But It’s Civil Jail (So It Doesn’t Really Count)

The Supreme Court’s decision in  Turner v. Rogers has launched thousands of words on the lawprof blogs, trying to spin the case into a face off between men and women, wealth and poverty, pro se and representation, all too boring and pointless to make anyone care.  But seeing a post by Norm Reimer on  Concurring Opinions shook me out of complacency.

Many will recognize Norm’s name as the Executive Director of the NACDL, but I remember Norm as the guy down the hall when I first started practicing.  With partner Frank Gould, Norm was a pretty cool lawyer.  As a snot-nosed baby lawyer, I sometimes wandered down the hallway of the 16th floor to ask him a question. He was always happy to help.

Unlike the lawprofs, Norm’s post goes to the heart of the problem in Turner, one that is dismissed by the scholars but can’t be ignored by a trench lawyer. 

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.

Only in the sanitized world of appellate courts can the hardest issue be dismissed with a wave of the hand. Indigency permeates the problem, whether as the ability to pay support or the ability to pay for a lawyer to defend.  It’s like the millionaire criminal defendant, stripped of use of his assets by forfeiture proceedings, who is subsequently convicted, his criminality justifying his having been deprived of the ability to pay for his defense.  At the back end of the sausage making, it all seems so simple.

Norm notes that whenever, in the opinion, the majority is about to crash into the wall that would require them to reach the only rational conclusion possible, that any person whose liberty interest, a benign phrase that means they’re going to jail, regardless of whether it’s dolled up by calling it civil rather than criminal, the Supremes pull out the 1973 decision of Gagnon v. Scarpelli, which holds that defendants aren’t entitled to counsel in probation revocation hearings.  Precedent, you know.

Gagnon was wrong, and repeating it as precedent applied to another jailing doesn’t make it less wrong.

Turner may implicate a wide variety of scholarly issues, but who cares.  What matters most about the decision, like Gagnon, is that a person goes to jail without having a lawyer to defend him because he’s indigent.  And his failure to prove indigence, because he has no one to tell him anything is proved in court, doesn’t mean that he’s not indigent or that it’s straightforward.  The need for counsel is because of the need to defend; the failure of the defense isn’t proven because the unrepresented defendant doesn’t know how to do so.

And calling the jailing of a person “civil” doesn’t mean they put curtains on the cell windows.  Jailing is jailing, and putting lipstick on its doesn’t make it more civil than criminal, an artificial distinction used to deprive the guy going to jail of the ability to defend himself.

So pontificate all you want about the fascinating collateral issues that will keep scholarly folks busy and launch a thousand law review articles.  Guys like Norm (and even me) see a very different point in Turner, that no person should be sentence to jail without a lawyer to defend him.  And that being too poor to afford counsel is a damn poor reason to jail someone.

Cut to its core, that’s the failure of Turner, as no safeguards (whatever that is supposed to mean) are real when a person is thrust into the legal system, facing jail and left to dangle without a lawyer because he’s poor.  That’s the problem that the Supremes needed to fix, and they didn’t.

4 thoughts on “But It’s Civil Jail (So It Doesn’t Really Count)

  1. dave hoffman

    I know you love to contrast law professors with “trench” lawyers (as criminal defense lawyers dominated the bar!), but in this case it’s an unusually silly point even by your standards.

    The entire symposium on CoOp was all about engagement between practicing lawyers and clinicians about what to do post Turner – in terms of a practical strategy for indigent clients. Did you even read it? Or perhaps your trench walls are too high.

  2. SHG

    Indeed, I did read it. And so, I suspect, did Norm. And we saw it differently.  Are we blinded by the trench walls? Or are you too far away to see in the Ivory Tower?  Is your point that Norm’s post is silly, or just that my noting that Norm’s hit the target, the core failure of calling some punishments civil to deny people counsel when all punishments, regardless of how we pigeonhole them, are punishments, and no one should be punished without representation. 

    If the former, I disagree. Norm’s post is hardly silly.  If the latter, I plead guilty. It’s too bad that lawprofs aren’t guilty as well.

  3. dave hoffman

    No, my point is that almost no one who posted in the symposium is a law professor, so criticizing the symposium as an academic exercise seems pretty odd.

  4. SHG

    The only ones I read were by lawprofs.  I believe you that there were others, but I didn’t see them.

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