Posted by: captainfalcon | April 19, 2014

Libertarian defense of the right to appellate counsel paid for by the state

In the United States, criminal defendants who cannot afford a lawyer have a constitutional right to competent counsel paid out of the public fisc. They have a constitutional right to free counsel during trial. They also have a constitutional right to free counsel on appeal. And, of course, they have a constitutional right to trial, and to an appeal.

The right to free counsel was recognized by the liberal wing of the Supreme Court and it is usually grounded in egalitarian considerations. Here, for example, is Justice Douglas in Douglas v. California, 372 U.S. 353, 357-58 (1963) recognizing the right to counsel on appeal: “There is lacking 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. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.”

Justice Douglas’s suggestion is that the rich criminal defendant enjoys an unfair advantage over the poor criminal defendant, and the poor criminal defendant thus labors under an undue disadvantage, if the rich criminal defendant has access to a lawyer on appeal, but the poor criminal defendant does not; accordingly, because this undue disadvantage offends against the Fourteenth Amendment, poor criminal defendants have a constitutional right to free appellate counsel.  I take it this argument should not be persuasive to a libertarian: the rich son enjoys an unfair advantage over the poor son in access to medicine, for example, but that does not justify paying for the poor son’s medicine from the public fisc.

But the right to free counsel can be defended on libertarian grounds. Libertarians accept that it is legitimate for the state to use tax money to prevent, redress (and maybe to punish) rights-violations. Wrongful adjudication — imposing criminal (or, for that matter, civil) burdens on the innocent — is a category of rights-violation.  If providing free counsel to the indigent will prevent or redress these rights-violations, it is presumably legitimate, under libertarianism, for the state to use tax money to pay for indigent counsel. And there is no a priori reason why the right to free counsel, thusly grounded, should not extend to the right to free counsel on appeal: free appellate counsel, indeed, serves the critical role of ensuring that lower courts do not systematically violate rights by misreading or distorting the (presumably well-designed) libertarian laws that ensure that redress is had against only those who violate rights.

This may be an obvious point, but I thought it was prima facie surprising that, even in a libertarian paradise, the Legal Aid Society would still enjoy its contract with the state to provide free legal services to indigents.


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