v. Nixon and McCoy v. Louisiana. Each case involved a Black defendant facing capital murder charges and overwhelming evidence of guilt and defense counsel who made the strategic decision to concede the defendant's guilt. The Court's decision in each case illustrates how the racial construction of the ineffective assistance of counsel doctrine perpetuates white supremacy.

This Article concludes with a call for scholars to acknowledge the role that white supremacy plays in the development of criminal procedure. Such acknowledgment enables us to realize more dynamic strategies to release the subjugating hold the criminal legal system exacts on marginalized people. Here, that includes a proposal to abolish the presumption that counsel's conduct was competent and that it may have been sound strategy.

[. . .]

We live in a nation founded upon and reliant on the subordination of people of color. Our laws are based on white legal traditions and designed to maintain the existing power structure. The law's notions of who is reasonable, who is competent, and who bears the burden of proof are all based upon white cultural norms and are intended to perpetuate the racial hierarchy. Nowhere is this clearer than in the criminal adjudication system. Interrogating the role of whiteness in the Court's criminal procedure jurisprudence can inspire interventions better suited to address its deep-seated problems. Daniel Harawa encourages scholars to identify and examine the racist origins of laws. He cautions that failing to do so “allows [racism] to persist unexamined and unabated.” Recognizing that white supremacy is embedded in the ineffective assistance of counsel standard is only the beginning. As Derrick Bell theorized, racism is permanent. Acknowledging this reality frees us “to imagine and implement racial strategies that can bring fulfillment and even triumph.”

Alexis Hoag-Fordjour, Assistant Professor, Brooklyn Law School.