Not long ago, a very important case concerning divorced fathers facing incarceration for inability to pay child support went before the Supreme Court. the issue at hand was whether or not men could be jailed for arrears without the benefit of counsel.
In Turner vs. Rogers, a South Carolina mother took her children’s father to court to force him to send her money. He had already been jailed a number of times for child support arrears, and finally received a 12 month sentence. Turner then challenged the sentence on the basis of the Sixth Amendment, which guarantees the right to counsel in criminal prosecutions, including criminal contempt proceedings.
The court ultimately found that because child support cases such as Turner’s are civil rather than criminal contempt cases, Turner is not entitled to legal assistance. However, it also ruled that Turner’s due process rights had been violated, because the state of South Carolina had failed to notify him that inability to pay is a valid defense in child support cases.
The majority opinion, written by Breyer, was tortuous and vague. Andrew Cohen, a legal editor for CBS, wrote a piece for The Atlantic that was fairly critical of the decision, suggesting that it could have implications that extend much farther than family law:
… there will be plenty of other people in Turner’s position, men and women both, who will be sent to prison for up to a year after a legal proceeding in which they were not given the opportunity to confer with a lawyer. You can call it “civil contempt” instead of “criminal contempt,” as South Carolina and many other states do. You can call it whatever you like, actually, to skirt the letter of Sixth Amendment precedent. But no matter what the proceeding is called, the defendant still faces serious prison time if he doesn’t comply. Didn’t the fabled Gideon opinion, handed down nearly 50 years ago now, mandate counsel in those circumstances?
I think it did. Yet I acknowledge the delicate dance that justices Breyer and Kennedy performed in the case. Justice Kennedy maybe helps rescue Turner by signing on to the opinion. And Justice Breyer maybe helps rescue Justice Kennedy with an opinion that neither guarantees nor precludes due process protections for future defendants in these sorts of cases. At the very same time, therefore, Turner v. Rogers stands both for the proposition that there is no due process protection for a defendant like Turner who doesn’t get counsel and for the proposition that a defendant like Turner may, in fact, have his due process rights violated by not having counsel.
This issue will be back–even if Turner is not. Like many compromises in law and life, the one at the highest level of this case only delays to some near-future Court Term the resolution of the tough questions about how far the Sixth Amendment, or the due process clause, ought to extend into these hybrid cases. If debtor’s prisons indeed are back in vogue in America, the law surrounding them surely won’t be too far behind.
Cohen certainly makes a good point, and all Americans – not only fathers in arrears – should find this decision worrisome, but what I find rather curious is that he didn’t even give a passing mention to the female justices, who to a woman voted against counsel for men in child support cases. The majority was only 5-4, so the female vote obviously was the critical factor here. Additionally, the decision to limit the rights of defendants came from the so-called “liberal” wing of the court, with the most vigorous opposition coming from Clarence Thomas, who argued that finding that Turner’s due process had been violated while rejecting the applicability of the Sixth Amendment was a non sequitur.
