Revisiting the Prejudice Standard for Ineffective Assistance of Counsel Claims
By Carissa Byrne Hessick
W
Carissa Byrne Hessick is the Anne Shea Ransdell and William Garland “Buck” Ransdell, Jr., Distinguished Professor Law at the University of North Carolina. She served as co-counsel on an unsuccessful petition for certiorari to the U.S. Supreme Court in State v. Thompson. 46
The Arkansas Lawyer
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hen it comes to the effective assistance of counsel, Arkansas is an outlier. It only allows convicted defendants to challenge the effectiveness of their counsel at sentencing if they received the maximum possible sentence. This rule is not only in direct conflict with cases from other jurisdictions, but it is also in conflict with the U.S. Supreme Court’s Sixth Amendment right-to-counsel doctrine. The principles of that doctrine strongly suggest that any defendant who receives more than the minimum possible sentence should have the opportunity to prove prejudice. The Sixth Amendment requires defendants receive effective assistance of counsel at all critical stages of a criminal prosecution, including the sentencing phase.1 In order to win an ineffective assistance of counsel claim, a defendant must demonstrate both that counsel’s performance was unreasonable under prevailing professional norms, and that the deficient performance prejudiced the defendant.2 In order to prove prejudice in a capital sentencing proceeding, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”3 But the prejudice standard for non-capital sentencings is not entirely settled. All courts agree that defendants are entitled to effective assistance during non-capital sentencing proceedings, but they have not always agreed on the proper legal standard for establishing prejudice. Some courts have held that the appropriate prejudice standard is a reasonable probability that counsel’s deficient performance at sentencing led to any increase in her sentence.4 Others have held that the appropriate standard is a reasonable probability that, but for counsel’s deficient performance, her sentence would have been “significantly less harsh.”5 Arkansas alone has adopted a particularly harsh prejudice standard. It says that only those defendants who receive the maximum available sentence have suffered prejudice. So long as defendants’ sentences are below the maximum, they will not be able to challenge their attorney’s performance at sentencing—no matter how deficient the performance or how harsh the sentence they receive. The Arkansas Supreme Court has never