Prison is prison.

Author:Coleman, Brooke D.
Position:Right of counsel availability should be determined by legal consequences, not whether proceedings are criminal or civil - III. Turner v. Rogers through Conclusion, with footnotes, p. 2427-2455

    The issue of whether indigent individuals facing incarceration should have a right to counsel in civil cases was recently presented to the Supreme Court in Turner v. Rogers. (196) The case asked whether an indigent father who had failed to make his child support payments in violation of a court order had a right to counsel in a contempt hearing--a hearing that resulted in his incarceration. (197) In Turner, the Court could have dispensed with its doctrine-oriented approach, and found a right to counsel for all indigent individuals facing prison, but it did not. This Part will discuss the distinctions between civil and criminal contempt, the background of civil contempt in the child support context, the basic facts of Turner's case, and the Court's ultimate decision in Turner.

    1. Civil vs. Criminal Contempt

      The distinctions between the law on assistance of counsel in the criminal and civil context are especially pronounced in contempt. This is because the line between criminal and civil contempt is often quite fuzzy. (198) In simple terms, courts can use criminal contempt to punish behavior. It is a punitive power courts have to make sure that their authority is not flouted. In other words, the power is for the benefit of the court. (199) In contrast, civil contempt is remedial, not punitive, and it is for the benefit of the complainant, not the court. (200) This has led to the assertion that a civil contemnor holds the "keys to their own prison door." (201) Because the court is only compelling the contemnor to do something that is arguably within his power, civil contempt is not viewed as punishment. After all, one just complies with the court's order, and the contempt is over.

      This key distinction between the two modes of contempt has led to each developing different procedures and consequences. Most of the rights associated with a criminal prosecution apply to criminal contempt. (202) This includes the right to an attorney and the right to an immediate appeal. (203) This is not true for civil contempt. The Court has refused to expand the rights that attach to criminal proceedings into civil contempt. (204) As this Article discusses, there is no right to an attorney. But, there is also no right to an immediate appeal, no right to a jury, and no right to anything beyond a summary hearing. (205)

      One might be assuaged that the procedural differences are justified because, in the civil context, the contemnor is not punished. Yet, in addition to monetary sanctions, courts often imprison contemnors until they comply with the court order. As explained in the next Section, civil contempt orders in the child support payment context are a good example of how civil contempt can work. If the parent-debtor misses a payment, he is held in contempt and imprisoned. If the parent-debtor pays the outstanding debt, he is freed, but if he does not, he remains in prison. (206)

    2. State Involvement in Enforcement of Child Support Orders

      In order to understand the issues involved in Turner, it is important to know how the state becomes involved in child support payment collection. What follows is a brief summary of that system. (207)

      States are critical players in the collection of child support payments not just because of their social welfare concerns regarding their citizens. Their primary motivation was and continues to be receiving federal funding for their social welfare programs. Under both Temporary Assistance for Needy Families ("TANF") and its precursor, Aid to Families with Dependent Children, Congress requires states receiving federal funds to set up a system for child support enforcement. (208)

      More specifically, under Title IV-D, adopted by Congress in 1975, Congress required states to adopt a plan for collection of child support and to have that plan approved by the Secretary of Health and Human Services. (209) Each state, through its plan, is required to set up a system to track down noncustodial parents, establish paternity, and collect child support where the children are receiving TANF benefits. (210) Benefit recipients are required to participate in these enforcement efforts and must assign the rights to any funds that might be collected to the state or federal government. (211) Collected funds are generally used to reimburse the state or the federal government for the assistance it had already provided to that family under TANF. (212) Moreover, once the state is assigned the right to the funds, it is empowered to use all applicable state processes to collect those funds, including wage garnishment, state income tax intercepts, expedited processes for obtaining and expediting support orders, criminal prosecution, and contempt. (213)

      However, Congress has never authorized funding for the incarceration of delinquent individuals, nor has it provided funding for counsel for indigent defendants who are subject to hearings in order to enforce the support payments. (214) That cost, if any, falls completely to the state. Thus, the incentive for a state to enforce the payment of child support for its citizens receiving aid is quite high. Yet, its incentive for providing counsel within the context of an enforcement proceeding is lower. (215)

