Strickland v. Washington

Justice Brennan,

concurring in part and dissenting in part.

I join the Court’s opinion but dissent from its judgment. Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, see Gregg v. Georgia, 428 U. S. 153, 227 (1976) (BRENNAN, J., dissenting), I would vacate respondent’s death sentence and remand the case for further proceedings.¹

I

I ease and United States v. Cronic, ante, p. 648, present our first occasions to elaborate the appropriate standards for judging claims of ineffective assistance of counsel. In Cronic, the Court considers such claims in the context of cases “in which the surrounding circumstances [make] it so unlikely that any lawyer could provide effective assistance that ineffectiveness [is] properly presumed without inquiry into actual performance at trial,” ante, at 661. This case, in contrast, concerns claims of ineffective assistance based on allegations of specific errors by counsel— claims which, by their very nature, require courts to evaluate both the attorney’s performance and the effect of that performance on the reliability and fairness of the proceeding. Accordingly, a defendant making a claim of this kind must show not only that his lawyer’s performance was inadequate but also that he was prejudiced thereby. See also Cronic, ante, at 659, n. 26.

I join the Court’s opinion because I believe that the standards it sets out today will both provide helpful guidance to courts considering claims of actual ineffectiveness of counsel and also permit those courts to continue their efforts to achieve progressive development of this area of the law. Like all federal courts and most state courts that have previously addressed the matter, see ante, at 683-684, the Court concludes that “the proper standard for attorney performance is that of reasonably effective assistance.” Ante, at 687. And, rejecting the strict “outcome-determinative” test employed by some courts, the Court adopts as the appropriate standard for prejudice a requirement that the defendant “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” defining a “reasonable probability” as “a probability sufficient to undermine confidence in the outcome.” Ante, at 694. I believe these standards are sufficiently precise to permit meaningful distinctions between those attorney derelictions that deprive defendants of their constitutional rights and those that do not; at the same time, the standards are sufficiently flexible to accommodate the wide variety of situations giving rise to claims of this kind.

With respect to the performance standard, I agree with the Court’s conclusion that a “particular set of detailed rules for counsel’s conduct” would be inappropriate. Ante, at 688. Precisely because the standard of “reasonably effective assistance” adopted today requires that counsel’s performance be measured in light of the particular circumstances of the case, I do not believe our decision “will stunt the development of constitutional doctrine in this area,” post, at 709 (Marshall, J., dissenting). Indeed, the Court’s suggestion that today’s decision is largely consistent with the approach taken by the lower courts, ante, at 696, simply indicates that those courts may continue to develop governing principles on a case-by-case basis in the common-law tradition, as they have in the past. Similarly, the prejudice standard announced today does not erect an insurmountable obstacle to meritorious claims, but rather simply requires courts carefully to examine trial records in light of both the nature and seriousness of counsel’s errors and their effect in the particular circumstances of the case. Ante, at 695.²

HH I — H

Because of their flexibility and the requirement that they be considered in light of the particular circumstances of the case, the standards announced today can and should be applied with concern for the special considerations that must attend review of counsel’s performance in a capital sentencing proceeding. In contrast to a case in which a finding of ineffective assistance requires a new trial, a conclusion that counsel was ineffective with respect to only the penalty phase of a capital trial imposes on the State the far lesser burden of reconsideration of the sentence alone. On the other hand, the consequences to the defendant of incompetent assistance at a capital sentencing could not, of course, be greater. Recognizing the unique seriousness of such a proceeding, we have repeatedly emphasized that “‘where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.’” Zant v. Stephens, 462 U. S. 862, 874 (1983) (quoting Gregg v. Georgia, 428 U. S., at 188-189 (opinion of Stewart, Powell, and Stevens, JJ.)).

For that reason, we have consistently required that capital proceedings be policed at all stages by an especially vigilant concern for procedural fairness and for the accuracy of fact-finding. As Justice Marshall emphasized last Term:

“This Court has always insisted that the need for procedural safeguards is particularly great where life is at stake. Long before the Court established the right to counsel in all felony cases, Gideon v. Wainwright, 372 U. S. 336 (1963), it recognized that right in capital cases, Powell v. Alabama, 287 U. S. 45, 71-72 (1932). Time and again the Court has condemned procedures in capital cases that might be completely acceptable in an ordinary case. See, e. g., Bullington v. Missouri, 451 U. S. 430 (1981); Beck v. Alabama, 447 U. S. 625 (1980); Green v. Georgia, 442 U. S. 95 (1979) (per curiam); Lockett v. Ohio, 438 U. S. 586 (1978); Gardner v. Florida, 430 U. S. 349 (1977); Woodson v. North Carolina, 428 U. S. 280 (1976). . . .

