Article. Bonus track. Abstract:
The
United States Supreme Court’s decision in Turner v. Roger created a stir
in the civil-right-to-counsel and access-to-justice communities. A
unanimous Court ruled that there was no categorical right to counsel
under the Due Process Clause in a civil contempt case based on failure
to pay child support, even where the contemnor faced incarceration. The
majority nonetheless found that South Carolina’s procedures violated
due process.
Some commentators decried the Court’s refusal to
recognize a categorical right to counsel, while others praised that
decision. Some focused on the promising implications, from an
access-to-justice perspective, of the majority’s decision to recognize
that the question of appointment of counsel is tied to the fairness of
the underlying procedures. Others feared that the decision might
foreshadow a rollback in the number of civil proceedings in which states
currently recognize a right to counsel. The responses suggest that,
while the decision represents a civil-right-to-counsel “loss,” it might
well represent an access-to-justice “win.”
Despite the
presumptive importance of a Supreme Court decision, the trends that form
Turner’s backdrop are likely to have far greater impact on a civil
right to counsel and access to justice than the decision itself. The
Supreme Court infrequently addresses these issues, while state courts,
state legislatures, and state access to justice commissions regularly
grapple with the flood of unrepresented litigants in the courts.
Whether Turner proves to be a watershed or a footnote, the success of
access-to-justice initiatives, including an expanded civil right to
counsel, will likely be determined in other arenas.
This article
begins by describing Turner, the access-to-justice backdrop against
which Turner was decided, and scholarly responses to the decision. The
article next revisits a comprehensive access-to-justice strategy I have
articulated elsewhere that is consistent with the logic of Turner. The
three-pronged strategy involves (1) expanding the roles of the key
players in the court system to promote meaningful access, (2) utilizing
an array of assistance programs short of full representation by counsel,
paired with rigorous evaluation of the programs to identify the
scenarios in which they can sufficiently protect the interests at stake,
and (3) an expansion of a civil right to counsel where the lesser steps
cannot afford meaningful access. Because the true meaning of Turner
will emerge only over time, the success of the access-to-justice
initiatives that formed Turner’s backdrop will be more likely than the
Turner decision itself to achieve the goal of meaningful access. The
article illustrates the way in which progress on an array of
initiatives, consistent with all three prongs of the comprehensive
strategy, is underway. The article concludes with observations and
questions that are implicit in Turner but which must be articulated and
answered to help assess whether those without counsel can receive
meaningful access to justice in the courts in the post-Turner world.
While the solutions depend on the coordinated efforts of many actors in
the public and private sectors, the courts themselves, as Turner
suggests, must play a crucial role.