372
Thomas, J., concurring
What we did say is that, in the absence of state-provided counsel, "[t]here is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counse[l] . . . while the indigent . . . is forced to shift for himself." Douglas, supra, at 357- 358. Just as in Griffin, where "we held that a State may not grant appellate review in such a way as to discriminate against some convicted defendants on account of their poverty," Douglas, 372 U. S., at 355, the evil motivating our decision in Douglas was "discrimination against the indigent," ibid.3
3 There is some discussion of due process by the plurality in Griffin, see 351 U. S., at 17-18, and a passing reference to "fair procedure" in Douglas, 372 U. S., at 357. These unexplained references to due process, made in the course of equal protection analyses, provide an insufficient basis for concluding that the regulations challenged in Griffin and Douglas independently violated the Due Process Clause. And attempts in subsequent cases to salvage a role for the Due Process Clause in this context and to explain the difference between the equal protection and due process analyses in Griffin have, in my opinion, been unpersuasive. See Evitts v. Lucey, 469 U. S. 387, 402-405 (1985); Bearden v. Georgia, 461 U. S. 660, 665-667 (1983). In any event, there do not appear to have been five votes in Griffin in support of a holding under the Due Process Clause; subsequent transcript and fee cases turned primarily, if not exclusively, on equal protection grounds, see, e. g., Smith v. Bennett, supra, at 714; and the Douglas Court, with its "obvious emphasis" on equal protection, 372 U. S., at 361 (Harlan, J., dissenting), does not appear to have reached the due process question, notwithstanding Justice Harlan's supposition to the contrary, see id., at 360-361.
It is difficult to see how due process could be implicated in these cases, given our consistent reaffirmation that the States can abolish criminal appeals altogether consistently with due process. See, e. g., Ross v. Moffitt, 417 U. S., at 611. The fact that a State affords some access "does not automatically mean that a State then acts unfairly," and hence violates due process, by denying indigents assistance "at every stage of the way." Ibid. Under our cases, "[u]nfairness results only if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty," a question "more profitably considered under an equal protection analysis." Ibid.
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