The Civil Right to Counsel on Appeal: Civil Douglas

Abstract

The litigation movement to establish a categorical constitutional civil right to counsel at trial - Civil Gideon - at every turn runs up against a durable barrier: the presumption against appointed counsel, created by the Court in Lassiter v. Department of Social Services, in those cases where physical liberty is not at stake.

This article argues that the civil right to counsel on appeal - Civil Douglas, after Douglas v. California, establishing the right to counsel on appeal in criminal cases - provides a clearer path to a broader categorical constitutional civil right to counsel. The case for Civil Douglas is based on principles of equal access, not due process, and it therefore avoids the Lassiter presumption altogether. Moreover, a civil right to counsel on appeal would make the civil right to counsel at trial all but inevitable (Lassiter notwithstanding), just as the holding in Douglas portended the fall of Betts v. Brady and the rise of Gideon.

Keywords: Civil Gideon, due process, equal protection, access to the judiciary