Turner v. Rogers and its Importance in Indigent Defense
| Criminal Law & Psychology Blog
I wanted to take some time out of my schedule to discuss Turner v. Rogers while it’s still recent and I remember my thoughts on the matter. First, I will provide some basic background on the case. Then, I will discuss the basic legal and policy arguments of the case. Finally, I will turn attention to my predictions and the importance of this case for indigent advocacy in general.
I. HISTORY OF THE CASE
What is this Turner v. Rogers case I’m talking about? The answer, thankfully, is rather straightforward. This case involves two indigent parents involved in a dispute over child support. The mother, Ms. Rogers, brought a straightforward court claim against Mr. Turner for child support he owed to their daughter. So far, nothing out of the ordinary.
The noteworthy aspect of the case is that Mr. Turner is indigent, a formal term for a person who is poor; presumably below the poverty line. In terms of full disclosure, both Ms. Rogers and Mr. Turner were indigent parents.
The court in this case held Mr. Turner in contempt for failing to pay for his child support obligations. A proper defense to this failure is an inability to pay based upon lack of necessary income. If that’s the case, why did the judge hold Mr. Turner in contempt? There is both a broad and specific answer. The broad one is that the poverty defense is an affirmative one — one that a defendant must prove in order to avoid being held in contempt. The specific answer is that Mr. Turner lacked an attorney, who would have certainly asserted this defense.
In these situations, a person can typically be held in either civil or criminal contempt, the specifics of which vary by jurisdiction. This case occurred in South Carolina, where a person facing civil contempt may be incarcerated as a result. That’s what occurred with Mr. Turner, who was sentenced to serve jail time for being what most us know in lay terms as being “a deadbeat dad.”
Mr. Turner appealed his case all the way up to the South Carolina Supreme Court on the grounds that he was entitled to have an attorney appointed for him since he could not pay for one on his own. The South Carolina Supreme Court disagreed with his claim and, as a result, he petitioned the US Supreme Court to hear his case.
Yesterday, it agreed to do that.
II. LEGAL BACKGROUND
The arguments in this case are quite well stated in the various briefs that have been submitted to the Supreme Court and for those interested in more detail, I recommend reading them. Here, I aim only to provide a basic summary of the various points to be made.
A. Background on the Legal Right to an Attorney
This case probes at a murky area of an otherwise-clear aspect of the law: an indigent’s right to counsel.
If you have ever watched a detective TV show, you’re probably familiar with theMiranda warning that a suspect gets read to him/her when arrested. Among the rights defendants are informed of are rights to counsel. “You have the right to an attorney. If you cannot afford one, you will be provided one by the state.” Indeed, this right is as fundamental as the 6th amendment to the United States Constitution, which says in relevant part that, “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.”
Although this right originates from the Bill of Rights, it is understood through the modern lens of Gideon v. Wainwright, 372 U.S. 335 (1963). The Gideon case is one of those biggies; one of those cases like Brown v. Board of Education or Palsgraf v. Long Island Railroad Co. that every student of the law is bound to learn about. In Gideon, the court held that the right to counsel in criminal matters is one that states must provide for due to the 14th amendment. There, the rationale was straightforward: most people lack the legal skill and expertise to properly defend themselves in court. Therefore, this is an even more acute problem for poor people, who are statistically less likely have adequate education and resources… or the know-how to seek someone who does have the requisite skills. Put another way, indigent defendants are a vulnerable population.
Behind this logic was an important consideration: the severity of the outcome. In a criminal matter, a person faces not merely the possibility of economic damages but the very real chance of loosing personal freedom. To restrain liberty is a serious matter the Court was not willing to take lightly. It seemed only natural then that failing to provide a poor person an attorney was therefore failing to afford him or her due process.
Less natural was just how far this extends. In the context of a person accused of a crime, a right to have a public defender or court-appointed attorney is obvious. But what about in a civil proceeding? If I sue a poor person for hitting me in a car-crash and causing me injuries, do they have a Constitutional right to an attorney? Cases relying on Gideon have come to the conclusion that the general answer is no. Such cases include Scott v. Illinois, 440 U.S. 367 (1979);Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (1981); and Alabama v. Shelton, 535 U.S. 654 (2002).
