Revisiting Turner v. Rogers.

• Author: Robertson, Ashley

Table of Contents Introduction I. Turner v. Rogers and Its Progeny II. The Right to Counsel at the State Level III. Representation (and the Lack Thereof) in Civil Contempt Hearings A. States That Provide Counsel 1. Positive experiences 2. Negative experiences B. States with No Right to Counsel 1. Organizations that do not represent noncustodial parents 2. Organizations that represent noncustodial parents IV. South Carolina Case Study A. The Structure of Civil Contempt Hearings for Nonpayment of Child Support B. Turner's "Procedural Safeguards" 1. The use of forms 2. Focus on the ability to pay C. Turner s Indirect Impact 1. Reluctance to use incarceration 2. Screening process D. Right to Counsel? 1. The majority view 2. The dissenting view V. Reevaluating Turner v. Rogers A. The Supreme Court 1. The right to counsel 2. Alternative safeguards B. State-Level Reforms C. Practitioners Conclusion Introduction

South Carolina incarcerated Michael Turner four separate times for failure to pay child support. (1) The state uses civil contempt to enforce child support orders and authorizes a jail sentence of up to one year for failure to pay. (2) During Turner's most recent contempt hearing, the clerk of court informed him that he was nearly $6000 behind in child support payments.3 The presiding judge asked Turner if there was "anything [he] want[ed] to say." (4) Turner gave a quick response about his drug addiction and disability before concluding, "I mean, I know I done wrong, and I should have been paying and helping her, and I'm sorry. I mean, dope had a hold to me." (5) The judge responded, "[O]kay." (6) After a brief exchange with the custodial parent, the judge summarily found Turner in willful contempt of court. (7) He sentenced Turner to twelve months in Oconee County Detention Center and set the payment to purge civil contempt at the full balance owed. (8)

Despite facing incarceration, Turner did not have an attorney for any of his contempt hearings. Indeed, South Carolina had no statutory or constitutional requirement that judges appoint counsel in civil contempt cases. Turner challenged that policy, arguing that the Due Process Clause of the Fourteenth Amendment required the state to provide representation. (9) The Supreme Court disagreed. (10)

In 2011, the Court held that there is no right to counsel in civil contempt proceedings so long as the state provides "substitute procedural safeguards" to reduce the risk of wrongful incarceration. (11) Specifically, the Court identified four such safeguards:

(1) notice to the defendant that his "ability to pay" is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status ...; and (4) an express finding by the court that the defendant has the ability to pay. (12) The Court determined that Turner did not receive procedural safeguards that were equivalent to those mentioned and thus held that Turner's incarceration violated the Due Process Clause. (13)

In Turner, the Supreme Court drew a sharp line between civil and criminal cases. (14) If Turner had faced criminal contempt charges, the Sixth Amendment would have guaranteed him the right to counsel. (15) But the Sixth Amendment did not govern Turner's civil case, (16) even though the threat of jail was far from theoretical. A 2005 survey showed that on any given day, South Carolina jails housed over 1500 parents for nonpayment of child support. (17) In 2009, one out of every eight inmates in the state was incarcerated for failing to pay child support. (18) And South Carolina is not an anomaly. Although the state may be an extreme on the continuum, the use of incarceration for nonpayment of child support is widespread. For example, in 2002, an Indiana prosecutor reported that each year the state incarcerated 2400 to 3300 noncustodial parents for nonpayment. (19) In 2010, Georgia jailed 3500 parents for failure to pay child support. (20) States like Georgia and South Carolina do not guarantee the right to counsel, (21) so parents facing jail time must bank on procedural safeguards to "substitute" for an attorney.

