Triaging appointed-counsel funding and pro se access to justice.

• Jurisdiction: United States
• Author: Barton, Benjamin H.
• Date: 01 March 2012

INTRODUCTION I. TOO MANY NEEDS, TOO FEW DOLLARS A. Underfunding Criminal Counsel: Subverting Gideon 1. Capital Cases 2. Other Felonies 3. Misdemeanors B. The Civil Gideon Movement C. Unacknowledged Tradeoffs and Competing Demands II. TURNER'S TURN TO REALITY A. Gradations of Complexity and Need B. Concerns with Formality and Delay C. Less Intrusive Alternatives III. TWO-AND-A-HALF CHEERS FOR TURNER A. The Wisdom of Not Recognizing a Procrustean Right B. More Sustainable Pro Se Court Reform C. The Implicit Role of Resource Constraints CONCLUSION INTRODUCTION

If appointing some lawyers is good, then appointing more lawyers must be better. At least that seems to be the logic of the civil Gideon movement, which favors appointing counsel in civil cases just as Gideon v. Wainwright required appointing counsel in criminal cases. The impulse is understandable: both indigent and pro se litigants face many hurdles in civil courts, and the stakes can be quite high. (1) But even though criminal defendants do enjoy the Gideon right to counsel, the quality and availability of indigent criminal defense remain hobbled by inadequate funding. Gideon's shortcomings in the criminal context should caution us against assuming that a new judicially created right will alleviate chronic shortages.

Over the last century, Powell v. Alabama, Gideon, and related cases have steadily expanded the Sixth Amendment right to counsel in criminal prosecutions, from a right to retain one's own counsel to a right to appointed counsel in any case resulting in actual imprisonment. (2) Counsel must also meet minimum standards of effectiveness. (3) The services that must be provided have also grown to include expert assistance such as psychiatric examinations in criminal cases raising mental health issues. (4) Civil litigants have had much less success, as the Supreme Court has repeatedly rejected a constitutional right to counsel in a variety of civil proceedings. (5) Rather than giving up hope, however, scholars and activists have continued to advocate for broad civil Gideon rights. (6) Most notably, the American Bar Association (ABA) endorses appointing counsel for all poor people in adversarial proceedings implicating basic human needs, such as food, shelter, safety, health, or child custody. (7) Historically, bar associations' support for expanding Gideon has proven quite influential. (8)

Last year, the Supreme Court reopened the civil right-to-counsel debate by agreeing to hear Turner v. Rogers, in which a pro se mother sued a pro se father for failing to pay child support. (9) The issue was whether the father had an automatic right to appointed counsel before he could be conditionally confined for civil contempt. (10) Many activists hoped that the Court would overturn or narrow its earlier precedents and recognize a categorical right to counsel, at least in civil cases that result in a deprivation of liberty. (11) Instead, all nine Justices rejected the claimed right to counsel, though a five-Justice majority required courts to help pro se litigants navigate the process themselves. (12) In child support proceedings, the majority noted, courts may provide this assistance by (1) giving notice that ability to pay is a key issue; (2) asking defendants to fill out financial disclosure forms; (3) allowing defendants to respond to questions about their finances; and (4) making express findings regarding defendants' ability to pay. (13)

Turner dealt the death blow to hopes for a federally imposed civil Gideon. Thirty years ago, the Lassiter court rejected a civil Gideon right in termination-of-parental-rights cases by a 5-4 vote over a vehement dissent. (14) By 2011, the civil Gideon argument could not garner a single vote. That was true even though the defendant in Turner faced one year in jail and Lassiter in dictum had presumed a right to appointed counsel when physical liberty is at stake. (15) Given the importance of the liberty interest in Turner, the Court's decision leaves little room for advocates to insist that a lesser liberty interest qualifies for Gideon's protections.

