Case No. 10-10

JUL

MICHAEL D. TURNER,

In the

Petitioner,

REBECCA PRICE ANDSOUTH CAROLINA

DEPARTMENT OF SOCIAL SERVICES,

Respon den ts.

On Petition for a Writ of Certiorarito the Supreme Court of South Carolina

BRIEF OF AMICUS CURIAETHE CONSTITUTION PROJECT

IN SUPPORT OF PETITIONERVirginia E. SloanPresidentMary SchmidThe Constitution Project1200 18th Street, N.W.Suite 1000Washington, D.C. 20005(202) 580-6923

Attorneys for

David M. RaimCounsel of Recorddraim@chadbourne.comKate McSweenyJoy L. LangfordChadbourne & Parke LLP1200 New Hampshire Ave., NWWashington, D.C. 20036(202) 974-5745

Amicus Curiae

~lank Page

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................iii

INTEREST OF THE AMICUS CUR~E. .........1

SUMMARY OF ARGUMENT ...................6

ARGUMENT ................................ 9

The Court Has Already Recognized ThatIndigent Defendants In A Civil Action Have ARight To Appointed Counsel When Loss OfLiberty Is At Stake; It Should Therefore GrantThe Petition And Reverse The South CarolinaSupreme Court In Order To Resolve AnyConfusion For Those States Failing To ApplyThat Standard ............................ 9

Ao "Fundamental Fairness" RequiresCounsel To Be Made Available AbsentThe Defendant’s Specific Waiver of theRight In Any Proceeding That Results InLoss Of Liberty ....................... 10

Bo It Is Illogical For The Minority States ToRequire Counsel For Defendants ChargedWith Misdemeanors Per ArgersingerBut To Not Abide By Lassiter WhenDefendants Are Charged With CivilContempt And Subject To Incarceration ....17

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II. The Minority States Wrongly Assume ThatIndigent Civil Contemnors "Hold The KeyTo The Cell Door," Precluding Any Need ForCounsel ................................ 19

CONCLUSION ............................. 24

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TABLE OF AUTHORITIES

Cases

Adkins v. Adkins,248 S.E.2d 646 (Ga. 1978) ...............17

Alabama vo Shelton,535 U.S. 654 (2002) ................ 9, 11, 12

Andrews vo Walton,428 So.2d 663 (Fla. 1983) ...............14

Argersinger y. Hamlin,407 U.S. 25 (1972) .......... 9, 11, 17, 18, 20

Bowen v. Bowen,471 So.2d 1274 (Fla. 1985) ..............14

Ensley v. Ensley,238 S.E.2d 920 (Ga. 1977) ...............13

Florida y. Singletary,549 So.2d 996 (Fla. 1989) ...............17

Gagnon y. Scarpelli,411 U.S. 778 (1973) .................... 11

Gideon y. Wainwright,372 U.S. 335 (1963) .................... 11

Glover v. United States,531 U.S. 198 (2001) ..................... 9

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Gompers v. Buck’s Stove & Range Co.,221 U.S. 418 (1911) ....................19

Grosjean y. American Press Co.,297 U.S. 233 (1936) ....................11

In re Gault,387 U.S. 1 (1967) ...................... 12

In re Nevitt,117 F. 448 (8th Cir. 1902) ...............19

Johnson v. Zerbst,304 U.S. 458 (1938) .....................11

Jones v. Wharton,253 Ga. 82 (1984) ...................... 17

Lassiter v. Dep’t of Soc. Servs.,452 U.S. 18 (1981) ....... 9, 10, 11, 12, 15, 17

