Gideon v. Wainwright is arguably the most significant criminal justice decision in American history. Gideon’s recognition of indigent criminal defendants’ right to publicly funded counsel had an immediate and enormous impact on the fate of defendants nationwide. Despite the widely acknowledged problems with providing adequate representation in the years since Gideon, succeeding on ineffective assistance of counsel claims has proved close to impossible under the Supreme Court’s holding in Strickland v. Washington. Particularly problematic is the Strickland requirement of proving a negative—a reasonable probability that the outcome of a criminal trial would have been different but for the ineffective assistance.
This Article argues that the Court’s review of serious ineffective assistance claims generally has been almost invisible. Exploring the possible reasons for the insufficiency of the Court’s involvement, it observes that many attorneys decline to petition for certiorari because of the difficulty of the Strickland standard. Finally, this Article proposes a solution to the pervasive problem of inadequate indigent defense: to ensure an appropriate and just application of Gideon, the Court must take seriously the requirement of effective assistance of counsel by finding Sixth Amendment violations beyond the narrow categories of capital and collateral consequences cases.