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"Scarcity is a central fact of the human condition and the starting point for economic analysis. 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." Pritchard, Auctioning Justice: Legal and Market Mechanisms for Allocating Criminal Appellate Counsel, 34 Am. Crim. L. Rev. 1161, 1161 (1997).
This Court's decisions reflect the importance of accommodating rights to limited resources. The body of habeas corpus jurisprudence contains many references to prevent the waste of "scarce judicial resources" by limiting unnecessary litigation on habeas. See, e.g., Keeney v. Tamayo-Reyes, 504 U. S. 1, 7 (1992); McCleskey v. Zant, 499 U. S. 467, 491 (1991).
Habeas is not the only field in which this Court seeks to conserve scarce resources. It has strengthened the government's ability to enter and enforce plea bargains in part because these agreements allow "[j]udges and prosecutors to conserve vital and scarce resources." Blackledge v. Allison, 431 U. S. 63, 71 (1977). This Court takes a similarly practical approach to interlocutory appeals. It will not allow such appeals for the sole reason of correcting erroneous decisions, as doing so "would constitute an unjustified waste of scarce judicial resources." Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 378 (1981). Another example of the need to conserve judicial resources is found in a prisoner rights case, Sandin v. Conner, 515 U. S. 472 (1995). Among the reasons the Sandin Court chose to abandon the broad definition of state-created liberty interests announced in Hewitt v. Helms, 459 U. S. 460 (1983), was the fact that "the Hewitt approach has led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone." 515 U. S., at 482.
This Court has good reason to concern itself with wasting resources. While no institution is free of the constraints posed by a world of necessarily limited resources, the judiciary is particularly vulnerable. As an institution, the judiciary comes by its decisions very expensively. The rules and formalities that give courts their evenhandedness also make them very expensive when compared to other institutions, such as the market or the political process. See N. Komesar, Imperfect Alternatives 125 (1994). Inevitably, some decisions are kept from the courts because they are too costly to litigate. Id., at 125-128.
The problem of cost is likely to worsen over time. Although precise estimates of the cost of judicial services are difficult, it is likely that the judiciary suffers from "cost disease." See Peacock, Cost of Judicial Services, in The New Palsgrave Dictionary of Economics and the Law 530, 531 (P. Newman ed. 1998).
"A well-known hypothesis . . . suggests that in the case of government provision of law and order, health and education, personal services are an integral part of output and this will limit the substitution of capital for labour. It seems inconceivable that judges trying cases or lawyers representing clients could be replaced by interacting computers which could produce justice, and in any event the quality of the service is perceived to be uniquely correlated with personal service. At the same time, the price of the labour services used in the provision of justice will depend on the value of these services in the economy as a whole. Judges and legal staff receive emoluments and status comparable with those which they would otherwise obtain as professional or corporate lawyers or in other professions where their skills and experience could be employed. It follows that as an economy grows and real wages increase, increases in costs per unit in, say, manufacturing output, will be offset by increases in productivity per head resulting from process innovations, whereas costs to secure judicial output are bound to rise, even if no extra inputs are required. If the growth in the economy is accompanied as already indicated, by an increase in the demand for the resolution of disputes and the growth in recorded crime and associated demand for criminal proceedings, then expenditure on judicial services, in common with other forms of government expenditure embodying personal services, must have a tendency to rise at a faster rate of growth than national expenditure." Ibid. (citation omitted).
In practical terms, this means that the problem of overcrowded courts is not going away. Although demand for judicial services may consistently outstrip legal productivity, society will not devote an ever larger share of the economy to the law. In the end, some disputes will not make it to the courthouse. Any effort to make the legal system less wasteful can thus reap considerable rewards both economically and as a matter of justice.
Appellate courts are a particularly critical bottleneck. The hierarchical structure of appellate courts limits their physical capacity to resolve disputes. The apex, of each jurisdiction's system, this Court and the highest court of each state, has a fixed capacity to decide cases.
"The most obvious reform, increasing the number of judges on these high courts, does not easily or even necessarily increase the output of this court. While an increase in judges would decrease the per judge load of opinion writing, it would not decrease the time and effort necessary to reach a collective decision by this body. In fact, increasing the numbers would probably make such collective decisions more difficult and time consuming." Komesar, supra, at 144-145.
Increasing the size of the intermediate appellate courts is little better, as larger courts will inevitably create more conflicts that must be resolved by the Supreme Court. See id., at 145. Thus "the main bottleneck [to the capacity of the judiciary]--is the appellate court system." Id., at 144.
Checking frivolous appeals is one of the most efficient, least costly means for the judiciary to deal with its limited resources. A litigant who loses a frivolous claim loses nothing. See Lewis v. Casey, 518 U. S. 343, 353, n. 3 (1996). Nor does counsel have either the duty or the right to present frivolous claims. United States v. Edwards, 777 F. 2d 364, 365 (CA7 1985) (per curiam). Courts also have no interest in dealing with claims that never should have been made. For every frivolous claim that is disposed of efficiently, attorney and judicial resources can be freed to deal with more worthy disputes. Discouraging frivolous appeals thus "furthers the State's interest in conserving judicial resources." See Bankers Life & Casualty Co. v. Crenshaw, 486 U. S. 71, 81-82 (1988).
Unfortunately, the decisions providing representation for indigent defendants for their first appeal makes frivolous appeals much more likely in these cases. The constitutionally necessary subsidy of Douglas v. California, 372 U. S. 353 (1963) and the other indigent appeal cases remove any incentive for an indigent defendant to forego a frivolous appeal, making the demand to pursue even the most unworthy appeal a rational choice for the indigent defendant. See Pritchard, supra, 34 Am. Crim. L. Rev., at 1167; Pengilly, Never Cry Anders: The Ethical Dilemma of Counsel Appointed to Pursue a Frivolous Criminal Appeal, 9 Crim. Just. J. 45, 46 (1986); C. Wolfram, Modern Legal Ethics 817 (1986). A similar problem afflicts this Court's pro se petitions.
