Author: Norman Reimer

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Turner v. Rogers: The Right to Counsel Haunted by the Ghost of Gagnon

From the criminal defense practitioner’s standpoint, the Court’s decision betrays naïve simplicity and a breathtaking disconnect from the real world.   The first of the three reasons cited against the Due Process Clause requiring the State to provide indigents with counsel in civil support contempt proceedings is that the critical issue is likely to be the defendant’s ability to pay.   The Court blithely notes that the question of a defendant’s indigence “is sufficiently straightforward.”  Slip Op. 13. Nothing could be further from reality.

The issue of the ability to pay is inexorably bound up in questions of intent – generally the thorniest of issues to resolve.  Other bloggers, notably John Pollock and Mary Schmid Mergler, thoroughly and effectively address this issue.  Criminal defense practitioners well know that the question of an individual’s ability to pay a fine or restitution is often inextricably interwoven with myriad issues that may involve medical issues, mental health issues, addiction, and an array of factual circumstances.  Indeed, it is not uncommon when litigating an alleged violation of probation to rely upon fact witnesses and experts to demonstrate to the court that the failure to pay has not been willful.  The guiding hand of counsel is an indispensable aid.   Those who hover at the edge of abject poverty are usually the least capable of marshaling the evidence necessary to demonstrate a legitimate excuse for non-compliance.

Indeed, it was while thinking about litigating these issues on behalf of criminal clients in probation violation proceedings that I was struck by the Court’s reliance upon the Gagnon case, which held that there is no right to counsel at a probation revocation hearing.   Gagnon v. Scarpelli, 411 U.S. 778 (1973).   On three occasions,  just as it seemed that the Court was on the precipice of finding that a right to counsel in civil non-payment support proceedings is constitutionally required, the Court cited Gagnon.   Slip Op. at 9 – 10, 12-13.  The last of these cites immediately follows a paragraph that notes the important liberty interest at stake and references studies establishing the prevalence of the “ability to pay” question and that courts are often remiss in resolving that core question.   These compelling factors are dismissed with a citation to Gagnon as authority for the proposition that the Due Process Clause does not always require the provision of counsel in civil proceedings where incarceration is threatened.  Slip Op. 12. Indeed, the Court’s analysis in Turner closely tracks the analysis in Gagnon.

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