# Douglas v. California/Dissent Harlan

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Mr. Justice HARLAN, whom Mr. Justice STEWART joins, dissenting.
In holding that an indigent has an absolute right to appointed counsel on appeal of a state criminal conviction, the Court appears to rely both on the Equal Protection Clause and on the guarantees of fair procedure inherent in the Due Process Clause of the Fourteenth Amendment, with obvious emphasis on 'equal protection.' In my view the Equal Protection Clause is not apposite, and its application to cases like the present one can lead only to mischievous results. This case should be judged solely under the Due Process Clause, and I do not believe that the California procedure violates that provision.

## EQUAL PROTECTION.

To approach the present problem in terms of the Equal Protection Clause is, I submit, but to substitute resounding phrases for analysis. I dissented from this approach in Griffin v. Illinois, 351 U.S. 12, 29, 34-36, 76 S.Ct. 585, 595, 597-599, 100 L.Ed. 891, and I am constrained to dissent from the implicit extension of the equal protection approach here-to a case in which the State denies no one an appeal, but seeks only to keep within reasonable bounds the instances in which appellate counsel will be assigned to indigents.
The States, of course, are prohibited by the Equal Protection Clause from discriminating between 'rich' and 'poor' as such in the formulation and application of their laws. But it is a far different thing to suggest that this provision prevents the State from adopting a law of general applicability that may affect the poor more harshly than it does the rich, or, on the other hand, from making some effort to redress economic imbalances while not eliminating them entirely.
Every financial exaction which the State imposes on a uniform basis is more easily satisfied by the well-to-do than by the indigent. Yet I take it that no one would dispute the constitutional power of the State to levy a uniform sales tax, to charge tuition at a state university, to fix rates for the purchase of water from a municipal corporation, to impose a standard fine for criminal violations, or to establish minimum bail for various categories of offenses. Nor could it be contended that the State may not classify as crimes acts which the poor are more likely to commit than are the rich. And surely, there would be no basis for attacking a state law which provided benefits for the needy simply because those benefits fell short of the goods or services that others could purchase for themselves.
Laws such as these do not deny equal protection to the less fortunate for one essential reason: the Equal Protection Clause does not impose on the States 'an affirmative duty to lift the handicaps flowing from differences in economic circumstances.' To so construe it would be to read into the Constitution a philosophy of leveling that would be foreign to many of our basic concepts of the proper relations between government and society. The State may have a moral obligation to eliminate the evils of poverty, but it is not required by the Equal Protection Clause to give to some whatever others can afford.
Thus it should be apparent that the present case, as with Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, and Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, is not one properly regarded as arising under this clause. California does not discriminate between rich and poor in having a uniform policy permitting everyone to appeal and to retain counsel, and in having a separate rule dealing only with the standards for the appointment of counsel for those unable to retain their own attorneys. The sole classification established by this rule is between those cases that are believed to have merit and those regarded as frivolous. And, of course, no matter how far the state rule might go in providing counsel for indigents, it could never be expected to satisfy an affirmative duty-if one existed-to place the poor on the same level as those who can afford the best legal talent available.
Parenthetically, it should be noted that if the present problem may be viewed as one of equal protection, so may the question of the right to appointed counsel at trial, and the Court's analysis of that right in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, is wholly unnecessary. The short way to dispose of Gideon v. Wainwright, in other words, would be simply to say that the State deprives to indigent of equal protection whenever it fails to furnish him with legal services, and perhaps with other services as well, equivalent to those that the affluent defendant can obtain.
The real question in this case, I submit, and the only one that permits of satisfactory analysis, is whether or not the state rule, as applied in this case, is consistent with the requirements of fair procedure guaranteed by the Due Process Clause. Of course, in considering this question, it must not be lost sight of that the State's responsibility under the Due Process Clause is to provide justice for all. Refusal to furnish criminal indigents with some things, that others can afford may fall short of constitutional standards of fairness. The problem before us is whether this is such a case.