Maine v. Goodine,587 A.2d 228 (Me. 1991) ................17

McBride v. McBride,431 S.E.2d 14 (N.C. 1993) ...............20

Mead v. Batchlor,460 N.W.2d 493 (Mich. 1990) ............20

Miller v. Miller,652 S.E.2d 754 (S.C. Ct. App. 2007) .... 12, 13

Pamela R. v. James N.,884 N.Y.S.2d 323 (Fam. Ct. 2009) ..... 18, 19

V

Poston v. Poston,502 S.E.2d 86 (S.C. 1998) ............ 13, 23

Powell y. Alabama,287 U.S. 45 (1932) .................6, 19, 20

Price y. Turner,691 S.E.2d 470 (S.C. 2010) ......12, 17, 19, 23

Ridgway y. Baker,720 F.2d 1409 (5th Cir. 1983) ......16, 20, 21

Scott y. Illinois,440 U.S. 367 (1979) .................... 11

Small v. Small,413 A.2d 1318 (Me. 1980) ...............15

State v. Rau,465 S.E.2d 370 (S.C. Ct. App. 1995) .......17

Vitek y. Jones,445 U.S. 480 (1980) .................... 12

Walker y. McLain,768 F.2d 1181 (10th Cir. 1985) ...........20

United States Constitution

Amend. VI ................. 9,10,11,12,17

Amend. XIV ...................... 9,11,12

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Statutes and Rules

Fla. Stat. § 27.51 (2010) ...................... 14

Fla. Stat. § 775.02 (2010) .....................14

Ga. Code Ann. § 15"6-8 (2010) .................13

Maine R. Civ. P. 66 (2009) .................14, 15

Maine R. Civ. P. 88 (2010) ................15, n.3

Maine R. Crim. P. 44 (2010) ...............15, n.3

Maine Rev. Stat. § 1801 (2009) .............15, n.3

Maine Rev. Stat. § 1802 (2009) .............15, n.3

S.C. Code Ann. § 63-3-620 (2010) .............. 12

Newspapers and Press Releases

Bill Rankin, Court knew man jailed for a year fornon-support was not child’s father, Atlanta JournalConstitution, July 14, 2009, available athttp://www.ajc.com/news/court-knew-man-jailed-91036.html ................................. 13

Editorial, People find themselves arrested -- and injail -- because they owe money, Las Vegas Sun,June 14, 2010, available athttp://www.lasvegassun.condnews/2010/jun/14/debtors-prisons/ .......................... 21-22

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Editorial, The New Debtors’ Prisons, N.Y. Times,Apr. 6, 2009, available athttp://www.nytimes.com/2009/04/06/opinion]06mon4.html ............................... 21

Editorial, Debtors’prison --again, St. PetersburgTimes, Apr. 14, 2009, available athttp://www.tampabay.condopinion/editorials/article991963.ece ............................ 22

Chris Serres and Glenn Howatt, In jail for beingin debt, Minneapolis Star Tribune, June 9, 2010,available at http://www.startribune.com/local/95692619.html .............................. 21

Southern Center for Human Rights Press Release,South Georgia Man Released from Year-LongIncarceration; Jailed For Being Too Poor ToSupport A Child That Is Not His (July 15, 2009),http://www.schr.org/aetion/resourees/falsepaternity ................................ 13, 14

Reports

Report of Right to Counsel Committee, TheConstitution Project, JUSTICE DENIED: AMERICA’SCONTINUING NEGLECT OF OUR CONSTITUTIONALRIGHT TO COUNSEL (Apr. 2009), http://www.constitutionproj ect.org/manage/file/139.pdf. ......4

oooVlll

Report of Right to Counsel Committee, TheConstitution Project, JUSTICE DENIED: AMERICA’SCONTINUING NEGLECT OF OUR CONSTITUTIONALRIGHT TO COUNSEL, Recommendation 23 (JUNE 28,2010), http://www.constitutionproj ect.org!manage!file!416.pdf ........................ 5, 21

Other

Samuel Johnson,Idler Essay No. 22, Sept. 16, 1758 ........22

INTEREST OF THE AMICUS CURIAE

The Constitution Project1 is an independent, not-for-profit think tank that promotes and defendsconstitutional safeguards and seeks consensussolutions to difficult legal and constitutional issues.The Constitution Project achieves this goal throughconstructive dialogue across ideological and partisanlines, and through scholarship, activism, and publiceducation efforts. It has earned wide-rangingrespect for its expertise and reports, includingpractical material designed to make constitutionalissues a part of ordinary political debate. TheConstitution Project frequently appears as amicuscuriae before the United States Supreme Court, thefederal courts of appeal, and the highest state courts,in support of the protection of constitutional rights.

