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III. Anders should be overruled or substantially modified.

While stare decisis is an important doctrine serving a useful social policy, it does not have the same force as a statute or the Constitution. The judiciary's role in our society is as an interpreter of laws. See The Federalist No. 78, at 467 (A. Hamilton) (Rossiter ed. 1961). Therefore, stare decisis, while respected, cannot deter this or any other court from its ultimate duty of interpreting the law. Stare decisis is the law's servant, not its master.

This Court has recognized that the doctrine does not have the force of a rule of law and may be overridden when appropriate. "Whether it [stare decisis] shall be followed or departed from is a question entirely within the discretion of the court . . . ." Hertz v. Woodman, 218 U. S. 205, 212 (1910). While it will be followed in most cases, this is simply "a policy judgment that 'in most matters it is more important that the applicable rule of law be settled than that it be settled right.' " Agostini v. Felton, 521 U. S. 203, 235 (1997) (quoting Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932) (Brandeis, J., dissenting)). Therefore, this Court has "treated stare decisis as a 'principle of policy,' Helvering v. Hallock, 309 U. S. 106, 119 (1940), and not as an 'inexorable command.' " Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 63 (1996) (quoting Payne v. Tennessee, 501 U. S. 808, 828 (1991)).

Perhaps the most important factor in limiting stare decisis is the ability of other bodies to overturn this Court's decisions. This Court is particularly reluctant to overturn its own statutory interpretations, because Congress "remains free to alter what [this Court has] done." Patterson v. McLean Credit Union, 491 U. S. 164, 172-173 (1989).

Constitutional cases are another matter. Because " 'correction through legislative action is practically impossible,' " constitutional cases are more prone to re-examination than statutory cases, Payne v. Tennessee, supra, 501 U. S., at 828 (quoting Burnet, supra, 285 U. S., at 407 (Brandeis, J., dissenting)). Given the necessary tension between our democratic ideals and judicial review under the Constitution, see Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693, 695-696 (1976), this Court must be ready to reexamine its constitutional decisions in order to maintain the democratic nature of our society.

Refusing to reexamine an incorrect opinion that the public cannot overturn is corrosive to this Court's public respect. Thus the decision to uphold the incorrectly decided line of cases under Lochner v. New York, 198 U. S. 45 (1905) until 1937 helped to damage this Court as a public institution. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 861-862 (1992). "Of course, it is embarrassing to confess a blunder; it may prove even more embarrassing to adhere to it." United States v. Bryan, 339 U. S. 323, 346 (1950) (Jackson, J., concurring).

This Court is also more willing to reexamine decisions that have developed contradictions over time. Thus, this Court will not allow stare decisis to preserve inconsistent or difficult to administer decisions. See Patterson, supra, 491 U. S., at 173. Similarly, if the conditions that motivated a decision change, then there is good reason to overrule the prior decision. See Casey, 505 U. S., at 855, 862.

The fact that stare decisis is not a " 'mechanical rule' " is demonstrated by the hierarchy within the doctrine. While some decisions are virtually etched in stone, others warrant more flexibility. For those cases less worthy of stare decisis, " 'the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.' " United States v. Scott, 437 U. S. 82, 101 (1978) (quoting Burnet, supra, 285 U. S., at 408 (Brandeis, J., dissenting)).

The most important consideration when examining the stare decisis value of a decision is the public's reliance interest in that precedent. Stare decisis benefits society and legal institutions "because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of judicial process." Payne, supra, 501 U. S., at 827. Where these interests are greater, stare decisis considerations are correspondingly more important. Thus, "stare decisis concerns are at their acme in cases involving property and contract rights." State Oil Co. v. Kahn, 522 U. S. 3, 20 (1997); Payne, supra, 501 U. S., at 828.

There is no reliance interest in Anders. Reliance is at its weakest in cases involving "procedural and evidentiary rules." Payne, supra, 501 U. S., at 828. Anders' particular lack of reliance interest can be seen by examining the analogous field of retroactive application of statutes.

The retroactive application of statutes is generally disfavored. See Landgraf v. USI Film Products, 511 U. S. 244, 268 (1994). However, when the statutory change effects a rule of procedure, then the change generally may be applied to a pending case because "they regulate secondary rather than primary conduct." Id., at 275. "Primary conduct" is the conduct of people in their ordinary course of life. In Landgraf, this was "the discriminatory conduct of respondent's agent . . . ." Id., at 283. In the present case, this would be Robbins' car theft and the killing of his former roommate.

