Triaging Appointed-Counsel Funding and Pro Se Access to Justice
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. Gideonís 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 oneís 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 associationsí 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 defendantsí 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 Courtís decision leaves little room for advocates to insist that a lesser liberty interest qualifies for Gideonís protections.
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Edward K. Cheng