The ConstitutionCounsel Committeeindependent experts

Project’s National Right tois a bipartisan committee ofrepresenting all segments of

No counsel for a party or a party to this proceedingauthored this brief in whole or in part and no counsel for aparty or party to this proceeding made a monetarycontribution intended to fund either the preparation or thesubmission of this brief. No person other than amicuscuriae, their members, or their counsel made a monetarycontribution to the preparation or submission of this brief.Letters of the Parties’ general consent for ~mic~s curiae tosubmit a brief in this proceeding are on file with the Court.

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America’s justice system.~ Established in 2004, the

The Committee members are as follows (affiliations listedfor identification purposes only): Hon. Rhoda Billings (Co-Chair), Professor Emeritus, Wake Forest Law School;Justice, North Carolina Supreme Court, 1985"1986, ChiefJustice, 1986; Judge, State District Court, 1968-1972;Robert M. A. Johnson (Co-Chair), District Attorney, AnokaCounty, Minnesota; former President, National DistrictAttorneys Association; Hon. Timothy K. Lewis (Co-Chair),Appellate Practice Group, Schnader Harrison Segal &Lewis LLP; Judge, United States Court of Appeals for theThird Circuit, 1992-1999; Judge, United States DistrictCourt for the Western District of Pennsylvania, 1991-1992;former Assistant United States Attorney, Western Districtof Pennsylvania; former Assistant District Attorney,Allegheny County, Pennsylvania; Hon. Walter Mondale(Honorary Co-Chair), Senior Counsel, Dorsey & WhitneyLLP; Vice President of the United States, 1977-1981;United States Senator (D-MN), 1964-1977; formerMinnesota Attorney General, who organized the amicusbrief of 22 states in favor of Gideon in Gideon y.Wainwrighg Hon. William S. Sessions (Honorary Co"Chair), Partner, Holland and Knight LLP; Director, FederalBureau of Investigation, 1987-1993; Judge, United StatesDistrict Court for the Western District of Texas, 1974-1987,Chief Judge, 1980-1987; United States Attorney, WesternDistrict of Texas, 1971-1974; Shawn Marie Armbrust,Executive Director, Mid-Atlantic Innocence Project; formerNorthwestern journalism student who helped exoneratedeath row inmate Anthony Porter; Hon. Jay W. Burnett,Former Judge, 351st Criminal District Court, HarrisCounty Texas, appointed 1984; Judge, 183rd CriminalDistrict Court, Harris County, Texas, 1986-1998; VisitingCriminal District Judge, 2nd Judicial AdministrativeRegion of Texas, 1999-2000; Alan Crotzer, Senior Clerk,Department of Juvenile Justice; 2006 DNA exonoree; Dr.

(Cont’d on following page)

Right to Counsel Committee’s mission was toexamine, across the country, whether criminal

(Cont’d from preceding page)