The "secondary conduct" is the adjudication, in this case the defendant's trial. Decisions regarding trial procedures, such as evidence to be heard at sentencing, thus do not invoke the reliance interest warranting stare decisis protection. See Payne, supra, 501 U. S., at 828. The Anders procedure is even further removed from defendant's conduct. It is a "prophylactic framework," see Pennsylvania v. Finley, 481 U. S. 551, 555 (1987), that regulates appellate procedure, which is so far removed from defendant's initial conduct it could be deemed "tertiary conduct." No one regulates their affairs in reliance on Anders' rule of appellate procedure.

Another important consideration in deciding whether to uphold a decision is how well the precedent guides those who must apply it. A precedent that proves to be confusing and difficult to apply deserves much less stare decisis protection. See United States v. Dixon, 509 U. S. 688, 712 (1993). "[W]hen governing decisions are unworkable or are badly reasoned, 'this Court has never felt constrained to follow precedent.' " Payne, supra, 501 U. S., at 827 (quoting Smith v. Allwright, 321 U. S. 649, 665 (1944)).

Anders' intrinsic ethical conflict and the considerable difficulty with finding possibly arguable, but still frivolous issues, makes a brief comporting with the literal rule and spirit of Anders practically impossible to write for conscientious, ethical attorney. See supra, at 13-19; see Pengilly, Never Cry Anders: The Ethical Dilemma of Counsel Appointed to Pursue a Frivolous Appeal, 9 Crim. Just. J. 45, 52 (1986); Pritchard, Auctioning Justice: Legal and Market Mechanisms for Allocating Criminal Counsel, 34 Am. Crim. L. Rev. 1161, 1166 (1997). Anders left key terms such as "wholly frivolous" and "arguably support the appeal" undefined, a failing this Court has never remedied. See supra, at 18. It is unfortunately too easy to sympathize with the complaint of one attorney that "[a]fter reading [Anders] carefully, however, I still had no idea what was expected of me or any other appointed attorney in a similar position." Pengilly, supra, 9 Crim. Just. J., at 47. As one treatise somewhat undiplomatically put it: "such a document, known as an Anders brief, is an anomaly, and demonstrates the Court's isolation from the realities of practice." 1 G. Hazard & W. Hodes, The Law of Lawyering §3:1:304, p. 567 (2d ed. 1996 Supp.)

Anders is no easier on the courts that must administer it. A Florida appellate judge, in her survey of the courts implementation of Anders, noted that dealing with Anders is "[a] continuing source of frustration for the appellate judge . . . ." Warner, Anders in the Fifty States: Some Appellants' Equal Protection is More Equal than Others', 23 Fla. St. U. L. Rev. 625, 625 (1996). Anders' lack of clarity is reflected in the many different approaches courts take to implementing the decision.

"Ten states have rejected the Anders procedure." Id., at 642. The judicial abandonments of Anders have invoked various reasons and applied different means to avoid this decision. The Idaho Supreme Court simply refused to allow counsel to withdraw from frivolous appeals, finding that such appeals can be disposed of more fairly and efficiently through the traditional briefing process than under Anders. See State v. McKenney, 568 P. 2d 1213, 1214 (1977) (per curiam). The North Dakota Supreme Court found Anders violated state constitutional law depriving defendant of his state right to appeal. See State v. Lewis, 291 N. W. 2d 735, 738 (1980). Its solution was to appoint new counsel whenever original counsel claimed the appeal was frivolous. Ibid. Even though this might force some counsel to file briefs that they believed frivolous, this consequence was acceptable due to the substantial court time saved by abandoning Anders. See ibid. Unfortunately, the Court also concluded that it would still impose sanctions for prosecuting a frivolous appeal. Id., at 738-739.

The Massachusetts Supreme Court effectively abandoned Anders in Commonwealth v. Moffett, 418 N. E. 2d 585 (1981). The Court's decision was based on both the "Janus-faced approach" of Anders briefs, and the administrative problems of dealing with Anders. See id., at 590. If counsel finds it "absolutely necessary" to be disassociated from frivolous arguments in the brief, the court allowed counsel to indicate this in a preface to the brief, while requiring this brief to be served on the client. Id., at 591-592.

