The Lemons Problem in Criminal Appeals: On the Pernicious Effects of Douglas v. California

Abstract

Douglas v. California holds that states that provide an appeal as a matter of right from a criminal conviction must provide appellate counsel to indigent defendants wishing to appeal. States don’t have to provide a right of appeal at all, but if they do they have to give indigent defendants a free lawyer. Combined with earlier cases, Douglas provides defendants a free option to appeal. Combined with counsel whose ideological commitments may cause them to raise some issue — any issue — that has the slightest chance of success, Douglas has created a pool of criminal appeals that judges tend to view with a deservedly skeptical eye. The free option it creates makes it hard for defendants with solid appellate claims to distinguish themselves from the large fraction of appeals raising unsound claims. The situation is partly analogous to the well-known “lemons” problem in economics. The rule against contingent criminal representation is flawed on its own terms, but it also forecloses the most rational solution to the lemons problem in criminal appeals. The rule against contingent criminal representation should be repealed. Appellate defense counsel should be paid a market hourly wage to review a file, but any actual merits briefing and argument should be done on a contingent fee basis, with the risk-adjusted fee award paid by the government.