Tony Fabelo, Director of Research, Justice Center of theCouncil of State Governments; former Senior Associate,The JFA Institute; former Executive Director, TexasCriminal Justice Policy Council; tlon. Norman S. Fletcher,Of Counsel, Brinson, Askew, Berry, Seigler, Richardson &Davis; Justice, Supreme Court of Georgia, 1989-2005, ChiefJustice, 2001-2005; Monroe Freedman, Professor of Lawand Former Dean, Hofstra University School of Law; SusanHerman, Associate Professor of Criminal Justice, PaceUniversity; former Executive Director, National Center forVictims of Crime; Bruce Jacob, Dean Emeritus andProfessor of Law, Stetson University College of Law; formerAssistant Attorney General for the State of Florida,represented Florida in Gideon v. Wainwright; Abe Krash,Retired Partner, Arnold & Porter LLP; former VisitingLecturer, Yale Law School; Adjunct Professor, theGeorgetown University Law Center; represented ClarenceGideon in Gideon v. Wainwright; Charles J. Ogletree, Jr.,Founding and Executive Director, Jesse ClimenkoProfessor of Law, Charles Hamilton Houston Institute forRace and Justice, Harvard Law School; Bryan Stevenson,Director, Equal Justice Initiative of Alabama; Professor ofLaw, New York University School of Law; Larry D.Thompson, General Counsel, PepsiCo, Inc.; DeputyAttorney General of the United States, 2001-2003; formerUnited States Attorney, Northern District of Georgia;Hubert Williams, President, Police Foundation; formerNew Jersey Police Director; former Special Advisor to theLos Angeles Police Commission; Norman Lefstein (Reporterand Member), Professor of Law and Dean Emeritus,Indiana University School of Law, Indianapolis; RobertSpangenberg (Reporter), President, The SpangenbergGroup.

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defendants and juveniles charged with delinquencywho are unable to retain their own lawyers receiveadequate legal representation, consistent with theUnited States Constitution, decisions of the UnitedStates Supreme Court, and rules of the legalprofession, and to develop consensusrecommendations for achieving lasting reforms.

The Right to Counsel Committee spent severalyears examining the ability of state courts to provideadequate counsel to individuals charged in criminaland juvenile delinquency cases who are unable toafford lawyers. In 2009, the Committee issued itsseminal report, JUSTICE DENIED: AMERICA’SCONTINUING NEGLECT OF OUR CONSTITUTIONALRIGHT TO COUNSEL, which included the Committee’sfindings on the right to counsel nationwide, andbased on those findings, made 22 substantiverecommendations for reform. The Committee’srecommendations urged States to provide sufficientfunding and oversight to comply with constitutionalrequirements and endorsed litigation seekingprospective relief on behalf of a class of indigentdefendants when States fail to comply with thoserequirements. The Committee also maderecommendations for the federal government,criminal justice agencies, bar associations, judges,prosecutors, and defense lawyers to address theindigent defense crisis facing the nation. JUSTICEDENIED has been cited in a wide variety of nationalnews outlets, state newspapers, and state courtopinions, and publicly praised by a wide array ofpublic figures including U.S. Attorney General EricHolder.

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In 2010, due to concern over the imprisonment ofindigent individuals as a result of non-criminalproceedings, the Right to Counsel Committeereconvened to issue a new recommendation to add tothe existing recommendations in JUSTICE DENIED.Recognizing that a handful of states have created "de£acto ’debtor’s prisons’ in which individuals too poorto pay their fines or court-ordered obligations areincarcerated based on their inability to pay, withoutbeing afforded the opportunity to be represented bycounsel," the Right to Counsel Committee added thefollowing recommendation to its seminal work:"Except in direct summary contempt proceedings,States should ensure that, in the absence of a validwaiver of counsel, quality representation is providedto all persons unable to afford counsel in proceedingsthat result in a loss of liberty regardless of whetherthe proceeding is denominated civil or criminal innature." Report of Right to Counsel Committee, TheConstitution Project, JUSTICE DENIED: AMERICA’SCONTINUING NEGLECT OF OUR CONSTITUTIONALRIGHT TO COUNSEL, Recommendation 23 (JUNE 28,2010), http://www.constitutionproj ect.org/manage/file/416.pdf.

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SUMMARY OF ARGUMENT

The right to be heard would be, in manycases, of little avail if it did notcomprehend the right to be heard bycounsel. Even the intelligent andeducated layman has small and some-times no skill in the science of law .... Helacks both the skill and knowledgeadequately to prepare his defense, eventhough he had a perfect one. He requiresthe guiding hand of counsel at every stepin the proceedings against him.