Perhaps the most thorough examination of Anders came from another court that withdrew from the decision, the Oregon Supreme Court. In State v. Balfour, 814 P. 2d 1069 (1991), the Oregon high court reasoned that after Penson v. Ohio, 488 U. S. 75 (1988), Anders was not a mere set of guidelines, but instead "a stringent benchmark against which to gauge state procedures." Balfour, 814 P. 2d, at 1076. The Balfour Court nonetheless reaffirmed its preeminence as the arbiter of legal ethics within the state except when such practices implicated federal constitutional rights. Id., at 1078. Therefore, it rejected Anders as the only permissible solution to the problem of frivolous appeals by indigent defendants. Ibid. By preventing counsel from withdrawing, the constitutional mandate for Anders was gone; Anders only applied to motions to withdraw. Id., at 1079. This allowed counsel to avoid the unethical requirement of having to argue frivolous issues. Counsel would simply file a statement of the facts and jurisdiction of the court. Id., at 1080. If the defendant desired to raise issues, counsel would assist in preparing them, but would not have to sign that part of the brief, avoiding any ethical problem with advancing frivolous issues. Ibid. This convoluted brief would thus resolve Anders' conflict between advocacy and the prohibition against frivolous appeals. See id., at 1081.

Georgia, Mississippi, and New Hampshire have also abandoned Anders in decisions. See Huguley v. State, 324 S. E. 2d 729, 731 (Ga. 1985); Killingsworth v. State, 490 So. 2d 849, 851 (Miss. 1986) (en banc); State v. Cigic, 639 A. 2d 251, 254 (N.H. 1994). Other courts have abandoned Anders informally. These states include: Hawaii, Kansas, Maryland, New Jersey, Alaska, and Nebraska. See Warner, supra, 23 Fla. St. U. L. Rev., at 651.

There is little consistency among the jurisdictions that attempt to apply Anders. California's interpretation, People v. Wende, 25 Cal. 3d 436, 600 P. 2d 1071 (1979), is perhaps the closest to literal compliance with Anders. See Pengilly, supra, 9 Crim. Just. J., at 57-58. The California Supreme Court noted that under this procedure, counsel could obtain greater review for the client than when counsel raised specific issues in a brief on the merits. See Wende, 25 Cal. 3d, at 1078, 600 P. 2d, at 1075. The Court felt confident that attorneys would not shirk their professional responsibility by filing false Anders briefs, ibid., showing more respect for the profession than the Anders majority.

Following this Court's example in Anders, the California Supreme Court provides little detail as to what the withdrawal brief should contain, other than "a statement of the facts and the applicable law . . . ." See People v. Feggans, 67 Cal. 2d 444, 447, 432 P. 2d 21, 23 (1967); Wende, supra, 25 Cal. 3d, at 440, 600 P. 2d, at 1073. Other states, however, are more willing to inform counsel what the brief should obtain. Arkansas provides particularly detailed guidance, requiring that the brief:

"shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. The abstract section of the brief shall contain, in addition to the other material parts of the record, all rulings adverse to the defendant made by the trial court." Rules of Arkansas Supreme Court and Court of Appeals, Rule 4-3(j)(1).

This level of detail is not required of briefs on the merits, and probably deters the filing of Anders briefs. See Warner, supra, 23 Fla. St. U. L. Rev., at 653, n. 223. A somewhat less detailed, but still explicit regulation was upheld by this Court in McCoy v. Court of Appeals of Wisconsin, 486 U. S. 429, 430 (1988). Other states are much less focused, allowing Anders to be governed by local rules of court, see Warner, supra, 23 Fla. St. U. L. Rev., at 654, n. 225.

One consequence of the confusion surrounding Anders is a considerable variation in how courts review Anders motions. The Warner survey of Anders found that:

"Fourteen courts, or twenty-one percent of those responding, indicated that they do not comb the record to point out arguable appellate issues. Others reported that they point out only issues constituting clear error, not merely issues of arguable merit. When unaddressed issues are found, the majority of courts simply order rebriefing by appointed counsel. However, a substantial number of courts order the appointment of new counsel to file new briefs on this occasion. And, in what appears to be a practice contrary to the holding of Penson v. Ohio, some courts address the issues sua sponte without any rebriefing. When issues of arguable merit are found by the court in its review, whether to appoint new counsel or to allow rebriefing by withdrawing counsel also varies among the districts within some states." Id., at 656.

