Triaging Appointed-Counsel Funding and Pro Se Access to Justice

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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.
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. Counsel must also meet minimum standards of
effectiveness. The services that must be provided have also grown
to include expert assistance such as psychiatric examinations in
criminal cases raising mental health issues. 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.
Rather than giving up hope, however, scholars and activists have
continued to advocate for broad civil Gideon rights. 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.
Historically, bar associations’ support for expanding Gideon has
proven quite influential.

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. The
issue was whether the father had an automatic right to appointed
counsel before he could be conditionally confined for civil contempt.
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. 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. 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.

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.

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