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It seems that every Term or so, the Supreme Court decides a civil case of great relevance to the criminal defense bar. The 2010-2011 Term was no exception. On June 20, 2011, the Court decided Turner v. Rogers (see page 10 in this issue). In an opinion authored by Justice Stephen Breyer, a closely divided Court (5-4) held that while the 14th Amendment does not require the appointment of counsel for an indigent person facing incarceration for civil contempt, it does require adequate safeguards to ensure a fundamentally fair determination. The case involved a finding by a South Carolina court that Michael Turner had willfully failed to pay child support in the amount of $5,728.76, and the court’s imposition of a one-year jail sentence.
NACDL filed a joint amicus brief with the Brennan Center for Justice, the National Legal Aid and Defender Association, the Southern Center for Human Rights, and the American Civil Liberties Union Foundation.1 Amici argued that providing counsel to an indigent individual facing jail time in a civil contempt hearing is essential to prevent wrongful incarceration because indigent litigants often lack the courtroom skills to effectively represent themselves in complex proceedings. The presence of counsel helps to ensure that only willful contemnors are incarcerated. Amici further urged the Supreme Court to provide clear guidance to the states that the Constitution requires appointment of counsel whenever personal liberty is threatened.2
Some viewed this case as a chance to take a giant step toward the dream of “civil Gideon.” Court systems throughout the nation are dealing with a cascade of pro se litigants who appear in various courts facing life-altering consequences in matters such as child support, custody, visitation, eviction, and foreclosure. For judges and court administrators, this is a nightmare. A constitutional right to counsel would engender costs, but at least it would provide a remedy for the crisis of the unrepresented and the far greater costs that may result from flawed adjudications. Unfortunately, that goal was not achieved in this case.
From the criminal defense practitioner’s standpoint, the Court’s decision betrays naïve simplicity and a breathtaking disconnect from the real world. The first of the three reasons cited against the Due Process Clause requiring the State to provide indigents with counsel in civil support contempt proceedings is that the critical issue is likely to be the defendant’s ability to pay. The Court blithely notes that the question of a defendant’s indigence “is sufficiently straightforward.”3
The issue of the ability to pay is inexorably bound up in questions of intent — generally the thorniest of issues to resolve. Criminal defense practitioners well know that the question of an individual’s ability to pay a fine or restitution is often inextricably interwoven with myriad issues that may involve medical issues, mental health issues, addiction, and an array of factual circumstances. Indeed, it is not uncommon when litigating an alleged violation of probation to rely upon fact witnesses and experts to demonstrate to the court that the failure to pay has not been willful. As NACDL’s amicus brief made clear, the guiding hand of counsel is an indispensable aid. Those who hover at the edge of abject poverty are usually the least capable of marshaling the evidence necessary to demonstrate a legitimate excuse for non-compliance.
Indeed, it was while thinking about litigating these issues on behalf of criminal clients in probation violation proceedings that I was struck by the Court’s reliance upon the Gagnon case, which held that there is no right to counsel at a probation revocation hearing.4 On three occasions, just as it seemed that the Court was on the precipice of finding that a right to counsel in civil non-payment support proceedings is constitutionally required, the Court cited Gagnon.5 The last of these cites immediately follows a paragraph that notes the important liberty interest at stake and references studies establishing the prevalence of the “ability to pay” question and that courts are often remiss in resolving that core question. These compelling factors are dismissed with a citation to Gagnon as authority for the proposition that the Due Process Clause does not always require the provision of counsel in civil proceedings where incarceration is threatened.6 Indeed, the Court’s analysis in Turner closely tracks the analysis in Gagnon.