Anders is a mess. The socially useful experimentation of federalism is one thing; the widespread repudiation and inconsistent application of Anders' vague and inconsistent mandates is another. Something must be done about Anders, and stare decisis should not stand in the way.

Ideally, Anders should simply be overruled. It wastes scarce judicial resources on behalf of the least deserving litigants at the expense of indigent defendants with valid claims. It is premised upon a degrading appraisal of the appointed bar and a cynical appraisal of retained counsel. By virtue of its unsolvable ethical dilemma and logically untenable distinctions, Anders requires a brief from counsel that is as impossible to write as it is degrading. All of these problems limit judicial efforts to free up its scarcest resources, the appellate courts.

Overruling Anders will not leave indigent defendants without recourse if appointed counsel improperly withdraws. A claim for ineffective assistance of appellate counsel would still be available to appellants who are actually prejudiced. See Evitts v. Lucey, 469 U. S. 387, 397-398 (1985). "The ability to raise ineffective assistance claims based in whole or in part on counsel's procedural defaults substantially undercuts any predictions of unremediated manifest injustice." Murray v. Carrier, 477 U. S. 478, 496 (1986). While such relief may not be easy to obtain, appeals believed frivolous very rarely contain reversible issues. See supra, at 21. Allowing counsel to act as gatekeeper would free resources to allow other defendants with briefable issues to receive justice.

Overruling Anders does not abandon the indigent defendant whose counsel seeks to withdraw. Some procedure should guide the court's discretion to allow counsel to withdraw, but it should be less cumbersome, divisive, and suspicious than Anders. Counsel should not be required to submit the impossible Anders brief, but may instead write a letter like the one accepted by the California Court of Appeal in Anders. The letter should state that there is no merit to the appeal, that counsel came to this conclusion after studying the record, and that counsel informed defendant of this conclusion. See Anders v. California, 386 U. S. 738, 739-740 (1960). Defendant should receive a copy of this letter, and should have the option of filing a pro se brief, or making a request to the court to find substitute counsel. The request may include any potentially appealable issues defendant wishes to bring to the court's attention. The court may, but does not have to, grant defendant's request for new counsel. Courts would be free to develop more stringent policies, or even to forbid counsel from withdrawing from frivolous appeals.

This procedure would be efficient, by avoiding Anders' wasteful duplication of resources. It would also be easier for counsel than writing the impossible Anders brief, while still protecting defendant. Although the protection is less than that found in Anders, the interests Anders purports to protect deserve less effort than that decision requires. Attorneys can be trusted to act professionally when withdrawing from cases. An erroneous withdrawal that results in the undeserved affirmance of a conviction is exceedingly rare. See supra, at 21. The harm to society and defendants from Anders' wasteful procedure is greater and more certain. In the end, everyone benefits by abandoning Anders, for a more trusting, less cumbersome procedure.

If this Court refuses to overrule or modify Anders, it should nonetheless "decline to go beyond it, by even a fraction of an inch." Silverman v. United States, 365 U. S. 505, 512 (1961). The Ninth Circuit's decision to void California's Wende procedure is such an improper extension of Anders. A wrong rule is necessarily a "new rule," not dictated by precedent. Cf. Conn v. Gabbert, 526 U. S. ___ (No. 97-1802, April 5, 1999) (slip op., at 7) (holding the nonexistence of a right "pretermit[s] the question of whether such a right was 'clearly established' as of a given day"). The Ninth Circuit's decision was thus at least barred under Teague v. Lane, 489 U. S. 288 (1989).

"Justice, like other goods, is scarce." Pritchard, supra, 34 Am. Crim. L. Rev., at 1191. Anders has created an unworkable standard in pursuit of an unnecessary goal, "squandering judicial resources with little offsetting benefit to anyone." Sandin v. Conner, 515 U. S. 472, 482 (1995). This Court should trust courts and counsel to find the best way of maximizing justice with their necessarily limited resources.

CONCLUSION

April, 1999

Respectfully submitted,

Kent S. Scheidegger
Charles L. Hobson*

*Attorney of Record

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