What makes criminal litigation different than civil? This is a question I ask at the start of each year in my Criminal Law course. The students and I consider several possible distinguishing characteristics, but we ultimately have to conclude that there is no one factor that absolutely and without exception separates criminal from civil. There are many sorts of proceedings that look in some important ways like criminal litigation, but in other important ways like civil. To the extent that such proceedings are formally labeled civil or criminal seems less a function of the logical application of some clear rule than a matter of convention or convenience.
Although a “quasi-criminal” proceeding may be categorized as civil for some purposes, there will be a natural tendency for litigants to expect and demand some of the procedural protections that are normally associated with criminal litigation.
Take, for instance, the “civil” contempt proceeding at issue in Turner v. Rogers, 131 S. Ct. 2507 (2011).
Turner, the noncustodial father of a child, was subject to a child support order in South Carolina, but fell far in arrears. He was eventually served with an order to “show cause” why he should not be found in contempt of court. If found in contempt, South Carolina law provides that parents like Turner may be imprisoned for up to a year until they make the required payments. This threat of incarceration gives the contempt proceeding a quasi-criminal character, although state law formally treats the proceeding as civil.
Unable to pay and unable to convince the court that he lacked an ability to pay (which would have saved him from contempt), Turner was imprisoned. The proceeding was remarkable for its lack of formality and procedural care:
Turner’s civil contempt hearing took place on January 3, 2008. Turner and Rogers [the mother] were present, each without representation by counsel.
The hearing was brief. The court clerk said that Turner was $5,728.76 behind in his payments. The judge asked Turner if there was “anything you want to say.” Turner replied,
“Well, when I first got out, I got back on dope. I done meth, smoked pot and everything else, and I paid a little bit here and there. And, when I finally did get to working, I broke my back, back in September. I filed for disability and SSI. And, I didn’t get straightened out off the dope until I broke my back and laid up for two months. And, now I’m off the dope and everything. I just hope that you give me a chance. I don’t know what else to say. I mean, I know I done wrong, and I should have been paying and helping her, and I’m sorry. I mean, dope had a hold to me.” App. to Pet. for Cert. 17a.
The judge then said, “[o]kay,” and asked Rogers if she had anything to say. Ibid. After a brief discussion of federal benefits, the judge stated,
“If there’s nothing else, this will be the Order of the Court. I find the Defendant in willful contempt. I’m [going to] sentence him to twelve months in the Oconee County Detention Center. He may purge himself of the contempt and avoid the sentence by having a zero balance on or before his release. I’ve also placed a lien on any SSI or other benefits.” Id., at 18a.
The judge added that Turner would not receive good-time or work credits, but “[i]f you’ve got a job, I’ll make you eligible for work release.” Ibid. When Turner asked why he could not receive good-time or work credits, the judge said, “[b]ecause that’s my ruling.” Ibid.
The court made no express finding concerning Turner’s ability to pay his arrearage (though Turner’s wife had voluntarily submitted a copy of Turner’s application for disability benefits. . . . Nor did the judge ask any followup questions or otherwise address the ability-to-pay issue. After the hearing, the judge filled out a prewritten form titled “Order for Contempt of Court,” which included the statement:
“Defendant (was) (was not) gainfully employed and/or (had) (did not have) the ability to make these support payments when due.” Id., at 60a, 61a.
But the judge left this statement as is without indicating whether Turner was able to make support payments. (slip op. at 3-4)
On appeal up to the U.S. Supreme Court, Turner argued that he should have been given a lawyer.
Turner asserted that the Constitution requires a lawyer in any civil contempt proceeding in which incarceration is possible. Four dissenting justices (Roberts, Scalia, Thomas, and Alito) took the extreme opposite position, that appointed counsel is never required in a civil contempt proceeding. The Court’s majority, however, took a middle-ground position that requires a weighing of many factors on a case-by-case basis.
The Court first made clear that the Sixth Amendment right to counsel does not apply to civil contempt, even if the defendant faces incarceration:
This Court has long held that the Sixth Amendment grants an indi- gent defendant the right to state-appointed counsel in a criminal case. Gideon v. Wainwright, 372 U. S. 335 (1963). And we have held that this same rule applies to criminal contempt proceedings (other than summary proceedings). United States v. Dixon, 509 U. S. 688, 696 (1993); Cooke v. United States, 267 U. S. 517, 537 (1925).
