[UPDATE as of 2/5/2011: The case has been renamed Turner v. Rogers and will be heard on March 23, 2011. More factual background on the case can be found here.]
Last week I wrote a general article introducing Turner v. Price, a case on the Supreme Court’s docket, which will be heard sometime in early 2011. The primary issue in the case is whether or not an indigent defendant is entitled to have a court-appointed attorney when (s)he faces a civil contempt hearing for failing to provide child support. I want to discuss some follow-up thoughts I have had since last week and advance some positions about the matter. I will first provide a quick summary of the arguments on both sides of the case so that we’re on the same page. Next, I’ll discuss some of the specifics about the civil contempt context and what makes it unique. Finally, I will list some of my thoughts and arguments regarding the case.
I. SUMMARY OF THE ARGUMENTS
The right to an appointed counsel in criminal matters is well-established, both in the Bill of Rights and Gideon v. Wainwright, 372 U.S. 335 (1963). Like every challenging legal issue that we face, the difficulty lies in figuring out how this right applies in murky situations. In Turner v. Price, we meet such murkiness head-on. The matter is a court hearing for unpaid child support. It has seemingly nothing to do with the criminal law world whatsoever — a fact that would typically mean there is no Constitutional mandate for a court to ensure legal counsel. Granted, like every other imaginable aspect of the law, there are some limited exceptions where civil actions may require indigent representation. See, e.g., Lassiter v. Dep’t of Soc. Servs, 452 U.S. 18 (1981) (finding an indigent parent may have a right to counsel when losing custody of a child could result). Nevertheless, those limited exceptions are just that: limited. What complicates Turner is the possibility of civil contempt. Because Mr. Turner had failed to pay child support as ordered by the court, he was held in civil contempt and faced a number of punitive possibilities as a result. One of those possibilities was jail time, which was exactly what he received. What would otherwise be a clear civil matter is complicated by seemingly criminal concerns. Are those concerns enough to make this case fit under Lassiter or is Mr. Turner without recourse? That is the issue that the Supreme Court will have to work out.
II. SPECIFICS OF THE MATTER
Since I wrote last week, I have gleaned some additional information on contempt hearings, how they fit into the child support framework, and what the rights to counsel are from jurisdiction to jurisdiction. For a very thorough treatment, see 32 A.L.R.5th 31 (1995). As the aforementioned article suggests, the rights to an attorney during a contempt proceeding can vary from state to state quite a bit. Nevertheless, the clear majority trend among states is to guarantee any indigent person facing incarceration the right to counsel, regardless of whether the hearing is a criminal or civil matter. In other words, in most places a defendant like Mr. Turner would have no need for concern because the state has guaranteed a protection above and beyond what is clearly covered in the U.S. Constitution.
However, there are still states that are not willing to make such an extension and South Carolina is one of them. Mr. Turner’s matter shows a fundamental “catch 22.” The only way a defendant who owes child support can avoid contempt is to prove (s)he cannot afford to pay. The only way (s)he can prove a lack of funds is to hire an attorney. If the defendant could afford an attorney, (s)he could afford to pay the child support in question thus having an attorney would make little difference. As such, the problem becomes clear: what state you go to court in could determine whether or not you go to jail.
The interesting twist is a distinction between civil and criminal contempt. Ironically, you could potentially face more jail time if found in civil contempt because the judge has more discretion over the sentence. This is of particular importance, because it implies something else: a judge has more freedom to find alternatives to incarceration in the civil contempt context.
One might question the necessity of alternatives. Does a judge need that many options? Do we want such wide latitude in these matters? To answer that, I would submit, we need to know a bit about the types of people that may face civil contempt and what we hope to accomplish with the instrument. I will focus on the child support context. According to the amicus curiae brief from the Center for Family Policy and Practice, a great majority of unpaid child support can be attributed to parents below the poverty line (see pages 7-8 of their brief). Who is bringing the claims for child support? Consider the usual scenario: a couple splits up, with the mother retaining custody of the kid(s), which happens almost every single time. The father is to pay child support should the mother request as such. Quite often, the mother requests support in the first place because she herself is living below the poverty line. When that is the case, the government does the legwork. And so, the typical scene plays out like this: the government comes after the non-paying father. Unless he can prove an inability to pay, he’ll face some consequences that are likely to be determined widely by the presiding judge.
III. MY THOUGHTS AND ARGUMENTS
The difficulty of this issue is not lost upon me. On the one hand, a method of imposing sanctions for non-compliance is crucial if anyone is to have an incentive to pay his or her due financial support. On the other, so many of the cases where payment isn’t made involve a parent who truly cannot pay. What is to be done?
