Two indigent men stand before two separate judges. Both will be sent to prison if they lose their cases. One receives appointed counsel, but the other does not. This discrepancy seems terribly unjust, yet the Supreme Court has no problem with it. It recently affirmed in Turner v. Rogers, that where an indigent individual is subject to criminal charges that can result in incarceration, he has a right to appointed counsel, but where an indigent individual is subject to civil proceedings where incarceration is a consequence, he does not. In other words, criminal and civil proceedings have different rules, and the right to appointed counsel is no exception. This Article argues that because the consequence of these proceedings is exactly the same, the right to appointed counsel should be the same. Prison is prison. This consequence, and not just doctrinal distinctions, should guide the Court's analysis in deciding whether an indigent individual receives appointed counsel. By systematically examining the Court's narratives in both criminal and civil right-to-counsel cases, this Article seeks to determine why the Court continues to treat the same situation so differently. The Court states that it is driven solely by doctrine, but it uses radically different language to discuss the individuals, attorneys, and nature of the proceedings in the criminal versus civil setting. This Article argues that the Court's different goals in the criminal and civil context better explain the Court's approach than doctrinal distinctions alone. With criminal cases, its goal is legitimacy, while with civil cases, its primary goal is efficiency. This Article questions the Court's "doctrine-oriented" approach in the civil context, and argues that what the Court is really doing is allowing its treatment of cases in the broader civil justice system to affect its jurisprudence in this context. It does this even when the consequence of a typical civil case is so different. After all, the result in a case like Turner/s prison, not monetary damages or injunctive relief Instead of taking this doctrine-oriented approach, this Article argues that the Court's analysis should be "consequence-driven." Where prison is the consequence, the Court's underlying analysis of right to counsel should be the same whether the proceeding is criminal or civil Using the Court's decision in Turner, the Article shows how a consequence-driven approach could have changed the result in that case.
The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law .... He requires the guiding hand of counsel at every step in the proceedings against him. (1) The introduction of counsel into a ... proceeding will alter significantly the nature of the proceeding.... Certainly, the decisionmaking process will be prolonged, and the financial cost to the State ... will not be insubstantial. (2)
Two men stand before judges in two separate courtrooms. They are indigent so they cannot afford a lawyer. Each judge decides that counsel should not be appointed to them and proceeds to hold their hearings. They are each sentenced to a year in prison for their alleged offenses. After sentencing, they each find pro bono attorneys and appeal their cases to the Supreme Court. In the case of the first man, the Court determines that the failure of the trial court to provide counsel was fatal. After all, "[c]ounsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly...." (3) In the case of the second man, however, the result is markedly different. There, the Court rejects the requirement of counsel, holding that the issue in his case was "sufficiently straightforward …