The Anders brief in appeals from civil commitment.

• Author: Frueh, Joseph

NOTE CONTENTS

INTRODUCTION

1. CIVIL COMMITMENT AND ANDERS: A DOCTRINAL SYNTHESIS A. Physical Liberty as the Touchstone of the Right to Counsel B. Counsel in Civil-Commitment Appeals: Cutting Anchor with the Sixth Amendment C. A Right to Effective Advocacy in Civil-Commitment Appeals II. WHY DENY ANDERS IN CIVIL COMMITMENT? EVALUATING STATE COURT DECISIONS A. In re Richard A. B. In re Leon G. C. In re Conservatorship of Ben C. III. POLICY JUSTIFICATIONS FOR ANDERS PROCEDURES IN CIVIL-COMMITMENT APPEALS A. Institutional Barriers in Civil-Commitment Proceedings B. The Problem of "Rolelessness" 1. Sources and Symptoms of Rolelessness 2. Anders as Therapeutic Jurisprudence C. The Persistence of Pretext: Circumventing the Anders Requirement D. Anders and Excessive Adversarialism CONCLUSION

   Much Madness is divinest Sense-- To a discerning Eye-- Much Sense--the starkest Madness-- 'Tis the Majority In this, as All, prevail-- Assent--and you are sane-- Demur--you're straightway dangerous-- And handled with a Chain-- --Emily Dickinson (1) INTRODUCTION

   Since the deinstitutionalization movement of the 1980s, the practice of civil commitment has declined substantially in terms of both public visibility and duration of confinement. (2) Nonetheless, some commentators posit that current civil-commitment law may affect more individuals now than fifty years ago, as statistics often fail to note that short-term confinement with forced administration of psychotropic medication has replaced the long-term warehousing of patients as the practice of choice. (3) Moreover, while the average duration of civil commitment has declined, the resulting social stigma and legal consequences remain extensive. (4) These consequences include losing the rights to vote, (5) practice a profession, (6) or have custody of one's children. (7) Hence, the substantive and procedural components of civil-commitment law continue to markedly affect the lives of many Americans, and given that these individuals also constitute a particularly vulnerable and underserved group in society, the standards by which the state effects a "massive curtailment" (8) of their liberties remain deeply reflective of the public's values, priorities, and social conceptions.

   Currently, state statutes provide many of the same procedural protections in civil-commitment hearings as in criminal proceedings, such as personal notice and a full adversarial hearing, which includes the rights to be present at the hearing, to examine witnesses, and to be represented by an attorney. (9) A majority of states also provide respondents with the right to a jury. (10) Of these procedural rights, the right to counsel has been the most crucial; since the various rights guaranteed by statute are not self-executing, the careful monitoring of appointed counsel is essential to their enforcement. (11) Hence, the quality of counsel--not merely the right itself--is highly determinative of the fairness of the civil-commitment hearing. (12)

   Unfortunately, commentators are reluctant to associate any notion of fairness with civil-commitment hearings and often ascribe blame to the quality of appointed counsel. Civil-commitment attorneys have been described as "reticent, ineffective, ill-prepared, mostly silent, lacking interest, rarely extending any effort, giving only perfunctory representation, doing little or nothing to obtain a client's release and seldom challenging adverse statements by witnesses or adverse psychiatric testimony." (13) Ultimately, some have concluded that the poor performance of counsel typically renders the protections of an adversarial proceeding "more illusory than real." (14)

   In both the civil-commitment and criminal contexts, ensuring the effective assistance of appointed counsel remains elusive. Public defenders' offices, which often provide appointed counsel in both types of proceedings, are notoriously overworked and often lack adequate funding. (15) Moreover, in the civil-commitment context, appointed counsel often lack sufficient expertise in mental-health law and psychiatry to properly serve their clients. (16) Other institutional barriers, such as the inability to contact one's client or receive sufficient time to interview experts, also diminish the effectiveness of civil-commitment counsel. (17) To make matters worse, since the standard of ineffective assistance of counsel in both criminal and civil-commitment cases is rather deferential under Strickland v. Washington, (18) clients often have no remedy when their appointed attorneys fail as advocates.