      In South Carolina, pursuant to all of these federal laws and regulations, the state adopted Family Court Rule 24. Because it receives federal funding for its administration of the TANF program, the state tracks the child support payments made by non-custodial parents of TANF children. (216) Under Rule 24, the clerk of the court has the authority to track these accounts, and if she sees an account in arrears, she issues a rule to show cause. (217) The rule to show cause sets a hearing date before a judge and directs the parent-debtor to appear at that hearing. (218) If the parent-debtor pays, the hearing is cancelled. However, if the parent-debtor does not pay, a hearing is held to determine why and what to do next. (219)

      Under state law, the court has the authority to hold the parent-debtor in contempt for what it considers to be a willful violation of the child support order. (220) The rule to show cause is considered prima facie evidence that the debtor-parent has failed to pay child support in accordance with the terms of the court's order. (221) In other words, it is evidence of the parent-debtor's willful failure to pay. Thus, in these hearings, the debtor-parent has the burden of establishing the failure to pay was not willful. (222) This is a highly factual determination, and the parent-debtor is expected to explain in writing and/or bring evidence of his inability to pay. The parent-debtor must convince the court that he is unable to pay and that the inability to pay is involuntary. (223) This can be shown through evidence of dismissal from a previous job, evidence of efforts to find additional employments, statistics of unemployment rates in the area, and evidence of barriers to employment such as lack of education, mental illness, or physical injury. (224)

    3. Turner's Failure to Pay Child Support Results in Prison

      Michael Turner and Rebecca Price gave birth to a baby, referred to as B.L.P., a minor child, sometime in 1996.225 The state of their relationship after the birth of their child is unclear, but it does not appear that they were together for long because Turner married another woman, Jennie Turner, in 1999.226 Sometime in 2003, Rebecca Price sought financial assistance from the South Carolina Department of Social Services (DSS) through the federal TANF program. (227) As part of the program, Price was required to aid the state in determining the paternity of her child, B.L.P. (228) She did so, and the state determined Turner was B.L.P.'s biological father. (229) Following that determination, the Oconee County Family Court entered an "Order of Financial Responsibility," which required Turner to pay child support payments to Price in the amount of $51.73 per week. (230)

      From 2003 to 2005, Turner periodically paid his child support obligations, but he did have some interactions with DSS and family court. (231) During that two-year period, he received four rules to show cause. (232) He appeared at those hearings and was sometimes held in civil contempt and jailed for brief periods of time. (233) The judge also ordered his wages garnished, and in some cases, the payments were made on Turner's behalf by someone else. (234)

      During this period, in 2004, Rebecca Price terminated her public-assistance payments. (235) So although any payments Turner made were forwarded to DSS in the beginning, after 2004, they were forwarded directly to Rebecca Price. (236) This did not mean, however, that the state stopped enforcing the order. Quite the contrary, the case continued to be handled as a "Title IV-D" case. (237) This meant that DSS continued to automatically monitor Turner's payments, and it continued to issue rules to show cause whenever Turner was in arrears.

      In 2005, the state did just that. Turner did not appear for a prior hearing, so when he showed up for a later hearing in September 2005, the judge held him in contempt and sentenced him to six months in prison. (238) Turner was unable to pay the support obligations and served the entire six month sentence. (239) When he was released in January 2006, he owed more than $1900. (240) Two months later, another rule to show cause was issued against Turner, and the court determined his wages should be withheld. (241) When he continued to miss payments, the court issued a bench warrant for his arrest. (242) He was arrested in December 2007. By that time, Turner owed almost $6000. (243) At the January 2008 heating regarding this amount, Turner was once again unrepresented. The judge asked him if he had anything to say, and he responded with the following,

      Well, when I first got out [of jail in 2006], I got back on dope. I done meth, smoked pot and everything else, and I paid a little bit here and...

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