The case of Scott cited above worked to clarify another court ruling:Argersinger v. Hamlin, 407 U.S. 25 (1972). In Scott, the court held that a criminal defendant could not be sentenced to any term of imprisonment (regardless of how short) unless (s)he had first been afforded the right to have assistance of counsel.
Lassiter is the big case that contemplates whether this extends beyond imprisonment. That case was a family law issue concerning the potential that an indigent mother might have her child removed from her custody by the State. There, the court considered the possibility that depriving a parent of custody over his or her child might be so serious as to invoke the due process concerns typically raised under more traditional Gideon situations. The court in Lassitersaid a lot that we still abide by today. They provided a litmus for determining when indigent civil defendants must be afforded an attorney. More to the instant matter, they determined that the one clear situation where an indigent has a right to counsel is when physical liberty is threatened (i.e. possible imprisonment). Unlike other cases that had suggested only a criminal defendant has a right to an attorney, Lassiter tells us that anyone facing the possibility of jail has a Constitutional right to counsel.
Alabama acts as a reinforcement of Lassiter, confirming that what triggers a right to counsel is not the limited scenario of a criminal defendant facing a trial, but anyone facing imprisonment at any stage. In this case, the matter was one of a suspended sentence. The Supreme Court determined that even after being convicted, an indigent still has a right to counsel when issues of sentencing may arise that would alter the inmate’s physical liberty.
All of these cases point to a common, unifying theme. Your right to be free is a fundamental one; one that we have determined as a society cannot be cast away lightly. This right is indeed so important that the courts have required federal and state governments to ensure that the poor have a right to legal counsel, regardless of their ability to pay. Without this provision, the deck would be stacked against the defendant from the very beginning, tipping the balance of power in favor of the government and creating a de facto environment of guilty until proven innocent.
B. Indigent Rights in the Civil Contempt Context
The case of Turner v. Rogers raises a really interesting problem, albeit one I do not believe is hard to resolve. The law is very clear in the criminal context and almost as clear in the civil. Because civil cases do not usually have any bearing on a person’s physical freedom, the courts have usually held that there is no right to a court-appointed attorney should the defendant be indigent. Now, there is a rather compelling argument that this rationale is flawed (for a thorough treatment, see this article in the Georgetown Journal on Poverty Law and Policy) but the courts have not been quick to open the doors wider than they already are.
The situation in Turner mixes the two a bit. What is ordinarily a straightforward civil action for money (specifically, child support) crosses into the criminal world to the extent that it threatens defendants with jail time should they not make good on their legal obligations.
On the surface, it seems like a fair enough thing to do, at least if we view it in the context of a nefarious parent intentionally trying to duck child support without any good reason. To that end, many have advanced the argument that jail time in such a situation is not comparable to jail time in a criminal action because the defendant “holds the key to his release.” What does that mean? It means that as soon as the defendant pays his/her child support, (s)he is free to leave prison. Unlike a criminal matter where the judge sets a term of prison time that a defendant must accept, the idea here is that a defendant has direct control over his or her incarceration.
This argument makes little sense in the indigent context because that “key” to freedom is money … something a defendant who is poor clearly does not have. For that reason, a large number of advocates have likened this case to a debtor’s prison, where the defendant (in this case, Mr. Turner) is imprisoned simply because he cannot pay. I think this analysis is correct but that the argument is not even necessary. It is quite clear that the courts have deemed right to counsel to be crucial in any situation where a person might be imprisoned. The notion that it would apply in every context except the civil contempt hearing makes little sense if any. Indeed, it is every bit as important in a civil contempt hearing because jail time is a highly likely result unless a defendant can prove his or her poverty. In other words, there is a presumption of guilt in the absence of evidence to the contrary. If we believe defendants deserve attorneys when they are presumed innocent, why in God’s name wouldn’t we believe that defendants deserve counsel when the default option is that they will be ruled against?
