New Avenues for Right to Counsel Reform Necessary After Turner Decision

Already clearly established by the Supreme Court before this week’s decision in Turner v. Rogers was the fact that punishment cannot be imposed in a civil contempt proceeding for noncompliance with a court order, if the defendant is not able to comply with that order. Thus, Turner, who was imprisoned for one year for failing to pay court-ordered child support, should not have been imprisoned since he was unable to pay.

Today’s opinion in Turner v. Rogers oversimplifies this inability-to-pay defense, failing to appreciate the factual and legal complexities that may arise with such a defense. The Court’s opinion takes several paragraphs to describe the “highly complex system” designed to assure payment of child support. Yet, when it comes to civil contempt proceedings—often the last step in that system—the Court turns a blind eye to the complexity. Instead, the court merely states, “[The question of defendant’s ability to pay] is often closely related to the question of the defendant’s indigence.” Slip Op. at 13. And the Court suggests that the defendant can just be provided with “substitute procedural safeguards” like filling out a form about his assets and being given the opportunity to answer questions about his financial status.

Turner actually received process very close to these “substitute procedural safeguards.” Turner did fill out a form, see Pet. Reply Brief at 14-15, and was given an opportunity to make a statement in open court to the judge about why he had not complied with the child support order. Slip Op. at 3. Indeed in a footnote in his dissenting opinion, Justice Thomas notes: “Because the family court received a form detailing Turner’s finances and the judge could not hold Turner in contempt without concluding that he could pay, the due process question that the majority answers reduces to a factbound assessment of the family court’s performance.” (Slip Op. [Thomas, J., dissenting] at 7 n.3.) I do not mean to suggest that Mr. Turner received due process. Rather, these “substitute procedural safeguards” led to an inaccurate factual finding by the judge in Mr. Turner’s case, because an inability-to-pay defense is harder than it looks.

The facts in Turner’s own case demonstrate that an inability-to-pay defense is not as cut-and-dry as the Court seems to believe. Other state courts have rejected this defense and found civil contemnors’ nonpayment of child support obligations to be willful in situations where the noncustodial parent voluntarily quits his job, or when he pays other obligations before satisfying his child support obligations. Courts and clerk’s office may offer some assistance in how to present evidence of indigence, but complicated legal questions inevitably arise: Must the defendant sell an asset, like a car, if the proceeds could allow him to pay his obligations? What are expenses the defendant is allowed to make prior to child support? Does the defendant have an obligation to minimize those expenses, e.g., move into a cheaper living situation if one exists and the money saved could be put into child support payments? While Turner’s counsel as well as amici briefed these issues, noting the factual and legal questions that may arise in establishing an inability-to-pay defense, the point was lost on the Court.

The assistance of effective counsel helps the defendant make sense out of all of the factual and legal complexities in a civil contempt proceeding. And, The Constitution Project continues to support the recommendation of its National Right to Counsel Committee that fundamental fairness dictates that counsel be appointed in cases where defendants may lose their liberty. Thus, our continued goal, even in light of the Turner decision, will be to promote the provision of counsel in such proceedings. We will encourage those states that have wisely already chosen to provide counsel in such proceedings to keep doing so. We will be monitoring state legislatures for any activity about cutting such services, and supporting campaigns to keep counsel in such proceedings. We will also be talking to policymakers in states like South Carolina, explaining that while the U.S. Supreme Court may not require that the state appoint counsel in these proceedings, counsel leads to more accurate determinations about ability-to-pay—thus, saving the state from wasting taxpayer resources on imprisoning an individual who does not deserve to be there.

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1 Response

  1. The complexity of ability to pay determinations in proceedings to establish child-support orders points to a more respectful interpretation of the Court’s opinion. I think that a simple finding of present ability to pay is what the Court defines as one substitute due-process safeguard.