Powell v. Alabama,287 U.S.45, 68-69 (1932)

This case calls for a narrow decision that willfurther elucidate the Court’s prior pronouncementsthat in any proceeding resulting in the defendant’sloss of liberty, the defendant is constitutionallyentitled to be advised of the right to counsel and, ifindigent, to have counsel appointed. A defendantshould never be prevented from enjoying thisfundamental constitutional protection simplybecause a proceeding is denominated as "civil."Indeed, the vast majority of States recognize theoverarching principle that it is the loss of liberty thattriggers the right to counsel, not the nature of theproceedings. Nevertheless, at least four States --South Carolina, Florida, Georgia, and Maine -- donot recognize such a right despite the Court’spronouncements to the contrary, while a handful ofothers -- Nevada, New Hampshire, and New Mexico-- permit courts to decide the need for counsel on a

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case-by-case basis. It is time to draw all of theseStates under the constitutional umbrella.

The Court should not be concerned that anexpress recognition of a defendant’s right to counselwhen his liberty interest is invoked will create awaterfall effect requiring counsel to be appointed toindigent defendants in every civil proceeding. Mr.Turner’s petition asks the Court to respond to adiscrete question that most States already recognizeas a settled point of law: indigent defendants to acivil contempt charge must be appointed counselwhen their liberty is jeopardized; to do otherwise,risks a defendant being jailed without due process.

The burden placed on civil defendants to provetheir indigence coupled with their financial inabilityto "purge" the contempt by paying the court-orderedamount often makes it impossible for indigentdefendants in civil contempt proceedings to avoidserving sentences of as long as a year. Upon release,an indigent contemnor remains at risk of being re-arrested on a similar charge and returned to jail.This places indigent contemnors on a treadmillwhere they are unable to work because they are injail, unable to purge their contempt because they areindigent, and unable to prove their indigence in thefirst instance because they are neither informed of aright to counsel nor provided court-appointedcounsel.

Mr. Turner’s case is illustrative, althoughregrettably not unusual in the minority of statesthat have held defendants are not entitled to counselin civil proceedings when their liberty is at stake.

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His entire "evidentiary" hearing makes up threepages of the record. (Pet. App. D 16a-18a.) He spokea total of 169 words at his hearing, 120 of whichwere intended as an explanation to the court of hisinability to pay. (Pet. App. D 17a.) The court neveradvised Mr. Turner of his right to counsel nor did itgive Mr. Turner any assistance beyond asking, "Isthere anything you want to say?" (Id.) Even whenMr. Turner asked why he would not receivestatutory work or good time credits during hisincarceration, the court replied only, "Because that’smy ruling." (Id.) Having received less than aminute of the court’s time, Mr. Turner wasincarcerated for one year in the Oconee County,South Carolina Detention Center for his "willfulcontempt." (Id.) In total, Mr. Turner wasincarcerated at least three times for "willfulcontempt" related to his inability to pay -- and eachtime, the debt continued to increase while he wasbehind bars. (Pet. at 8.)

The fact that Mr. Turner and thousands like himare provided no constitutional due processprotection is extraordinary given the Court’spronouncements to the contrary. Granting Mr.Turner’s Petition for a Writ of Certiorari to theSouth Carolina Supreme Court will provide anopportunity to clarify once and for all that the risk ofloss of liberty triggers a constitutional right tocounsel no matter how the case is denominated.

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ARGUMENT

The Court Has Already Recognized That IndigentDefendants In A Civil Action Have A Right To

Appointed Counsel When Loss Of Liberty Is AtStake; It Should Therefore Grant The PetitionAnd Reverse The South Carolina Supreme CourtIn Order To Resolve Any Confusion For ThoseStates Failing To Apply That Standard

No more is needed here than a narrow decisionclarifying to the States that the standard for aconstitutional right to counsel is based not onwhether the hearing is designated as "civil" or"criminal," but rather on whether the defendant’sliberty interest is jeopardized.

