This Article explores a new way of determining ineffective assistance of counsel. Under existing law, a defendant must show that (1) counsel’s performance was deficient, and (2) such deficiency resulted in prejudice. Although the right to counsel is a foundational guarantee in criminal proceedings, the ineffectiveness standard fails to adequately protect defendants against poor representation. Given the pervasive racial disparities throughout the criminal legal system, this failure falls heaviest on Black defendants. 

Other criminal law scholars have recognized that the prejudice requirement thwarts defendants’ vindication of their right to counsel. But this Article recognizes that a particular harm of the standard’s prejudice requirement is that it thwarts Reconstruction’s goal of ensuring fair criminal proceedings for Black people. 

In constructing a new standard, this Article turns toward Reconstruction. Among broader objectives, the architects of Reconstruction intended to protect the rights of Black people in criminal proceedings. This is evidenced in the history and text of the Reconstruction Amendments, which contain clauses specifying the need for “due process,” “equal protection of the laws,” and limiting punishment to those who have been “duly convicted.” Rooted in Reconstruction, the new ineffectiveness standard removes a barrier to relief: the prejudice requirement. Instead, defendants would need only to demonstrate that counsel’s conduct was deficient relative to prevailing professional norms and considering the circumstances of the case. 

Ineffective assistance of counsel is a racial justice problem, and the current ineffectiveness standard is part of that problem. The current standard directly contravenes the commitments Congress made during Reconstruction. This Article engages the history, text, and spirit of Reconstruction to advance a racial justice solution to a problem that has frustrated the rights of all defendants.