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AMY R. MURPHY [*] I INTRODUCTION Not until the twentieth century did the United States Supreme Court rule that all criminal defendants, whether in state or federal court, had a right to be represented by counsel under the Sixth Amendment. [1] Until nearly the end of that century, however, the Court went no further than stating that defendants had a right to counsel, without specifying whether that meant competent counsel. In 1984, there were two landmark cases in Sixth Amendment jurisprudence. The first is the source of the requirement that counsel provide effective assistance, although the Court did not clarify what such assistance would entail. [2] Out of this requirement have arisen countless appeals based on ineffective assistance of counsel ("IAC"). Until the Court heard the second landmark case, Strickland v. Washington, [3] that same year, courts ruled on these claims without any guidance. The Court defined effective assistance of counsel according to what it was not: a deficient performance that so prejudiced the defense as to depri ve the defendant of a fair trial. [4] The Court gave little guidance about what constitutes a constitutionally deficient performance, and even less to how prejudicial the effect of the deficient performance has to be in order to be found unconstitutional. As a result, the Court did little more than to sanction the broad discretion already employed by courts in considering IAC claims. This discretion leads to arbitrary determinations in capital cases, which, although they may satisfy the low bar set for Sixth Amendment analysis, violate the Eighth Amendment. In the 1995 Law and Contemporary Problems symposium entitled "Toward a More Effective Right to Assistance of Counsel," Professor Uelmen gave a "guided tour" of the Sixth Amendment from which he gleaned several lessons. [5] First, criminal defense will never have a high funding priority in this nation. [6] Second, the difference between no counsel and incompetent counsel is a judicial fiction that enables courts to make distinctions under the Sixth Amendment that do not exist in reality. [7] Finally, Professor Uelmen noted the shortcomings in the current standards for legal counsel: "[I]f courts regarded the competence of defense counsel as just as essential to the achievement of justice as the competence of the judge, we would certainly see a different standard of competence applied." [8] It is these lessons, combined with the utter lack of any meaningful guidance from the Supreme Court as to what constitutes a prejudicial effect, that makes the Strickland standard a violation of the Eighth Amendment. Just a s legislation that gave juries complete and unguided discretion over the sentencing of capital defendants was deemed unconstitutional because it resulted in arbitrary punishment, [9] so the Strickland standard is unconstitutional because it recreates those same problems at the appellate level. Criminal defendants are guaranteed the right to effective assistance of counsel under the Sixth Amendment, but the Supreme Court's decision in Strickland has given appellate courts overly broad discretion to determine exactly what constitutes ineffective assistance of counsel. As a result, there is little consistency within judicial districts or across districts. [10] Legal assistance that might be constitutionally deficient and prejudicial before one judge may not even be considered unreasonable before another. Although most courts and legal scholars have examined the constitutionality of the assistance of counsel on an individual basis under Sixth Amendment jurisprudence, the appellate review of TAC claims in capital cases itself violates the Eighth Amendment prohibition of cruel and unusual punishment, especially as it is analyzed in Furman v. Georgia," because it results in impermissible arbitrariness in the sentencing of capital defendants. Part II of this note begins with a review of the right to couns el, which leads to a discussion of the importance of this right in capital cases. …

The Constitutional Failure of the "Strickland" Standard in Capital Cases under the Eighth Amendment