   One of the few means to ensure the effective assistance of counsel in criminal appeals is the Anders procedure, as prescribed by the Supreme Court in Anders v. California. (19) In Anders, the Court sought to prevent appointed counsel from abandoning their clients after trial, asserting that the "constitutional requirement of substantial equality and fair process" can only be obtained "where counsel acts in the role of an active advocate in behalf of his client." (20) Although professional ethics require an attorney to withdraw from "frivolous" appeals, (21) Anders also requires that a request to withdraw be accompanied by "a brief referring to anything in the record that might arguably support the appeal." (22) After the attorney provides a copy of the brief to the defendant, the appellate court examines all of the proceedings and determines whether an appeal would be "wholly frivolous." (23) If the court agrees with counsel's assessment, it grants permission to withdraw. (24) Otherwise, any arguable points entitle the defendant to pursue an appeal with the aid of appointed counsel. (25)

   The Supreme Court has not determined whether the Anders procedure applies to appeals from civil commitment, but several state supreme courts have recently held that the procedure is not required in that context. (26) In so holding, these courts primarily rely on the assumption that Anders derives from the Sixth Amendment. Since the Sixth Amendment right to counsel applies to criminal cases rather than "civil" commitment, they conclude that the Anders procedure is not constitutionally required. Thus, if the relevant state statute does not provide for the procedure, appointed counsel are free to abandon their clients' "frivolous" appeals without any court oversight.

   This Note advances a two-pronged argument to require Anders procedures in appeals from civil commitment. The first argues in constitutional terms, taking issue with the narrow circumscription of the right to counsel. A doctrinal synthesis of Supreme Court case law reveals that unlike some procedural protections, such as the Double Jeopardy Clause and the "beyond-a-reasonable-doubt" standard of proof, the right to appointed counsel has a tenuous relationship with notions of criminality. Instead, the right to appointed counsel bears a well-developed association with the deprivation of physical liberty--an aspect shared by both criminal and civil-commitment proceedings. Part I unpacks this doctrinal synthesis and carries it through to the appellate level, revealing a persuasive constitutional basis for requiring Anders in appeals from civil commitment that hinges on the Fourteenth Amendment rather than the Sixth Amendment. Part II proceeds to contrast this argument with recent state court decisions that refused to extend Anders to the civil-commitment context and demonstrates how their reasoning appears comparatively less satisfying.

   Part III offers the second prong--a policy argument for requiring Anders in appeals from civil commitment. Specifically, Part III proposes that Anders would further the norms of "therapeutic jurisprudence" by enhancing respondents' "perceptions of fairness, participation, and dignity." (27) This argument begins by acknowledging the cognitive dissonance or "rolelessness" of civil-commitment attorneys, often torn between the traditional role of zealous advocate and the desire to remain passive when commitment seems to be in their clients' "best interests." As a result, many attorneys engage in "role-shifts" or "work-arounds," occasionally ignoring procedural violations or evidentiary burdens because they believe that their clients should be committed, despite or absent their clients' expressed wishes. Granted, some of these tactics may produce just or therapeutic outcomes; however, the subversive nature of this practice degrades the dignity of respondents and may exacerbate feelings of helplessness or persecution. In a subtle way, Anders may help to correct this practice by introducing a form of appellate scrutiny that would emphasize the formal impermissibility of role-shifts and work-arounds.

1. CIVIL COMMITMENT AND ANDERS: A DOCTRINAL SYNTHESIS

   The right to Anders procedures in the civil-commitment context derives from a synthesis of case law relating to the right to appointed counsel; hence, it seems appropriate to begin with the Sixth Amendment--the only text of the Constitution to mention counsel. As originally conceived, the Sixth Amendment provided federal criminal defendants with the privilege to obtain counsel, rather than requiring the appointment of counsel. (28) From that early understanding, the Supreme Court has greatly expanded the applicability and content of the constitutional guarantee of appointed counsel. The following Sections detail this transformation and demonstrate how these precedents may be interpreted to support the following propositions: (1) the Constitution guarantees appointed counsel outside of the criminal context, including civil-commitment proceedings; (2) this guarantee extends to first appeals of right from civil commitment; and (3) the content of this right includes the effective assistance of counsel on appeal, which in turn requires the Anders procedure.

   1. Physical Liberty as the Touchstone of the Right to Counsel

      The conception of the right to counsel as a "privilege" rather than a right was finally...