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.

If I ever was familiar with the Gagnon case, I have long since forgotten it.  As someone who practiced criminal defense for nearly three decades in the state and federal courts in New York, on numerous occasions I was assigned to represent indigent defendants in probation revocation proceedings.   This was not an act of largesse by the courts.  State and federal laws require it.   The Federal Rules of Criminal Procedure require that the alleged violator must be advised of the right to counsel and the right to the appointment of counsel if he or she cannot afford it at each phase of the proceeding, including the initial appearance, the preliminary hearing and the final revocation hearing.  Fed R. Cr. P. 32.1(a)(3); 32.1(b)(1)(B)(i); 32.1(b)(2)(D).  New York law similarly entitles the alleged violator to counsel at every stage of the proceeding.  NY Crim. Proc. Law 410.70(4).   Although I have not researched the question for this blog post, I am fairly certain that New York’s approach is not unique.

The role of counsel at these violation proceedings is vital.   In many respects they are closely analogous to the proceedings against Michael Turner.  Indeed, often the alleged violation is for non-payment of restitution.   While the Court in Gagnon found that there was no constitutional requirement of counsel, it also noted that there would be cases in which “fundamental fairness – the touchstone of due process – will require that the State provide at its expense counsel for indigent probationers or parolees.”  411 U.S. at 790.   In fact, while noting that the facts and circumstances that could arise at a revocation hearing “are susceptible of almost infinite variation,” the Court noted that “presumptively” counsel should be required in cases where the subject denies commission of the violation or where there may be justification or mitigation that makes revocation inappropriate. Id.  It is hard to imagine many situations in which a skillful mitigation presentation does not make a difference.

Perhaps by articulating the circumstances in which counsel should be provided, the Gagnon Court paved the way for what is now well-accepted procedure in revocation proceedings, even though the Due Process Clause may not require counsel in all circumstances.  In the end, it may turn out that as jurisdictions consider how to provide the “alternative procedural safeguards” required by Turner in support contempt proceedings, they will conclude that the most reliable and effective of these safeguards is the provision of counsel.    In that regard, my overall view tends toward the optimism expressed by Marty Guggenheim.   This decision may not have provided the pure and categorical constitutional principle many of us sought, but it gives great impetus to legislatures and appellate courts to ensure that there is meaningful due process when incarceration hangs in the balance.   The surest, simplest and most consistent means of achieving that is to provide counsel.

Perhaps in the fullness of time, the law will evolve to the point where counsel is statutorily required whenever liberty is at stake.  If so, practitioners in civil contempt proceedings will have a similar reason to forget that Turner, like Gagnon, lamentably stopped short of establishing that practice as a constitutional right.  In the meantime, it is incumbent upon the bar to push courts, court administrators and legislatures toward that goal.

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