I suggested earlier that we need to give careful consideration to what the goal of contempt is to answer such a question. Is it merely to incentivize compliance? Is it to ensure the mother (or less often, father) gets the money she needs in order to raise her child(ren)? The court certainly might hope for both, I imagine. They do not seem to be competing goals, but they may not both be achievable in each case. If a parent is thrown in jail, (s)he is certain to lose any job and thus any way of paying. The support-seeking parent is no closer to seeing a check than before the matter went to court. So what should be our top priority? If you’re reaching for the “it depends” answer, then I think you’re right. Yet, I’d ask you to identify upon what it depends and I’d like to submit that it depends upon the good faith of the non-compliant parent. After all, how can we feel a great need to exact punishment on a parent who made every effort to provide and yet was still unable? On the other hand, how can we excuse the parent who intentionally refuses to provide support for no better reason than “I don’t want to?”
These difficulties suggest differing approaches are suited to differing situations. The good faith parent might be better suited to register with a temporary employment agency and take steps to acquire a job. The intentionally evasive parent may require a bit harsher treatment such as jail time. It is not so unbelievable that a good faith actor could quickly turn into the latter, intentional evader should (s)he not comply with an initially merciful sanction. Are harsher punishments necessary in such instances? I think it seems fair to say yes …but I’d ask how many times is such a devolution likely to occur? And is that number so high that the state couldn’t afford to provide attorneys in such situations? After all, that’s a key argument for the Ms. Price side. The respondents in Mr. Turner’s case suggest that requiring states to provide legal counsel to every indigent, non-paying parent haled into court would create a huge financial hardship on the state. It is an argument I reject.
I reject it for several reasons. First, there is no reason why every non-paying parent should have to face a possibility of jail time. Such a measure should be reserved for situations where lesser deterrence mechanisms have not or will not work. Remember, a parent in jail is a parent who cannot contribute any money to a child’s custodial parent. Do we really want to put someone in jail for failure to pay unless it’s the last resort? I, for one, can answer that question with a definite no.
Even if that argument fails to persuade, consider the reality. Most states do require a right to counsel for indigent defendants facing civil contempt. Are they hurting? No. Do the few states not willing to afford such a right appear to be doing better off financially? No. Even the most punitive-focused person would have difficulty suggesting that a legal counsel requirement would actually create a significant financial burden. Especially since there are ways to implement the requirement without incurring any expenses: private attorneys could be made to fulfill pro-bono requirements at no cost to the state government or its citizens. Now, I personally think those methods of public defense are a bad solution (see here for why), but it would admittedly be an important start…and certainly better than no representation at all.
Finally, I would argue that, regardless of the previous two reasons, undue financial burden is no excuse for not providing legal counsel to those who may face jail time. There is strong caselaw support for the right to counsel being a fundamental, constitutional right (as I discussed last week). There is a good reason for that. We subscribe to, above all else, three fundamental rights all Americans have: life, liberty, and pursuit of happiness. Our liberty is not a right to be limited lightly. It matters not if restriction of physical liberty follows a robbery conviction or a failure to pay child support; it’s a huge thing to lose. This is the logic behind a right to counsel. Few people have the legal aptitude to properly defend themselves, which is why a lawyer is crucial to ensuring a person receives an adequate defense. Without an attorney, we face a great possibility of unfairly losing our right to liberty and that’s a fact that remains true regardless of whether the punishment is deemed “criminal” or “civil.” The undue financial burden argument couldn’t pass muster in Gideon and it’s hard to see how distinguishing between what’s a civil or criminal punishment is anything beyond semantics if the end result is a jail cell either way. Even if imposing a right to attorney requirement on civil contempt hearings would create significant costs, it seems hard to argue this would outweigh the importance of protecting due process.
IV. CONCLUDING REMARKS
The difficulty of weighing and prioritizing competing interests is no new challenge for the court system in America. However, when push comes to shove, almost nothing is placed above our right to physical freedom. It’s why we have public defense rights. We believe the cost of providing such an infrastructure is worth it if the end result is preserving our due process rights. There is no reason for me to believe such logic should not apply in a civil contempt hearing such as the one Mr. Turner faced. The good news is: there is little reason to believe it should have to be an “either or” situation. Most states have successfully implemented public defense into the civil contempt framework without incident. And even if the remaining states are unconvinced, they need only remember that civil contempt proceedings allow for a wide range of outcomes — jail time being only one. There are a lot of alternatives and many of them would probably be more effective anyway.
Will the Supreme Court see it this way? Now that’s a question that only time will tell. But of course, I’ll keep following the case and keep posting updates along the way. For now, it’s just a waiting game.