This paper may be the first academic treatment of Tuner. It is part of the University of Pennsylvania Law School Public Law and Legal Theory Research Paper Series, and of the University of Tennesse, Knoxville, College of Law Legal Studies Research Paper Series, and titled Triaging Appointed-Counsel Funding and Pro Se Access to Justice. It is by Professor Ben Barton and Professor Stephanos Bibas.
Its core thesis (on pages 3-4 of the paper as posted) is as follows:
Though Turner upset many civil-Gideon advocates, we should not lament the decision but (mostly) praise it. In rejecting a broad new constitutional right, the Court steered toward more sustainable pro se reform. The Court’s solution is far more realistic than a grandiose new right to counsel would have been. Funding for counsel is scarce; existing lawyers are already overtaxed; and appointing civil lawyers would siphon time and resources from more important, more complex felony cases. In a world of scarcity, legislatures, courts, and legal-aid organizations need flexibility to triage cases. Both the Constitution and sensible policy thus reserve appointed counsel primarily for criminal cases. Any appointment of counsel in civil cases must be selective and discretionary, reserved for the most complex and most meritorious cases. Less-expensive pro se court reform is far more workable; giving everyone a lawyer is an impossible dream. Turner was not explicit about the importance of resource constraints, but its rule makes much more sense in a world of limited funds.
Properly handled, pro se court processes can be cheaper and fairer. Extraordinarily, the Court noted that appointing counsel in these cases could make the proceedings “less fair overall” and introduce unwarranted “formality or delay.” Though that observation is a matter of common sense, over the past eighty years the Court has always praised lawyers’ role in guaranteeing just procedures. Turner’s changed tune reflects a more mature, more nuanced view of lawyers and complexity in our adversary system. If Turner helps to spur new, simpler, and fairer pro se court processes, everyone will benefit (footnotes omitted).
Addressed mainly to the civil Gideon community, the paper urges an appreciation of the opportunity Turner offers to embrace a broad variety of access solutions. Implicit in the analysis is the need for courts to meet sufficient due process standards of accuracy and fairness. The paper also recognizes that civil Gideon advocates will find much in the decision to support the argument for a right to counsel in certain situations. Urged throughout is the need for realistic triage of what situations are in need of the more costly full representation solution. It implicitly raises for the future the toughest question — how is that to be done at both the categorical and the individual level?