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39 UCLA L. Rev. 503 (1991-1992)
Rethinking the Constitutional Right to a Criminal Appeal

handle is hein.journals/uclalr39 and id is 517 raw text is: ARTICLE RETHINKING THE CONSTITUTIONAL RIGHT TO A CRIMINAL APPEAL Marc M. Arkin* Suppose for a moment that the legislature of the state of New York, in response to its overburdened criminal justice system, passes a law which abolishes direct appeals from criminal convic- tions.' A challenge to this legislative action reaches the United States Supreme Court in a petition for federal habeas corpus relief, alleging that the abolition of the criminal appeal violates the pris- oner's federal constitutional right to due process of law. How should the Supreme Court respond? Following the conventional wisdom, the Court would barely need to deliberate before upholding the state legislature's action. Criminal appeals did not exist at the time of the Founding; Con- gress did not provide for federal criminal appeals until the late nine- teenth century; accordingly, the criminal appeal cannot form part * Associate Professor of Law, Fordham University School of Law. A.B., Oberlin College, 1973; J.D., Yale Law School, 1982; Ph.D., Yale University, 1983. I am grate- ful to Henry Monaghan for his encouragement and suggestions-although he is not responsible for the use to which they have been put-and to Steve Thel and James Fleming for their insightful comments on earlier drafts of this article. I wish to thank, as well, Stephen Ksenak and Ira Lakritz, Fordham University School of Law, Class of 1993, for their research assistance and the Fordham University School of Law for its grant in support of this project. 1. For this hypothetical to achieve maximum force, the legislature would need to abolish state collateral proceedings, such as coram nobis, as well, see, e.g., N.Y. CRIM. PROC. LAW § 440.10 (McKinney 1983), so that no state avenue of review remained. The constitutional considerations raised by the abolition of collateral proceedings would be fundamentally the same as in the case of direct appeals. Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987).

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