Prison is prison.

AuthorColeman, Brooke D.
PositionRight of counsel availability should be determined by legal consequences, not whether proceedings are criminal or civil - Introduction through II. Narrative Disparity and the Doctrine-Oriented Approach, p. 2399-2427

Two indigent men stand before two separate judges. Both will be sent to prison if they lose their cases. One receives appointed counsel, but the other does not. This discrepancy seems terribly unjust, yet the Supreme Court has no problem with it. It recently affirmed in Turner v. Rogers, that where an indigent individual is subject to criminal charges that can result in incarceration, he has a right to appointed counsel, but where an indigent individual is subject to civil proceedings where incarceration is a consequence, he does not. In other words, criminal and civil proceedings have different rules, and the right to appointed counsel is no exception. This Article argues that because the consequence of these proceedings is exactly the same, the right to appointed counsel should be the same. Prison is prison. This consequence, and not just doctrinal distinctions, should guide the Court's analysis in deciding whether an indigent individual receives appointed counsel. By systematically examining the Court's narratives in both criminal and civil right-to-counsel cases, this Article seeks to determine why the Court continues to treat the same situation so differently. The Court states that it is driven solely by doctrine, but it uses radically different language to discuss the individuals, attorneys, and nature of the proceedings in the criminal versus civil setting. This Article argues that the Court's different goals in the criminal and civil context better explain the Court's approach than doctrinal distinctions alone. With criminal cases, its goal is legitimacy, while with civil cases, its primary goal is efficiency. This Article questions the Court's "doctrine-oriented" approach in the civil context, and argues that what the Court is really doing is allowing its treatment of cases in the broader civil justice system to affect its jurisprudence in this context. It does this even when the consequence of a typical civil case is so different. After all, the result in a case like Turner/s prison, not monetary damages or injunctive relief Instead of taking this doctrine-oriented approach, this Article argues that the Court's analysis should be "consequence-driven." Where prison is the consequence, the Court's underlying analysis of right to counsel should be the same whether the proceeding is criminal or civil Using the Court's decision in Turner, the Article shows how a consequence-driven approach could have changed the result in that case.

INTRODUCTION

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law .... He requires the guiding hand of counsel at every step in the proceedings against him. (1) The introduction of counsel into a ... proceeding will alter significantly the nature of the proceeding.... Certainly, the decisionmaking process will be prolonged, and the financial cost to the State ... will not be insubstantial. (2) Two men stand before judges in two separate courtrooms. They are indigent so they cannot afford a lawyer. Each judge decides that counsel should not be appointed to them and proceeds to hold their hearings. They are each sentenced to a year in prison for their alleged offenses. After sentencing, they each find pro bono attorneys and appeal their cases to the Supreme Court. In the case of the first man, the Court determines that the failure of the trial court to provide counsel was fatal. After all, "[c]ounsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly...." (3) In the case of the second man, however, the result is markedly different. There, the Court rejects the requirement of counsel, holding that the issue in his case was "sufficiently straightforward to warrant determination" without the help of an attorney. (4) How is it that two men--subject to the same prison sentence--can be treated so differently? The answer is surprisingly simple. One has been criminally charged while the other is subject to a civil proceeding.

This Article is the first to argue that prison is prison (5)--that the consequences of criminal and civil proceedings, not any facial differences between the two, should govern whether the right to counsel attaches. It fills a gap in the literature on Civil Gideon (6) to show that the Court's justification for treating criminal and civil cases differently does not rest on solid ground. This Article systematically examines the narratives the Court uses regarding right to counsel in the civil and criminal context. By laying out the Court's diametrically-opposed language, this Article confronts how differently the Court describes what lawyers contribute to the adjudication process. This Article argues that the Court must know that it is being inconsistent, but it accepts this inconsistency as the necessary means to achieve different results in the two regimes. On the criminal side, the Court is primarily concerned with ensuring the system is legitimate. On the civil side, however, the Court is concerned with efficiency. These end results--legitimacy in the criminal context and efficiency in the civil one--drive the Court's persistent use of opposing narratives in what are otherwise identical situations.

Gideon v. Wainright, (7) and the foundational right to counsel it created, will celebrate its fiftieth anniversary this year; yet, an untold number of indigent individuals in the civil justice system will have nothing to celebrate. The Court recently confirmed in Turner v. Rogers that indigent individuals in civil cases have no right to counsel, even when prison is the consequence. (8) The Court's reasoning is based on doctrinal differences--distinctions driven by the Sixth and Fourteenth Amendments. However, many scholars have argued that the reasoning for providing counsel in the criminal context equally applies in the civil one. (9) The issues in civil cases can be complex and the interests at stake significant. (10) What has yet to be critically examined is why--beyond doctrinal distinctions--the Court uses such a different approach, and importantly, such different narratives when it confronts the right to counsel in the criminal context versus the civil one. This Article argues that the Court's reasoning is affected by its general civil justice jurisprudence. The push for efficiency in traditional civil litigation has resulted in the Court's distrust of the civil justice system and its lawyers as well as significant concern regarding cost. Instead of taking this "docrtine-oriented" approach, this Article argues the Court should be "consequence-driven." Where prison is the ultimate consequence, there is simply no justification for treating the right to counsel differently.

Part I of this Article explains the doctrinal differences between the right to counsel in the criminal and civil settings. Part II exposes the variant narratives the Court uses when it describes why lawyers might or might not be necessary to criminal and civil proceedings. This Part also examines why the Court uses different language about the proceedings, the individual, and the value of lawyers when discussing the right to counsel in the civil context versus the criminal one. It argues that the Court's use of doctrine-oriented language in civil incarceration cases is driven by its treatment of cases in the broader civil justice system. That treatment has affected all civil litigation, including proceedings where prison, not monetary damages, is the result. Part III introduces the Court's recent decision in Turner v. Rogers. It argues that the Court chose to adhere to a doctrine-oriented approach even when Mr. Turner was repeatedly subject to significant incarceration. Next, in Part IV, this Article argues that the Court should have used a consequence-driven approach. When incarceration is the consequence, the Court should analyze the issue of right to counsel in a similar fashion without regard to whether the party is subject to criminal or civil proceedings. This Article then uses the Turner decision as an example of how a consequence-driven approach would have resulted in the Court finding a right to counsel in that case. Finally, in Part V, this Article addresses the concerns attendant to a consequence-driven approach and argues that even with these concerns, such an approach is justified.

  1. HISTORY OF RIGHT TO COUNSEL IN THE CML AND CRIMINM. CONTEXT

    There are a number of differences between criminal and civil proceedings, both substantively and procedurally. (11) This Articles focuses on what is a considerable keystone of our criminal justice system, yet a largely nonexistent aspect of our civil justice system--the right to assistance of counsel for indigent individuals. The Court's recent decision in Turner v. Rogers brings the issue of assistance of counsel in the criminal versus civil setting to the fore. (12) Before discussing the Court's decision in that case and how it relates to the Court's decisions in the criminal setting, this Article briefly explains the history of how the right to counsel has developed in both the criminal and civil settings.

    1. Criminal: The Sixth Amendment

      The right to counsel in federal courts under the Sixth Amendment (13) was well-established by the 1930s. (14) The Court was reticent to incorporate the Sixth Amendment and apply it to the states, however. (15) A case in the early 1930s indicated the Court might be willing to move in that direction. In Powell v. Alabama, (16) nine young African American men were charged with raping two white teenage girls. (17) The men were tried in state court and sentenced to death. (18) The trial court never asked whether they could procure counsel and only assigned them counsel on the day of trial. (19) The Court addressed...

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