But the Sixth Amendment does not govern civil cases. Civil contempt differs from criminal contempt in that it seeks only to “coerc[e] the defendant to do” what a court had previously ordered him to do. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 442 (1911). A court may not impose punishment “in a civil contempt proceeding when it is clearly established that the alleged contemnor is unable to comply with the terms of the order.” Hicks v. Feiock, 485 U. S. 624, 638, n. 9 (1988). And once a civil contemnor complies with the underlying order, he is purged of the contempt and is free. Id., at 633 (he “carr[ies] the keys of [his] prison in [his] own pockets” (internal quotation marks omitted)). (8)
Although the Sixth Amendment right to counsel did not apply, an alternative basis for appointment of counsel was available: the Due Process Clause. A line of cases has found a Due Process right to counsel in a variety of “civil” settings, although another line has rejected counsel in a variety of other settings. It’s not clear there is much rhyme or reason to this set of cases, and the Turner Court did not in the end rely much on it. Instead, the Court looked to the generic three-factor test articulated by Mathews v. Eldridge for procedural due process claims:
As relevant here those factors include (1) the nature of “the private interest that will be affected,” (2) the comparative “risk” of an “erroneous deprivation” of that interest with and without “additional or substitute procedural safeguards,” and (3) the nature and magnitude of any countervailing interest in not providing “additional or substitute procedural requirement[s].” (11)
With this test in mind, the Court identified three reasons why appointed counsel should not generally be required in civil contempt hearings for nonpayment of child support. (Note how the Court reframed and narrowed the question, suggesting that the analysis of right to counsel must be very attuned to the nuances of the specific type of proceeding.) Here are the reasons:
First, the critical question likely at issue in these cases concerns, as we have said, the defendant’s ability to pay. That question is often closely related to the question of the defendant’s indigence. But when the right procedures are in place, indigence can be a question that in many—but not all—cases is sufficiently straightforward to warrant determination prior to providing a defendant with counsel, even in a criminal case. . . .
Second, sometimes, as here, the person opposing the defendant at the hearing is not the government represented by counsel but the custodial parent unrepresented by counsel. . . . The custodial parent, perhaps a woman with custody of one or more children, may be relatively poor, unemployed, and unable to afford counsel. Yet she may have encour- aged the court to enforce its order through contempt. . . . She may be able to provide the court with significant information. . . . And the proceeding is ultimately for her benefit.
A requirement that the State provide counsel to the noncustodial parent in these cases could create an asymmetry of representation that would “alter significantly the nature of the proceeding.” Gagnon, supra, at 787. Doing so could mean a degree of formality or delay that would unduly slow payment to those immediately in need. And, perhaps more important for present purposes, doing so could make the proceedings less fair overall, increasing the risk of a decision that would erroneously deprive a family of the support it is entitled to receive. The needs of such families play an important role in our analysis. . . .
Third, as the Solicitor General points out, there is available a set of “substitute procedural safeguards,” Mathews, 424 U. S., at 335, which, if employed together, can significantly reduce the risk of an erroneous deprivation of liberty. They can do so, moreover, without incurring some of the drawbacks inherent in recognizing an automatic right to counsel. Those safeguards include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay. . . . [The government] does not claim that they are the only possible alternatives, and this Court’s cases suggest, for example, that sometimes assistance other than purely legal assistance (here, say, that of a neutral social worker) can prove constitutionally sufficient. . . . But the Government does claim that these alternatives can assure the “fundamental fairness” of the proceeding even where the State does not pay for counsel for an indigent defendant. (13-15)
Putting all of this together, the Court stated its conclusion in remarkably narrow terms:
We consequently hold that the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year). In particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards equivalent to those we have mentioned (adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute, relevant information, and court findings).
We do not address civil contempt proceedings where the underlying child support payment is owed to the State, for example, for reimbursement of welfare funds paid to the parent with custody. . . . Those proceedings more closely resemble debt-collection proceedings. The government is likely to have counsel or some other competent representative. . . . And this kind of proceeding is not before us. Neither do we address what due process requires in an unusually complex case where a defendant “can fairly be represented only by a trained advocate.” Gagnon, 411 U. S., at 788 . . . . (15-16)
Turner thus lost when it came to the big legal question, but he actually won when it came to the particularities of his own case. In remarkably summary fashion, the Court concluded that Turner did not have the “alternative procedural safeguards” that would generally obviate the need for a lawyer:
The record indicates that Turner received neither coun- sel nor the benefit of alternative procedures like those we have described. He did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. The court did not find that Turner was able to pay his arrearage, but instead left the relevant “finding” section of the contempt order blank. The court nonetheless found Turner in contempt and ordered him incarcerated. Under these circumstances Turner’s incarceration violated the Due Process Clause. (17)
I’ll conclude with a couple of final thoughts about the jurisprudential significance of Turner.
First, the case reveals a closely divided Court when it comes to “free-standing” due process as a source of criminal procedure rights. The four dissenting justices would limit the right to counsel to what is mandated by the Sixth Amendment. (Two, I might add, seem to take a narrow view of even what the Sixth Amendment requires — Scalia and Thomas suggested that they might not adhere to Gideon and the right to appointed counsel even in cases covered by the Sixth.) But a narrow majority is willing to look to the Due Process Clause as a source of unenumerated rights for defendants.
Second, at the same time, this majority coalition seems unwilling to adopt expansive rules based on the Clause. We are left with a very narrow, very qualified rule on civil contempt proceedings to enforce child-support orders. The rule’s many contingencies mean that there will be plenty of room for litigants in future cases to argue about how to apply it even in only subtly different fact patterns.
The approach here reminds me of J.D.B., the subject of my last post, in which the same five justices rejected the call of the four dissenters to maximize the simplicity and clarity of the Miranda rule. There seems to be a fundamental disagreement on the Court regarding the jurisprudential value of simplicity and clarity . . . at last outside the context of the Fourth Amendment — recalling the large majorities (7-2 and 8-1) that emphasized these goals in search and seizure law last term in King and Davis.