To me, the matter is quite clear. An indigent is already a member of a vulnerable population. Beyond just lacking the actual resources (i.e. money) to litigate matters effectively, they generally lack the knowledge of where or who to turn to in getting help. The argument that an indigent somehow has more control in the civil contempt setting or that such a situation is distinguishable from the point of Gideon is a grand stretch.
III. PREDICTIONS & IMPLICATIONS
As I noted earlier, the Supreme Court has agreed to hear Turner v. Price, which means that we will (hopefully) get an answer to what rights an indigent has in the civil contempt setting. Whether or not the answer will be favorable to indigents and how widespread its implications will be are what I will now discuss.
A. How The Court Might Rule
I think the case is not that difficult of a matter to resolve. Generally, the caselaw is fairly clear on the matter that when imprisonment is a possibility for a defendant, there is a right to counsel that a government must support. However, the Court asked both parties to answer an additional question in their briefs: does the US Supreme Court have proper jurisdiction?
What’s going on here? I’m no veteran reporter of the Supreme Court nor do I have an “in” at the justices’ chambers. However, my guess is that this is indicative of a tension between justices regarding the 14th amendment issue. I suspect one or more of the justices were hesitant to consider this a constitutional matter and agreed to grant cert on the condition that the parties persuade them of it. Based on the same logic I cited in the previous section, I think the due process matter is a fairly obvious one. Nevertheless, it would seem that someone on the Court is not so convinced.
It may also be that the court is looking for a way to rule in South Carolina’s favor without overturning the traditional Gideon logic. Attacking Mr. Turner’s claims on their substantive merits will almost certainly redefine much broader conceptions of what an indigent’s rights are and the Court may, for good reason, want to avoid doing that. Now, as to why they’d want to give this one to South Carolina? I honestly don’t know.
My prediction is that, so long as the jurisdiction question doesn’t hijack this case, the Court will rule in Mr. Turner’s favor. The respondent’s arguments are weak and make little sense in the context of the current Gideon landscape (for all of the reasons I noted earlier). On the other hand, the plaintiffs arguments are well-made and on point. Without some major innovation on Ms. Rogers’s part, it seems pretty easy to say this one goes to Mr. Turner.
B. Implications of this Case
The very interesting consideration is what effect this case will have on indigent defense in general. Here, the Court has a lot of power and it is here, that I think it becomes much harder to predict what the court will rule. I said previously that I think this case is a fairly straightforward win for Mr. Turner. But how far will that win go?
Will the Court narrowly construe a finding to apply only in civil contempt cases or will they find that civil defendants more broadly have a right to counsel? They already suggested that circumstances other than jailtime might warrant right to counsel, as we saw in Lassiter. Would they be willing to clarify that in a new opinion or perhaps even extend it? These questions may give us some hope but I doubt that the Court will go very far. That the Court brought in a new hurdle for parties to overcome is suggestive of their cautiousness with this case. Moreover, we know that the court is not especially liberal these days and may not be in favor of a sweepingly progressive change in the way indigent defense is conducted across the country. My prediction is that the court will hold in favor of the plaintiff, but only in the very narrow circumstances of civil contempt proceedings threatening imprisonment.
Even should they rule that way, might it still have an impact on lower courts to further extend an indigent’s right to counsel? I think it is entirely possible but qualify this by noting it really hinges on just how specific the judges are in the final opinion. If they take great care to be specific, I think lower courts will feel necessarily bound to apply Turner v. Rogers in a very narrow set of circumstances. However, if the justices are less careful with their words then I think we might very well see courts running with this opinion.
I think the most realistic assessment is that Turner will lay groundwork for further improvements and extensions of indigent rights. This may and probably will not be the case that makes great advances beyond the limited criminal context. However, it’s an important precursor and building block for future cases. Hopefully, I think we will see Turner as opening the door that had previously been so decidedly shut on any case that wasn’t criminal. And even if that’s all it does, I think it will be a major victory for all of us that are so invested and committed to improving indigent rights.
IV. CONCLUDING REMARKS
I think this case presents an interesting take on indigent rights with a fairly clear answer. What exactly the Court will do is always hard to predict but we may get a better idea once oral arguments are held. And when that occurs (the specific date has not yet been scheduled), you’ll be hearing from me again!