In September 1981, Sandra Day O’Connor became the first woman to serve on the United States Supreme Court. Three years later, in 1984, Justice O’Connor authored the landmark decision Strickland v. Washington 466 U.S 668 (1984) granting defendants a right to appeal on the basis of inadequate representation.
In a keynote speech delivered on Nov. 7, 2007—23 years after the court’s decision— Justice O’Connor suggested that the law should be revisited in order to repair some of the deficiencies related to this novel criminal procedure she helped create. Her speech was part of a conference titled “Strickland v. Washington: How Effective is the Right to the Effective Assistance of Counsel Standard?” held at the Library of Congress and sponsored jointly by the Law Library and the Constitution Project.
In Strickland the defendant (who had pleaded guilty to three counts of murder and other charges and was sentenced to death) challenged his sentence on the basis of inadequate representation by counsel at sentencing. The Supreme Court rejected his appeal, but did establish standards for “ineffective counsel” as required by the Sixth Amendment. A claim of ineffective counsel under the standards created by Strickland requires the defendant to establish that the counsel’s performance was deficient, and that the errors made were serious enough to deprive the defendant of a fair trial.
According to O’Connor, the Strickland standards “do not answer all the questions that need to be answered.” Moreover, the ideals of Strickland—protection against injustice arising from inadequate counsel—cannot be resolved solely by the identification of standards. She continued, “Some of Strickland’s standards will survive … [but] making it work in today’s situation will take significant new work.” She suggested that the remedy may even require the Supreme Court to “give better shape to the scope of the Sixth Amendment right itself in the process.”
“If I could wave a magic wand—and I can’t, they didn’t give me one at the court—I would have it create a merit selection for judges,” said O’Connor.
She believes that a lack of legal aid for impoverished defendants and election of judges and advocates who were only arguing for the defense or for the prosecution are all factors that hampered the protections Strickland sought to establish. That, presumably, hampered justice—”the goal in any criminal case,” O’Connor added.
According to O’Connor, the Strickland case is a rule-of-law issue. She described the rule of law as involving “legal principles, and a legal system and courts that can fairly and adequately and competently deal with and apply laws of the nation or state.” She finds it “painful” that it is increasingly difficult to find a judge who can apply the law impartially, “free from threat of reprisals from the other two branches of government.”
“I’m not sure we have that today in some states within the U.S … I have serious questions that [you] can end up with a truly independent judiciary in the face of partisan election of judges, where huge sums of money change hands.”
It is not just an elected judiciary that raises concerns for Justice O’Connor. She believes that an imbalance between prosecution and defense counsel is also a threat to justice.
“We need to do a better job of training lawyers … we need to set up an office of qualified lawyers for the public and pay them what they deserve,” she said.
Looking “across the pond” to the United Kingdom, Justice O’Connor observed that their system of solicitors and barristers (with barristers appearing in court and appearing both for the defense and the prosecution in different matters) provides a “level of courtesy among lawyers and in the court that we don’t see.” Ideally, O’Connor would like to “find a couple of jurisdictions that would be willing to set up offices of public lawyers” who would be equally remunerated and assigned to either the defense or the prosecution for each case.
When asked about her most important or lasting decisions. Justice O’Connor responded that Strickland “got into new territory.” As for her legacy, she said, “let the historians figure that out.”
Webcasts of the conference and other Law Library events are accessible at www.loc.gov/law/news/webcasts.html.
