Defense attorneys are not immune to racism, and a defense attorney who holds racist beliefs about their client’s race fundamentally calls into question the representation received.  Under the Sixth Amendment, all criminal defendants have the right to the effective assistance of counsel.  To prevail on an ineffective assistance of counsel claim, the U.S. Supreme Court held in Strickland v. Washington that a criminal defendant must prove that their counsel’s performance was deficient and that the deficiency prejudiced the defense.  The Supreme Court supplemented the Strickland standard in Cuyler v. Sullivan and United States v. Cronic, holding that a conflict of interest that adversely affects the representation received or a denial of counsel will satisfy the Strickland prejudice prong.

Criminal defendants with racist counsel often have difficulty proving that their counsel’s racism prejudiced their defense under Strickland, particularly when there is not a direct connection between the racism and the defendant.  This challenge creates a gap in protection for criminal defendants with racist defense attorneys under the Strickland standard.  Since racism should not be tolerated in any form, this Note argues that courts should utilize the Sullivan standard when analyzing ineffective assistance of counsel claims of racist defense attorneys, as a defense attorney who is racist toward their client’s racial group is conflicted.  However, this Note deviates from the Sullivan standard by arguing that criminal defendants should not have to prove Sullivan prejudice—how the attorney’s racism adversely affected the representation.  Instead, courts should view a defense attorney who harbors racist beliefs about their client’s race as having an inherently prejudicial conflict of interest, warranting a new trial in accordance with the guarantees of the Sixth Amendment.