“Because of th[e] basic difference between the death penalty and all other punishments, this Court has consistently recognized that there is ‘a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.’ Ibid” Barefoot v. Estelle, 463 U. S. 880, 913-914 (1983) (dissenting opinion).

See also id., at 924 (Blackmun, J., dissenting). In short, this Court has taken special care to minimize the possibility that death sentences are “imposed out of whim, passion, prejudice, or mistake.” Eddings v. Oklahoma, 455 U. S. 104, 118 (1982) (O’Connor, J., concurring).

In the sentencing phase of a capital case, “[w]hat is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.” Jurek v. Texas, 428 U. S. 262, 276 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). For that reason, we have repeatedly insisted that “the sentencer in capital cases must be permitted to consider any relevant mitigating factor.” Eddings v. Oklahoma, 455 U. S., at 112. In fact, as Justice O’Connor has noted, a sentencing judge’s failure to consider relevant aspects of a defendant’s character and background creates such an unacceptable risk that the death penalty was unconstitutionally imposed that, even in cases where the matter was not raised below, the “interests of justice” may impose on reviewing courts “a duty to remand [the] case for resentencing.” Id., at 117, n., and 119 (O’Connor, J., concurring).

Of course, “[t]he right to present, and to have the sen-tencer consider, any and all mitigating evidence means little if defense counsel fails to look for mitigating evidence or fails to present a case in mitigation at the capital sentencing hearing.” Comment, 83 Colum. L. Rev. 1544, 1549 (1983). See, e. g., Burger v. Zant, 718 F. 2d 979 (CA11 1983) (defendant, 17 years old at time of crime, sentenced to death after counsel failed to present any evidence in mitigation), stay granted, post, at 902. Accordingly, counsel’s general duty to investigate, ante, at 690, takes on supreme importance to a defendant in the context of developing mitigating evidence to present to a judge or jury considering the sentence of death; claims of ineffective assistance in the performance of that duty should therefore be considered with commensurate care.

That the Court rejects the ineffective-assistance claim in this case should not, of course, be understood to reflect any diminution in commitment to the principle that “ ‘the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.’” Eddings v. Oklahoma, supra, at 112 (quoting Woodson v. North Carolina, 428 U. S. 280, 304 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). I am satisfied that the standards announced today will go far towards assisting lower federal courts and state courts in discharging their constitutional duty to ensure that every criminal defendant receives the effective assistance of counsel guaranteed by the Sixth Amendment.

1 The Court’s judgment leaves standing another in an increasing number of capital sentences purportedly imposed in compliance with the procedural standards developed in cases beginning with Gregg v. Georgia, 428 U. S. 158 (1976). Earlier this Term, I reiterated my view that these procedural requirements have proven unequal to the task of eliminating the irrationality that necessarily attends decisions by juries, trial judges, and appellate courts whether to take or spare human life. Pulley v. Harris, 465 U. S. 37, 59 (1984) (Brennan, J., dissenting). The inherent difficulty in imposing the ultimate sanction consistent with the rule of law, see Furman v. Georgia, 408 U. S. 238, 274-277 (1972) (Brennan, J., concurring); McGautha v. California, 402 U. S. 183, 248-312 (1971) (Brennan, J., dissenting), is confirmed by the extraordinary pressure put on our own deliberations in recent months by the growing number of applications to stay executions. See Wainwright v. Adams, post, at 965 (Marshall, J., dissenting) (stating that “haste and confusion surrounding . . . decision [to vacate stay] is degrading to our role as judges”); Autry v. McKaskle, 465 U. S. 1085 (1984) (Marshall, J., dissenting) (criticizing Court for “dramatically expediting its normal deliberative processes to clear the way for an impending execution”); Stephens v. Kemp, 464 U. S. 1027, 1032 (1983) (Powell, J., dissenting) (contending that procedures by which stay applications are considered “undermines public confidence in the courts and in the laws we are required to follow”); Sullivan v. Wainwright, 464 U. S. 109, 112 (1983) (Burger, C. J., concurring) (accusing lawyers seeking review of their client’s death sentences of turning “the administration of justice into [a] sporting contest”); Autry v. Estelle, 464 U. S. 1, 6 (1983) (Stevens, J., dissenting) (suggesting that Court’s practice in reviewing applications in death cases “injects uncertainty and disparity into the review procedure, adds to the burdens of counsel, distorts the deliberative process within this Court, and increases the risk of error”). It is difficult to believe that the decision whether to put an individual to death generates any less emotional pressure among juries, trial judges, and appellate courts than it does among Members of this Court.

2 Indeed, counsel’s incompetence can be so serious that it rises to the level of a constructive denial of counsel which can constitute constitutional error without any showing of prejudice. See Cronic, ante, at 659-660; Javor v. United States, 724 F. 2d 831, 834 (CA9 1984) (“Prejudice is inherent in this case because unconscious or sleeping counsel is equivalent to no counsel at all”).