It's Not Triage If the Patient Bleeds Out
16 Pages Posted: 31 Jan 2015 Last revised: 5 Feb 2015
In their article, Triaging Appointed-Counsel Funding and Pro Se Access to Justice, Professors Benjamin Barton and Stephanos Bibas articulate their belief that the civil right to counsel movement (also called “civil Gideon”) is about “giving everyone a lawyer” in the same vein as Gideon v. Wain wright. They argue not only that the issues at stake in criminal litigation are “more important” than those at stake in civil proceedings, but also that pursuit of a civil right to counsel will deepen the scarcity of legal resources available to indigent criminal defendants while replicating “Gideon’s shortcomings in the criminal context.”
Barton and Bibas therefore enthusiastically applaud the Supreme Court’s decision in Turner v. Rogers that the Constitution does not create a categorical right to counsel for child support obligees in civil contempt cases where the opponent is neither the state nor represented by counsel. Barton and Bibas argue that Turner prevented intrusive impositions on the states and “steered future developments toward more sustainable pro se court reform.” They believe Turner dealt a “death blow” to a constitutional right to counsel, and that such a result should be “cheer[ed].”
As former President of the American Bar Association and current Coordinator of the National Coalition for a Civil Right to Counsel (NCCRC), we reject the position taken by Barton and Bibas. In response to their Article, we first examine whether the case-by-case approach to appointing counsel that Barton and Bibas espouse for indigent civil litigants would work any better in civil cases than it did in pre-Gideon criminal cases, and we conclude that it would not. We then examine Barton and Bibas’s belief that providing fewer procedural protections in civil cases is justified by alleged “lesser” interests or “simpler” procedures in civil cases, or by study data about the impact of counsel.10 We find that neither justification supports Barton and Bibas’s position. Finally, we articulate the actual scope of the civil right to counsel advanced by advocates (which is considerably narrower than Barton and Bibas claim), and we set forth reasons why neither the current economic crisis nor the problems with indigent criminal defense justify inadequate protection of fundamentally important legal rights in civil cases.
Keywords: civil right to counsel, civil gideon, constitutional law, indigent defense, collateral consequences
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