"But paupers filing pro se petitions are not subject to the financial considerations--filing fees and attorney's fees--that deter other litigants from filing frivolous petitions. Every paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution's limited resources. A part of the Court's responsibility is to see that these resources are allocated in a way that promotes the interests of justice. The continual processing of petitioner's frivolous requests for extraordinary writs does not promote the end." In re McDonald, 489 U. S. 180, 184 (1989) (per curiam).
The fact that Congress and the states are effectively compelled to provide resources for defendant's first appeal does not avoid the high costs of frivolous indigent appeals. "[J]udicial fiat cannot cure scarcity; it merely disguises the symptoms of the disease." Pritchard, supra, 34 Am. Crim. L. Rev., at 1162. Justice is not immune from economic realities.
"In ethical and legal discussion, 'justice' in adjudication is sometimes spoken of as though it were an impalpable or an absolute. In operational terms, which is to say economic terms, it is surely not. In the doing of justice, as elsewhere, what can be obtained is limited by what can be funded. And if it is true that no amount of money can buy perfect juridical insight, it is clear enough that approximations of perfection in an organized social structure are possible only with substantial expenditure. Hence, all decisions about the measure of justice that should be accorded in the system are also decisions about public expenditure." Hazard, Rationing Justice, 8 J. L. & Econ. 1, 4 (1965).
Resources spent on indigent appeals must come from somewhere.
"[D]ecisions about the desired level of service in the public welfare program of administered justice are economically competitive with decisions to engage in other types of programs . . . . Hence, administered justice is a commodity for which differential preference has to be established by comparison with other possibilities." Ibid.
Because each extra indigent appeal will come at the expense of some other public good such as education, health, or defense, it is unrealistic to expect states or Congress to provide indigent criminal appellants with a level of funding that will give them some "perfect justice."
The resource limits on indigent appeals places most of the burden of frivolous appeals on indigent defendants with potentially valid appeals. If counsel for indigent defendants spend too much time on frivolous appeals "the people who will suffer the most are the indigent prisoners who have been unjustly convicted; they will languish in prison while lawyers devote time and energy to hopeless causes on a first come-first served basis." Doherty, Wolf! Wolf!--The Ramification of Frivolous Appeals, 59 J. Crim. L., Criminology & Police Sci. 1, 2 (1968) (emphasis in original).
Frivolous appeals harm those with valid claims even after briefs are filed. Every frivolous appeal reviewed by an appellate court further delays vindication for the improperly convicted defendant. Furthermore, these unnecessary cases harm other defendants in a more insidious way. There is an unavoidable cost to crying wolf; if counsel for indigent defendants are forced to press frivolous appeals, then counsel's credibility before the intermediate appellate courts will diminish, harming those indigent defendants with potentially meritorious claims. See ibid; Hermann, Frivolous Criminal Appeals, 47 N. Y. U. L. Rev. 701, 703 (1972).
Justice Jackson noted the problem of the many bad claims driving out the few good ones in the context of habeas corpus:
"It must prejudice the occasional meritorious application to be buried in a flood of worthless ones. He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search." Brown v. Allen, 344 U. S. 443, 537 (1953) (opinion concurring in result).
Improperly convicted defendants are not the only victims of frivolous appeals. Some prosecutorial resources will be wasted in dealing with frivolous claims. More importantly, judicial resources spent on frivolous cases will be diverted from all appeals, including civil and nonindigent criminal cases, delaying justice for every litigant and contributing to the ever-increasing strain on the judiciary's resources.
Unfortunately, the problem with frivolous indigent criminal appeals is significant.
"A significant amount of appellate judges' time is spent in reading two or more briefs, exchanging memoranda and perhaps writing an opinion in criminal cases which plainly lack any basis for reversal. Especially with regard to the federal appellate bench, it may fairly be said that most judges find the task at best bothersome and at worst infuriating."
Hermann, supra, 47 N. Y. U. L. Rev., at 702 (footnotes omitted); see also Pritchard, supra, 34 Am. Crim. L. Rev., at 1168-1169 (Anders has "driven the courts to judicial triage" leading fully briefed appeals to get less than complete attention); Warner, Anders in the Fifty States: Some Appellants' Equal Protection is More Equal Than Others', 23 Fla. St. U. L. Rev. 625, 625 (1996) (finding dealing with Anders briefs "[a] continuing source of frustration for the appellate judge").
The problem of frivolous appeals can be addressed by checking the indigent defendant's unconstrained interest in prosecuting all possible appeals without regard to their merit. Appointed counsel is the most logical choice to act as a gatekeeper. Unlike the client, counsel has an ethical duty to keep frivolous appeals out of the courts. See, e.g., ABA Model Rules of Professional Conduct, Rule 3.1 (1992); ABA Model Code of Professional Responsibility, DR 7-102(A)(2), EC 7-4 (1983); Anders v. California, 386 U. S. 738, 744 (1967). Separating the potentially meritorious wheat from the frivolous chaff is appellate counsel's job. See Huguley v. State, 324 S. E. 2d 729, 731 (Ga. 1985).
Anders too often prevents defense counsel from fulfilling this necessary role. As amicus will demonstrate, this decision places unreasonable ethical burdens on counsel, needlessly deterring them from acting as the gatekeeper against frivolous claims.
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