White is Right: The Racial Construction of Effective Assistance of Counsel

The legal profession is and has always been white. Whiteness shaped the profession’s values, culture, and practice norms. These norms helped define the profession’s understanding of reasonable conduct and competency. In turn, they made their way into Sixth Amendment right to counsel jurisprudence. This Article interrogates the role whiteness plays in determining whether a defendant received effective representation and provides a clarifying structural framework for understanding ineffective assistance of counsel jurisprudence.<br><br>The Sixth Amendment ineffective assistance of counsel standard relies on presumptions of reasonableness and competency to determine whether defense counsel’s conduct met constitutional requirements. To prove ineffective assistance of counsel, defendants must show counsel’s conduct fell below an objective standard of reasonableness, and that but for counsel’s unprofessional errors, a reasonable probability that the proceeding’s outcome would have been different. This Article focuses on the racialized presumption of reasonableness and competency that the law extends to defense counsel when determining ineffective assistance of counsel claims.<br> <br>The law enables courts to rely on a default white normative perspective to shield criminal adjudications from critical analysis. In applying a critical race lens, this Article examines the racialized construction of the criminal legal system and the legal profession. It excavates a Jim Crow era case, Michel v. Louisiana, which laid the foundation for the presumption of counsel’s reasonableness and competency. It reveals how the Court relied on Michel to solidify these racialized presumptions in Strickland v. Washington’s ineffective assistance of counsel standard. This historical context helps explain why all defendants encounter difficulty when seeking relief from defense counsel’s poor performance.