Some useful ideas from the Turner v. Rogers blog.
David Udell on the Need for a Justice index
At the National Center for Access to Justice at Cardozo Law School we are building partnerships with courts and communities to develop a Justice Index and Representation Index – new systems that can make such information readily available via the internet. Of course, work is needed to create capacity both to track the information and to present it. But it is important to do this. Establishing access to relevant data and best practices, comparable over time and across jurisdictions, will highlight areas for reform, help to educate the public about the important roles of the courts, legal services and indigent defense services in our society, and help to realize the promise of “fundamental fairness.”
Russell Engler on a Basis for Cautious Optimism.
In the long run, the impact of the Turner decision will be less about its language and more about its application at the state and local level. If the disappointing portions of Turner lead states to roll back their existing provisions for counsel by declaring their procedures sufficient under Turner, or if what is meant by adequate procedures is little more than a rubber stamp, the decision will prove to be a devastating one indeed. If, instead, the decision prompts state courts, legislatures, access to justice commissions and bar associations to engage in a careful examination of the procedures where basic human needs are at stake, and provide counsel where the procedures are lacking, the law is complex or the litigants are on the wrong side of a power imbalance, the decision might prove to be the touchstone for reforms that further access to justice and lead to an expansion of a civil right to counsel.
Jim Baillie on the Empirical Research Opportunity.
So with this situation we have an opportunity for some legal and sociological research on these systems as they have functioned and as they evolve:
1. How do the outcomes compare between those states that provide counsel and those which do not as to (a) use of civil contempt, (b) incarceration and (c) payments?
2. Which “substitute procedural safeguards” (as suggested in the Supreme Court’s opinion) are in use: (a) a notice that gives the respondent warning of the risk of jail, (b) forms to elicit information about the ability to pay, (c) opportunity for the respondent to speak at a hearing, and (d) express findings by the court imposing the penalty? What is the efficiency and the fairness of these procedures and others that may be tried?
Marty Guggenheim on Some Optimism after Turner
I think it very likely that intermediate appellate courts will pay closer attention to the result in Turner than to the rule that the Constitution does not require that indigent parties be given counsel in all civil contempt proceedings. The result, to reiterate, is that the Court found a violation of the Constitution. Appellate judges throughout the country now have ample tools to review outcomes in cases where a party was unrepresented by counsel. For the first time, we now know the Due Process Clause has some teeth.
And, finally, Laura Abel on A Force For User-Friendly Courts or Empty Promises
There could be salutary results. Ideally, lower courts will develop better forms for pro se litigants, open pro se assistance centers, and educate their judges and court staff about how to work with pro se litigants, particularly those who have low literacy, limited proficiency in English, and other special needs. This will help the courts operate more accurately and efficiently. It will improve litigants’ experience with the courts, and enhance the public’s trust in the legal system.
But without close scrutiny by the courts and the bar, this could all be a farce. To satisfy the Turner opinion, the proceedings that the courts implement must truly allow unrepresented parents to demonstrate their inability to pay. Civil legal aid lawyers are familiar with the obstacles their clients face in accessing the court system. They need adequate funding to enable them to monitor the proceedings in their jurisdictions. Bar associations and local law schools should play a monitoring role, too. It is time to get to work.
The SCOTUS blog collects some more debate.
Turner v. Rogers, in which the Court held that an indigent parent facing the prospect of incarceration for his failure to pay child support does not have an automatic right to counsel, also remains the subject of debate. The Atlantic’s Andrew Cohen deems Turner – which he describes as “Gideon v. Wainwright meets the Lifetime Channel” – the “most compelling opinion of the day” from Monday. At Concurring Opinions, Russell Engler argues that, “[f]rom an Access to Justice and Civil Right to Counsel perspective,” Turner “provides a basis for cautious optimism despite the opinion’s flaws.” Similarly, in a post at ACSblog, Rebekah Diller sees the decision as “a mixed result for the rights of indigent parents.”
The blog continues — Comments are very welcome.