Five years have passed since Turner, and virtually no research exists on the real-world consequences or effectiveness of the Court's suggested procedural safeguards. The Court believed that civil contempt hearings are often relatively "straightforward," (22) such that its four suggested safeguards (or their equivalents) could adequately substitute for the right to counsel. (23) But it declined to provide "empirical evidence to support assertions about the complexity of procedures and fairness of alternatives." (24) Instead, the Court borrowed each suggestion from an amicus brief filed by the U.S. Solicitor General's Office. (25) Likewise, commentators have spilled much ink debating the right to counsel in civil contempt cases in the abstract, (26) but no scholar thus far has investigated how state courts have implemented the Court's decision. Neither Turner's supporters, who "cheered" the decision as a positive step forward for access-to-justice reform, (27) nor its critics, who champion a "civil Gideon," (28) have examined how Turners safeguards actually work or whether a right to counsel is feasible in practice.

This Note attempts to fill that gap by documenting how states, judges, and practitioners have responded to the Turner decision. It begins by providing the first comprehensive catalogue of states that guarantee the right to counsel for civil contempt hearings. (29) From there, it surveys sixty practitioners in forty-four states to learn how states handle representation in contempt cases. Finally, it draws on extensive interviews with eight current and former family court judges in South Carolina to assess how the state has implemented Turners mandate.

This Note proceeds in five Parts. Part I summarizes the Court's decision in Turner in more detail and then discusses subsequent developments in state court cases. Part II catalogues the right to counsel in civil contempt proceedings on a state-by-state level. Before Turner, sixteen state courts had held that the federal Constitution requires appointment of counsel in civil contempt cases. (30) This Note finds that many of those states have continued to guarantee counsel despite lacking a constitutional imperative to do so. (31) On the other hand, this Note also concludes that a full twenty states and the District of Columbia do not appoint counsel in these cases despite numerous news reports suggesting that number is five. (32)

Part III drills down into how representation in each state operates as well as what happens when parents proceed pro se. It relies on interviews with sixty legal aid providers, public defenders, and contract attorneys, each of whom has witnessed Turners impact first-hand. First, it surveys the practitioners who handle these cases to evaluate how much of an impact their representation makes. Second, Part III examines states that do not guarantee the right to counsel and asks legal aid providers whether they are able to fill the representation gap. It concludes that many organizations are not. Accordingly, parents in these states must fend for themselves, relying only on Turner's "procedural safeguards" to ensure fair outcomes.

Part IV uses South Carolina as a case study to evaluate how those safeguards operate in practice. It recounts in-depth interviews with eight current and former family court judges. Together, those judges have handled thousands of child support contempt cases and offer significant institutional knowledge about how family courts have implemented the Turner decision.

Part V draws on the interviews, survey responses, and other published sources to recast the debate between a right to counsel and substitute procedural safeguards. First, this Note concludes that the Supreme Court was correct: the right to counsel does not guarantee procedural fairness and may in fact create a false sense of security, particularly where public defenders and contract attorneys lack the resources to provide meaningful representation. Nevertheless, the Court's suggested safeguards, including the "use of a form" to elicit a contemnor's "ability to pay," (33) do not adequately offset the risk of wrongful incarceration. Thus, this Note advocates that the Court revisit Turner and adopt several ready fixes to fulfill its promise. Failing that, this Note also offers states and the private bar more targeted approaches for providing counsel, such as prioritizing representation in modification proceedings.

Ultimately, this Note concludes that Turner took a step in the right direction but that its procedural safeguards have proven insufficient. Unless and until the Court revisits those safeguards, states and practitioners should pay renewed attention to the thousands of parents facing jail sentences without access to representation.

1. Turner v. Rogers and Its Progeny

   In Turner v. Rogers, the Supreme Court considered whether due process requires states to appoint counsel to parents facing incarceration for nonpayment of child support. (34) The Court held that it does not, provided the other party is also unrepresented and the state provides substitute procedural safeguards to reduce the risk of erroneous incarceration. (35)

   The Court began by determining that the state's use of incarceration did not automatically entitle the contemnor to counsel. (36) In doing so, the Court drew a bright line between criminal and civil cases. For criminal cases, the Sixth Amendment grants indigent defendants the right to state-appointed counsel. (37) But civil contempt attempts only to coerce the defendant to comply with a court order, and once the contemnor does so, "he is purged of the contempt and is free." (38) The Court emphasized that in civil contempt...