The Constitution’s Sixth Amendment promises that “[i]n all criminal prosecutions, the accused shall . . . have the assistance of counsel for his defense.” In order to protect the defendant’s liberties in the adversarial system contemplated by the Sixth Amendment the mere presence of an attorney on behalf of the accused is not sufficient. The Sixth Amendment promises that an attorney for the accused will be qualified to play an active role in meeting the demands of the prosecution’s case. As such, the Supreme Court recognized that the right to counsel is the “right to the effective assistance of counsel.”
For years, the states and the federal circuits handled the issue of what qualified as ineffective assistance of counsel. In 1984, the Supreme Court established a test to measure all ineffective assistance claims with its decision in Strickland v. Washington. The test consists of two prongs: the attorney’s performance must have been deficient and this deficiency must have materially prejudiced the defense.
A year after deciding Strickland, the Supreme Court in Hill v. Lockhart addressed the question of whether the Strickland test covered pretrial proceedings. The Court specifically stated that a defendant who accepted a plea bargain under an attorney’s advice could prove ineffective assistance by demonstrating attorney error and prejudicial effect. Despite requests for certiorari, the Supreme Court has not yet rendered a decision relating to a habeas petition based on ineffective assistance arising from a foregone plea bargain.
This Note will address the ineffective assistance doctrine as it applies to plea bargaining, with a focus on the limitations of the Strickland test and federal habeas corpus provisions. Part II will discuss the historical foundation of the ineffective assistance doctrine, its application to both accepted and rejected plea bargains, criticism of the Strickland test, and federal habeas corpus legislation. Part III will analyze Supreme Court jurisprudence as it applies to the ineffective assistance doctrine, demonstrate the different approaches state and federal courts use to apply the doctrine to foregone plea bargains, and consider the effect that the Strickland test and federal habeas corpus procedures may play in the differing approaches’ settlement. Part IV concludes that without Supreme Court intervention, the federal circuits will be unable to address directly the doctrinal split within their own jurisdictions. . . .