III. TURNER V. ROGERS
The issue of whether indigent individuals facing incarceration should have a right to counsel in civil cases was recently presented to the Supreme Court in Turner v. Rogers. (196) The case asked whether an indigent father who had failed to make his child support payments in violation of a court order had a right to counsel in a contempt hearing--a hearing that resulted in his incarceration. (197) In Turner, the Court could have dispensed with its doctrine-oriented approach, and found a right to counsel for all indigent individuals facing prison, but it did not. This Part will discuss the distinctions between civil and criminal contempt, the background of civil contempt in the child support context, the basic facts of Turner's case, and the Court's ultimate decision in Turner.
A. Civil vs. Criminal Contempt
The distinctions between the law on assistance of counsel in the criminal and civil context are especially pronounced in contempt. This is because the line between criminal and civil contempt is often quite fuzzy. (198) In simple terms, courts can use criminal contempt to punish behavior. It is a punitive power courts have to make sure that their authority is not flouted. In other words, the power is for the benefit of the court. (199) In contrast, civil contempt is remedial, not punitive, and it is for the benefit of the complainant, not the court. (200) This has led to the assertion that a civil contemnor holds the "keys to their own prison door." (201) Because the court is only compelling the contemnor to do something that is arguably within his power, civil contempt is not viewed as punishment. After all, one just complies with the court's order, and the contempt is over.
This key distinction between the two modes of contempt has led to each developing different procedures and consequences. Most of the rights associated with a criminal prosecution apply to criminal contempt. (202) This includes the right to an attorney and the right to an immediate appeal. (203) This is not true for civil contempt. The Court has refused to expand the rights that attach to criminal proceedings into civil contempt. (204) As this Article discusses, there is no right to an attorney. But, there is also no right to an immediate appeal, no right to a jury, and no right to anything beyond a summary hearing. (205)
One might be assuaged that the procedural differences are justified because, in the civil context, the contemnor is not punished. Yet, in addition to monetary sanctions, courts often imprison contemnors until they comply with the court order. As explained in the next Section, civil contempt orders in the child support payment context are a good example of how civil contempt can work. If the parent-debtor misses a payment, he is held in contempt and imprisoned. If the parent-debtor pays the outstanding debt, he is freed, but if he does not, he remains in prison. (206)
B. State Involvement in Enforcement of Child Support Orders
In order to understand the issues involved in Turner, it is important to know how the state becomes involved in child support payment collection. What follows is a brief summary of that system. (207)
States are critical players in the collection of child support payments not just because of their social welfare concerns regarding their citizens. Their primary motivation was and continues to be receiving federal funding for their social welfare programs. Under both Temporary Assistance for Needy Families ("TANF") and its precursor, Aid to Families with Dependent Children, Congress requires states receiving federal funds to set up a system for child support enforcement. (208)
More specifically, under Title IV-D, adopted by Congress in 1975, Congress required states to adopt a plan for collection of child support and to have that plan approved by the Secretary of Health and Human Services. (209) Each state, through its plan, is required to set up a system to track down noncustodial parents, establish paternity, and collect child support where the children are receiving TANF benefits. …