If I ever was familiar with the Gagnon case, I have long since forgotten it. As someone who practiced criminal defense for nearly three decades in the state and federal courts in New York, on numerous occasions I was assigned to represent indigent defendants in probation revocation proceedings. This was not an act of largesse by the courts. State and federal laws require it. The Federal Rules of Criminal Procedure require that the alleged violator must be advised of the right to counsel and the right to the appointment of counsel if he or she cannot afford it at each phase of the proceeding, including the initial appearance, the preliminary hearing, and the final revocation hearing.7 New York law similarly entitles the alleged violator to counsel at every stage of the proceeding.8 Indeed, research shows that all but three states require the presence of counsel when a revocation of probation may result in incarceration.9
The role of counsel at these violation proceedings is vital. In many respects they are closely analogous to the proceedings against Michael Turner. Indeed, often the alleged violation is for non-payment of restitution. While the Court in Gagnon found that there was no constitutional requirement of counsel, it also noted that there would be cases in which “fundamental fairness — the touchstone of due process — will require that the State provide at its expense counsel for indigent probationers or parolees.”10 In fact, while noting that the facts and circumstances that could arise at a revocation hearing “are susceptible of almost infinite variation,” the Court noted that “presumptively” counsel should be required in cases when the subject denies commission of the violation or where there may be justification or mitigation that makes revocation inappropriate.11 It is hard to imagine many situations in which a skillful mitigation presentation does not make a difference.
Perhaps by articulating the circumstances in which counsel should be provided, the Gagnon Court paved the way for what is now well-accepted procedure in revocation proceedings, even though the Due Process Clause may not require counsel in all circumstances. In the end, it may turn out that as jurisdictions consider how to provide the “alternative procedural safeguards” required by Turner in support contempt proceedings, they will conclude that the most reliable and effective of these safeguards is the provision of counsel. If so, even though the decision may not have provided the pure and categorical constitutional principle many sought, it gives great impetus to legislatures and appellate courts to ensure that there is meaningful due process when incarceration hangs in the balance. The surest, simplest, and most consistent means of achieving that is to provide counsel.
Perhaps in the fullness of time, the law will evolve to the point where counsel is statutorily required whenever liberty is at stake. If so, practitioners in civil contempt proceedings will have a similar reason to forget that Turner, like Gagnon, lamentably stopped short of establishing that practice as a constitutional right. In the meantime, it is incumbent upon the organized bar to push courts, court administrators, and legislatures toward that goal. Criminal defense lawyers are uniquely well-positioned to support this effort.
Thanks to Melissa Weeden, NACDL’s Legislation and National Security Law Clerk, for her assistance with the research regarding state practice with respect to probation revocation hearings.
Notes
1. The brief is available online (http://www.nacdl.org/public.nsf/newsissues/Amicus_Attachments/$FILE/TurnervRogers_Amicus.pdf).
2. The Amicus project was coordinated by Jeffrey Green of NACDL’s Amicus Committee and Malia Brink, NACDL’s director of institutional development and project counsel. The authors were: Stephen J. McConnell, Meghan Rohling Kelly, Christina S. Keddie, and David S. Caroline of Dechert LLP, Philadelphia, Pa.
3. Turner v. Rogers, No. 10-10, slip op. at 13 (June 20, 2011).
4. Gagnon v. Scarpelli, 411 U.S. 778 (1973).
5. Turner v. Rogers, slip op. at 9-10, 12-13.
6. Id. at 13.
7. FED. R. CRIM. P. 32.1(a)(3); 32.1(b)(1)(B)(i); 32.1(b)(2)(D).
8. N.Y. CRIM. PROC. LAW § 410.70(4).
9. Forty-seven states and the District of Columbia provide for the right to counsel during probation revocation hearings. Thirty-four states explicitly provide for the right to counsel during probation revocation hearings. Those states are: Alaska, Arkansas, California, Connecticut, Florida, Georgia, Hawaii, Illinois, Indiana, Kansas, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. Additionally, 12 states and the District of Columbia provide for the right to counsel at all stages of a criminal judicial proceeding, which includes a probation revocation hearing. Those 13 jurisdictions are: Alabama, Arizona, Delaware, Idaho, Iowa, Maryland, New York, Nevada, New Mexico, Rhode Island, Tennessee, Texas, and the District of Columbia. Colorado also recognizes the right to counsel when the defendant requests a hearing.
10. Gagnon, 411 U.S. at 790.
11. Id.