## DUE PROCESS.

It bears reiteration that California's procedure of screening its criminal appeals to determine whether or not counsel ought to be appointed denies to no one the right to appeal. This is not a case, like Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209, in which a court rule or statute bars all consideration of the merits of an appeal unless docketing fees are prepaid. Nor is it like Griffin v. Illinois, supra, in which the State conceded that 'petitioners needed a transcript in order to get adequate appellate review of their alleged trial errors.' 351 U.S., at 16, 76 S.Ct., at 589. Here it is this Court which finds, notwithstanding California's assertions to the contrary, that as a matter of constitutional law 'adequate appellate review' is impossible unless counsel has been appointed. And while Griffin left it open to the States to devise 'other means of affording adequate and effective appellate review to indigent defendants,' 351 U.S., at 20, 76 S.Ct., at 591, the present decision establishes what is seemingly an absolute rule under which the State may be left without any means of protecting itself against the employment of counsel in frivolous appeals.
It was precisely towards providing adequate appellate review as part of what the Court concedes to be 'California's forward treatment of indigents'-that the State formulated the system which the Court today strikes down. That system requires the state appellate courts to appoint counsel on appeal for any indigent defendant except 'if in their judgment such appointment would be of no value to either the defendant or the court.' People v. Hyde, 51 Cal.2d 152, 154, 331 P.2d 42, 43. This judgment can be reached only after an independent investigation of the trial record by the reviewing court. And even if counsel is denied, a full appeal on the merits is accorded to the indigent appellant, together with a statement of the reasons why counsel was not assigned. There is nothing in the present case, or in any other case that has been cited to us, to indicate that the system has resulted in injustice. Quite the contrary, there is every reason to believe that California appellate courts have made a painstaking effort to apply the rule fairly and to live up to the State Supreme Court's mandate. See, e.g., the discussion in People v. Vigil, 189 Cal.App.2d 478, 480-482, 11 Cal.Rptr. 319, 321-322.
We have today held that in a case such as the one before us, there is an absolute right to the services of counsel at trial. Gideon v. Wainwright, 372 U.S., p. 335, 83 S.Ct., p. 792. But the appellate procedures involved here stand on an entirely different constitutional footing. First, appellate review is in itself not required by the Fourteenth Amendment, McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867; see Griffin v. Illinois, supra, 351 U.S., at 18, 76 S.Ct., at 590, and thus the question presented is the narrow one whether the State's rules with respect to the appointment of counsel are so arbitrary or unreasonable, in the context of the particular appellate procedure that it has established, as to require their invalidation. Second, the kinds of questions that may arise on appeal are circumscribed by the record of the proceedings that led to the conviction; they do not encompass the large variety of tactical and strategic problems that must be resolved at the trial. Third, as California applies its rule, the indigent appellant receives the benefit of expert and conscientious legal appraisal of the merits of his case on the basis of the trial record, and whether or not he is assigned counsel, is guaranteed full consideration of his appeal. It would be painting with too broad a brush to conclude that under these circumstances an appeal is just like a trial.
What the Court finds constitutionally offensive in California's procedure bears a striking resemblance to the rules of this Court and many state courts of last resort on petitions for certiorari or for leave to appeal filed by indigent defendants pro se. Under the practice of this Court, only if it appears from the petition for certiorari that a case merits review is leave to proceed in forma pauperis granted, the case transferred to the Appellate Docket, and counsel appointed. Since our review is generally discretionary, and since we are often not even given the benefit of a record in the proceedings below, the disadvantages to the indigent petitioner might be regarded as more substantial than in California. But as conscientiously committed as this Court is to the great principle of 'Equal Justice Under Law,' it has never deemed itself constitutionally required to appoint counsel to assist in the preparation of each of the more than 1,000 pro se petitions for certiorari currently being filed each Term. We should know from our own experience that appellate courts generally go out of their way to give fair consideration to those who are unrepresented.
The Court distinguishes our review from the present case on the grounds that the California rule relates to 'the first appeal, granted as a matter of right.' Page 356. But I fail to see the significance of this difference. Surely, it cannot be contended that the requirements of fair procedure are exhausted once an indigent has been given one appellate review. Cf. Lane v. Brown, 372 U.S., p. 477, 83 S.Ct., p. 768. Nor can it well be suggested that having appointed counsel is more necessary to the fair administration of justice in an initial appeal taken as a matter of right, which the reviewing court on the full record has already determined to be frivolous, than in a petition asking a higher appellate court to exercise its discretion to consider what may be a substantial constitutional claim.
Further, there is no indication in this record, or in the state cases cited to us, that the California procedure differs in any material respect from the screening of appeals in federal criminal cases that is prescribed by 28 U.S.C. § 1915. As recently as last Term, in Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21, we had occasion to pass upon the application of this statute. Although that decision established stringent restrictions on the power of federal courts to reject an application for leave to appeal in forma pauperis, it nonetheless recognized that the federal courts could prevent the needless expenditure of public funds by summarily disposing of frivolous appeals. Indeed in some respects, California has outdone the federal system, since it provides a transcript and an appeal on the merits in all cases, no matter how frivolous.
I cannot agree that the Constitution prohibits a State in seeking to redress economic imbalances at its bar of justice and to provide indigents with full review, from taking reasonable steps to guard against needless expense. This is all that California has done. Accordingly, I would affirm the state judgment.

## Notes

1 The majority in Griffin appeared to rely, as here, on a blend of the Equal Protection and Due Process Clauses in arriving at the result. So far as the result in that case rested on due process grounds, I fully accept the authority of Griffin.
2 Griffin v. Illinois, supra, at 34, 76 S.Ct. at 598 (dissenting opinion of this writer).
3 California law provides that if counsel is appointed on appeal, the court shall fix a reasonable fee to be paid by the State. California Penal Code § 1241. It is of course clear that this Court may not require the State to compel its attorneys to donate their services.
4 Petitioners also contend that they were denied the effective assistance of counsel at trial. This claim, in my view, is without merit. A reading of the record leaves little doubt that petitioners' dismissal of their appointed counsel and their efforts to obtain a continuance were designed to delay the proceedings and, in all likelihood, to manufacture an appealable issue. Moreover, the trial court acted well within constitutional bounds in denying the claim that there was a conflict of interest between Douglas and Meyes that required a separate appointed attorney for each.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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