Though Turner upset many civil Gideon proponents, (16) we should not lament the decision but instead (mostly) praise it. In rejecting a broad new constitutional right, the Court steered toward more sustainable reform for pro se litigants. The Court's solution is far more realistic than a grandiose new right to counsel. Indeed, funding for counsel is scarce, existing lawyers are already overtaxed, and appointing civil lawyers would siphon time and resources from felony cases, which are typically more important and more complex. In a world of scarce resources, legislatures, courts, and legal aid organizations need flexibility in order to triage cases. Both the Constitution and sensible policy thus favor reserving appointed counsel primarily for criminal cases. Appointment of counsel in civil cases must be selective and discretionary, used only for the most complex and most meritorious cases. While giving everyone a lawyer is an impossible dream, less expensive pro se court reform is far more feasible. Turner did not explicitly discuss the importance of resource constraints, but its holding makes much more sense given the reality of limited funds.

Properly handled, pro se court processes can be cheaper and fairer. Extraordinarily, the Court noted that appointing counsel in pro se civil cases could make the proceedings "less fair overall" and introduce unwarranted "formality or delay." (17) Though that observation is a matter of common sense, the Court's prior case law had consistently praised lawyers' role in guaranteeing just procedures. (18) Turner's changed tune reflects a more mature, more nuanced view of lawyers and the complexity inherent in the adversarial system. If Turner helps to spur new pro se court processes that are simpler and fairer, everyone will benefit.

Part I of this Article surveys the state of the scholarly literature and case law before Turner. Academics had long complained about chronic underfunding of indigent criminal defense while calling for more money across the board. Civil Gideon reformers had likewise called for funding civil counsel programs. But there was little sense that these goals entailed tradeoffs and little emphasis on pro se court reform as a viable, less costly alternative. The same activists sometimes endorsed both of these goals, which are at least in tension with each other, if not outright contradictory.

Part II analyzes Turner. The Court recognized that not all cases are alike: even where the stakes are high, some cases are not complex enough to require a lawyer. It also worried that appointing counsel would add formality and delay, harming innocent parties on the other side of civil proceedings. Further, the Court introduced a new focus on the availability of less intrusive alternatives, notably pro se assistance.

Part III gives two-and-a-half cheers for Turner's shift. The Court wisely avoided creating a Procrustean civil Gideon rule and carefully separated civil from criminal cases. It steered future developments toward more sustainable pro se court reform. And though the Court did not discuss funding limitations, its approach is consistent with the need to triage cases. Criminal cases are more important and more complex, and there is less of a role for lawyers in many civil cases. We cannot and will not provide lawyers to everyone. Turner rightly rejected that impossible dream. It is far more important to fund appointed lawyers in serious felony cases than it is to provide them in, say, housing court. This Article concludes that the task ahead is to make civil lawsuits simpler and more accessible to nonlawyers.

1. TOO MANY NEEDS, TOO FEW DOLLARS

   In the decades preceding Turner, scholars and advocates challenged the dearth of appointed counsel and resources on a variety of fronts. Capital defendants, they noted, suffer from woefully inadequate funding for lawyers and support services. Other felony and misdemeanor defendants likewise have overworked, underfunded lawyers who quickly press them to plead guilty. The result is an epidemic of ineffective assistance of counsel. In civil cases, resources are still scarcer. There are few appointed lawyers even in cases with significant stakes, such as divorce, child custody, child support, housing, and immigration proceedings.

   Yet these advocates rarely acknowledged the tension between their competing goals in the criminal and civil contexts. Funding to appoint counsel is limited, and guaranteeing lawyers in more cases will spread existing resources too thin. As it is, criminal defense lawyers risk being ineffective because they have too little time and too few support services. A broad civil Gideon right would thus effectively undercut Gideon itself.

   1. Underfunding Criminal Counsel: Subverting Gideon

      1. Capital Cases

         For almost eighty years, the Supreme Court has recognized a right to appointed counsel in capital cases. (19) Yet, to this day, indigent capital defense remains scandalously underfunded. To guarantee effective counsel, states must offer enough money to attract and retain qualified, experienced lawyers and to give them the investigative, forensic, and administrative support they need. But funding indigent defense, especially capital defense, is hardly a political priority, so attorney compensation is paltry. Capital defenders may be paid flat fees or hourly rates subject to low statutory caps, which may work out to twelve dollars per hour or less. (20)

         Nor is there enough funding for support services. Effective capital defense requires thorough research into the facts surrounding the crime as well as the defendant's background, family, upbringing, mental health, and character. This research necessitates private investigators, paralegals, secretaries, and quite possibly forensic experts, psychiatrists, doctors, and social workers. But the compensation described...