Hardy v. United States/Dissent Harlan

Mr. Justice HARLAN, dissenting.

I think the Court should not, in the name of exercising its supervisory powers, engraft this further requirement on 28 U.S.C. § 1915. The holding is that an indigent convict who-following the trial court's certification that his appeal was frivolous and not taken in good faith-has received at the direction of the Court of Appeals a free copy of that portion of the trial transcript germane to the errors asserted as grounds for appeal, is entitled as of right to a free copy of the balance of the transcript if his appellate counsel was not the lawyer who represented him at the trial. The theory is that this is necessary to enable the new lawyer to discover possible 'plain error.'

Four members of the Court would go further. They would furnish comp ete transcripts as a matter of course to all indigent appellants, whether or not represented at the appellate stage by the same lawyer who acted for them at the trial. Ante, p. 288. And recognizing that any indigent receiving such a transcript is thus advantaged over an appellant who has to pay for his transcript, they go on to suggest that fairness may require that appellants who are not indigent, but impoverished, should be furnished free transcripts to the extent that they cannot afford to pay for them. Ante, p. 289, n. 7. Although the majority opinion stops short of both of these propositions, given what is now done can it be said that these more expansive positions are without force? Be that as it may, the Court has taken a long step in derogation of the hitherto consistently maintained view, both in federal and state criminal cases, that an indigent defendant is not automatically entitled to a free transcript simply because those economically better situated can obtain their transcripts at will. See Johnson v. United States, 352 U.S. 565, 566, 77 S.Ct. 550, 551, 1 L.Ed.2d 593; Griffin v. People of State of Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 591, 100 L.Ed. 891; Eskridge v. Washington State Board of Prison Terms & Paroles, 357 U.S. 214, 216, 78 S.Ct. 1061, 1062, 2 L.Ed.2d 1269; Draper v. Washington, 372 U.S. 487, 495, 83 S.Ct. 774, 778-779, 9 L.Ed.2d 899.

Granting that § 1915 has not caught up with this Court's recent pronouncements in this area (see concurring opinion of CLARK, J., ante, pp. 296-298) and that, as recommended in the recent report of the Attorney General's Committee, the time has come for a comprehensive overhauling of the procedures governing in forma pauperis appeals in the federal system, I believe that such an undertaking is more appropriately to be accomplished by congressional action, taken in collaboration with the Judicial Conference of the United States, than by piecemeal adjudications of this Court. Especially meet for such a course is the innovation made today, a step which in countrywide application affects the public treasury to an unknown degree, and whose wisdom should not be judged in the abstract or upon the limited data presently before the Court.

A balanced solution of a problem having such unforeseeable ramifications requires consideration of the informed views of those on the firing line of the administration of criminal justice District judges, Circuit judges, United States attorneys, defense lawyers and Legal Aid Societies-and exploration of differing conditions among the Circuits. It might be concluded that a nationwide requirement of this sort would be unsound, and that the matter is best left for discrete treatment by the Judicial Councils in the various Circuits, subject of course to constitutional limitations. Remotely situated as this Court is from the day-to-day workings of the criminal system, it should hesitate to promulgate blanket requirements on this subject based largely upon theoretical considerations. Cf. Sanders v. United States, 373 U.S. 1, 23, 83 S.Ct. 1068, 1081, 10 L.Ed.2d 148 (dissenting opinion of this writer).

I would dispose of this case as the Government suggests by remanding it to the Court of Appeals for further consideration in light of that court's subsequent decision in Ingram v. United States, 114 U.S.App.D.C. 283, 315 F.2d 29. I do not understand this Court's decision to rest on constitutional grounds, nor do I think it well could.