Auctioning justice: legal and market mechanisms for allocating criminal appellate counsel.

• Author: Pritchard, A.C.

1. Introduction

   Scarcity is a central fact of the human condition(1) and the starting point for economic analysis.(2) Legal services, like other goods, are affected by scarcity. The time of lawyers, judges, and court personnel is not unlimited, and society must determine how to allocate this good. In Gideon v. Wainwright,(3) the Supreme Court adopted a rule requiring that all criminal defendants must be represented at trial by an attomey at the taxpayers' expense, if necessary.(4) On the same day that the Court handed down Gideon, it also announced a rule in Douglas v. California(5) that all indigent criminal defendants be provided counsel on their first appeal as of right.(6) With these decisions, the Court attempted to cure the most debilitating disease afflicting the criminal justice system: the scarcity of counsel facing the indigent criminal defendant.

   This Article, however, begins with the premise that judicial fiat cannot cure scarcity; it merely disguises the symptoms of the disease. Legal services remain scarce notwithstanding rules purporting to guarantee their provision.(7) Recognizing the inevitability of scarcity, I offer here a more rational method of allocating legal services on appeal.(8) Specifically, I propose a market approach for allocating the services of appellate counsel to indigent criminal defendants: a contingent fee auction.

   In Section II, I argue that the Douglas rule allocates scarce legal resources inefficiently by failing to distinguish meritorious from unmeritorious appeals. Under Douglas, frivolous and meritorious appeals are entitled to an equal share of legal and judicial attention. As a result, scarce resources are devoted to appeals that are doomed to fail. Wasting legal resources benefits neither criminal defendants as a class nor society as a whole.

   In Section III, I propose a market system for allocating appellate counsel to indigent criminal defendants through a system of contingent bids. In a market system, appellate attorneys would bid for the opportunity to represent criminal defendants, with the appeal going to the lowest bidder. The state would pay the attorney her bid, but only if she wins the appeal for her client. As a Consequence, lawyers would ignore weak claims and compete for the appeals most likely to succeed. The market, therefore, would allocate the largest share of legal resources to those criminal defendants with the most meritorious claims. Such a market system also would align attorneys' interests with the interests of their clients, thereby ensuring that scarce resources committed to the representation of criminal defendants are not wastefully dissipated by agency costs. At the same time, attorneys -- by pursuing their own interests securing winning claims -- would screen unmeritorious claims from the appellate process, thus conserving judicial resources. The primary beneficiaries of this reallocation of resources would be wrongfully convicted defendants who would be assured that their appellate claims received the legal and judicial attention that they deserved.

   In Sections IV and V, I discuss two potential objections to my proposal: the attorney ethics rules and the Constitution. I first discuss the ethical prohibition on contingent fees in criminal cases. I conclude that the rationales for the ethical prohibition -- whatever their merit in the trial context -- carry little weight in the appellate context; the ethical rules therefore should be amended to reflect the differences between trial and appeal. I then turn in Section V to constitional objections to my proposal. The Douglas rule does not follow from the requirements of the Sixth Amendment as announced in Gideon. Moreover, the justifications offered by the Supreme Court for the Douglas rule -- equal protection and due process -- are both consistent with a market system for allocating criminal appeals. Because the Constitution does not guarantee an appeal, defendants with meritless claims can be deprived of the right to appellate counsel without running foul of any constitutional limit.

   I conclude with some thoughts on the role of market forces in allocating legal resources. Justice, like other goods, is scarce.(9) By allocating that scarce good efficiently, market forces can help secure the largest possible benefit from a given investment in legal resources. Auctioning appeals to counsel promises to secure more justice for the wrongfully convicted.

2. The Judicial Rule

   1. The Douglas/Anders Rule

      The Constitution does not grant a criminal defendant the right to appeal his conviction.(10) Notwithstanding the lack of a constitutional right to appellate review, the Supreme Court, in a series of cases starting with Griffin v. Illinois,(11) struck down state laws that effectively "den[ied] ... appellate review to the poor while granting such review to all others."(12) The Illinois Supreme Court denied Griffin appellate review of his conviction because he could not afford the trial transcript required to file an appeal. The United States Supreme Court reversed. Justice Hugo Black, relying on the Equal Protection and Due Process Clauses, wrote for a plurality of the Court that "[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has. Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts."(13) The Court followed this reasoning in a number of subsequent cases, which continued Griffin's theme of removing wealth-based obstacles to appeal for criminal defendants.(14)

      In Douglas v. California,(15) the Court extended this rationale to guarantee indigent defendants state-funded counsel for their first appeal as of right. The California District Court of Appeal denied petitioner's requests for the appointment of counsel because its review of the record had shown that "no good whatever could be served by appointment of counsel."(16) The Supreme Court reversed, with Justice William O. Douglas writing for the Court. He reasoned that California's procedures lacked

      that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself.(17)

      Dissatisfied with California's "meaningless ritual" for indigent criminal defendants, the Court granted indigents the right to a lawyer at taxpayer expense, which it deemed necessary for a "meaningful appeal."(18)

      The Court extended the Douglas rule four years later Anders v. California.(19) Anders was convicted in a California court for possession of marijuana. He wished to appeal his conviction, but, "after a study of the record and consultation with petitioner, the appointed counsel concluded that there was no merit to the appeal."(20) After filing a "no-merit letter," counsel withdrew, and Anders proceeded with his appeal pro se. The appeal was denied.(21) After the state courts again denied relief on collateral review, the Supreme Court reversed. The Court found the no-merit letter insufficient to justify withdrawal by counsel. Instead, the Court held that a request by counsel to withdraw from a frivolous appeal must

      be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court -- not counsel -- then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.... [I]f it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.(22)

      The Court justified its holding by referring to the equal treatment mandate of Griffin and Douglas; this procedure was necessary to "assure penniless defendants the same rights and opportunities on appeal -- as nearly as is practicable -- as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel."(23)

   2. Criticisms of the Anders Rule

      Critics have disagreed with the conclusion that the Anders procedure equalizes rich and poor defendants, arguing that the rule places poor defendants in a better situation than those who are able to pay their attorneys.(24) Anders, "is predicated upon the inarticulated and false premise that private lawyers will undertake the appeal of any criminal conviction, even a frivolous one, so long as they are compensated."(25) In other words, Anders assumes that compensated counsel will ignore their ethical duty not to present frivolous arguments to the courts and, based on that assumption, requires that appointed counsel do the same for indigents.(26) "Equality" of representation takes precedence over the attorney's ethical obligations to the court.

      On its face, Anders does not require appointed counsel to present frivolous arguments.(27) As a practical matter, however, the brief required in order to withdraw will be nearly impossible to write.(28) Counsel must explain why her client's appeal is frivolous, while simultaneously pointing to all errors in the record possibly mandating reversal of her client's conviction. Rather than attempting the "schizophrenic" exercise necessary to withdraw, counsel simply to file a brief with frivolous arguments.(29) Judges, cognizant of the dilemma that Anders poses for appointed counsel, are understandably reluctant to sanction (or even scold) counsel for making frivolous arguments. The result of Anders is that a high percentage of criminal appeals are affirmed summarily.(30) The indigent criminal defendant has nothing to lose by appealing and no incentive to internalize the cost of either...