Ineffective Assistance of Counsel at Sentencing

ineffective assistance of counsel
The American Bar Association’s “Criminal Justice Standards for the Defense Function” (4th ed.) strongly suggest that failure to research and cite favorable sentencing statistics may constitute ineffective assistance of counsel.  In the seminal case of Strickland v. Washington, 466 U.S. 668 (1984), the U.S. Supreme Court observed that “prevailing norms of practice as reflected in the American Bar Association standards . . . are guides to determining what is reasonable” for purposes of establishing whether counsel was constitutionally defective.

Standard 4-1.1(b) thus provides that these Standards “may be relevant in judicial evaluation of constitutional claims regarding the right to counsel.” (Emphasis added).  As part of counsel’s general duty to investigate, Standard 4-4.1(d) provides “Defense counsel should determine whether the client’s interests would be served by engaging fact investigators, forensic, accounting or other experts, or other professional witnesses such as sentencing specialists or social workers, and if so, consider, in consultation with the client, whether to engage them. Counsel should regularly re-evaluate the need for such services throughout the representation.”  (Emphasis added).

Standard 4-8.3 expressly applies to “Sentencing.”  Subsection (a) provides that “[e]arly in the representation, and throughout the pendency of the case, defense counsel should consider potential issues that might affect sentencing. . . .  Defense counsel should also consider whether consultation with an expert specializing in sentencing options or other sentencing issues is appropriate.” (Emphasis added).  Subsection (b) then provides that “Defense counsel’s preparation before sentencing should include learning the court’s practices in exercising sentencing discretion; the collateral consequences of different sentences; and the normal pattern of sentences for the offense involved, including any guidelines applicable for . . . sentencing.” (Emphasis added).

Generalized statistics are available from the U.S. Sentencing Commission at no cost to the public.  Particularized statistics and analysis, which are most useful and effective for competent representation, and which are based on the same datafiles used by the U.S. Sentencing Commission, can be easily accessed at

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Mark Allenbaugh is co-founder of Sentencing Stats. He is a former staff attorney for the U.S. Sentencing Commission, and a co-editor of "Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice" (2nd ed., Foundation Press, 2002).

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