The Court already recognized this standard inLassiter y. Department of Social Ser~ces, where itset forth that it is "the defendant’s interest inpersonal freedom, and not simply the special Sixthand Fourteenth Amendment right to counsel incriminal cases, which triggers the right to appointedcounsel." 452 U.S. 18, 26 (1981) (establishing that"as a litigant’s interest in personal libertydiminishes, so does his right to appointed counsel")(emphasis added). More recently, the Courtemphasized that "no person may be imprisoned forany offense.., unless he was represented by counselat his trial." Alabama v. Shelton, 535 U.S. 654, 664-65 (2002) (emphasis in original) (citing Argersingerv. Hamlin, 407 U.S. 25, 37 (1972)); see also Gloyer y.United States, 531 U.S. 198, 203 (2001) (recognizingthat "any amount of actual jail time has SixthAmendment significance").

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The clarification that Mr. Turner seeks is alogical and needed extension of the Court’sprecedents in both the civil and criminal contexts,which the vast majority of States have alreadyimplemented. Only a minority of States, includingSouth Carolina, continues to permit indigentdefendants to be banished to modern day debtors’prisons under the pretext that the indigent haveready funds available to purge their contempt andunlock their cell doors. Under the Court’s priorguidance, there can be no proper outcome other thanthat a defendant in any proceeding that results inloss of liberty (other than summary contemptproceedings) must be advised of his right to counseland, if indigent, be appointed counsel unless theright is knowingly and intelligently waived, nomatter whether the proceeding is "civil" or "criminal"in nature. Any other result is fundamentally unfair.

A. "Fundamental Fairness" Requires Counsel ToBe Made Available Absent The Defendant’sSpecific Waiver Of The Right In AnyProceeding That Results In Loss Of Liberty

A long line of cases leads us to this moment. Asthe Court itself has stated, its precedents "speakwith one voice about what ’fundamental fairness’ hasmeant when the Court has considered the right toappointed counsel," which is "the presumption thatan indigent litigant has a right to appointed counselonly when, if he loses, he may be deprived of hisphysical liberty." Lassiter, 452 U.S. at 26-27.

The Sixth Amendment to the United StatesConstitution states that "[i]n all criminal

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prosecutions the accused shall enjoy the right to...have the Assistance of Counsel for his defence." Thisright to counsel is recognized as a fundamental rightof life and liberty extended to the States by the DueProcess Clause of the Fourteenth Amendment ("norshall any State deprive any person of life, liberty, orproperty without due process of law"). Gideon y.Wainwright, 372 U.S. 335, 343 (1963) (citingGrosjean y. American Press Co., 297 U.S. 233, 243-44 (1936)); see also Johnson y. Zerbst, 304 U.S. 458,462 (1938)). Under that standard, no indigentdefendant whose liberty is at stake can be "assured afair trial unless counsel is provided for him."Gideon, 372 U.S. at 344. See also Shelton, 535 U.S.at 664-65 (recognizing the right to counsel before asuspended sentence may be imposed); Scott y.Illinois, 440 U.S. 367, 373-74 (1979) (recognizing theright to counsel if the trial leads to actualimprisonment); Argersinger, 407 U.S. at 37(recognizing the right to counsel in any criminalprosecution "whether classified as petty,misdemeanor or felony" that actually leads toimprisonment, even if only briefly). Cf. Gagnon y.Scarpelli, 411 U.S. 778, 787-89 (1973) (denying aright to appointed counsel in revocation of probationproceedings).

The Sixth Amendment cases, such as those cited,have helped to inform the Court’s decisions applyingthe right to counsel in civil matters as afundamental due process right when a defendant’sliberty interest is at stake. Indeed, the Court hassaid that it would be "extraordinary if ourConstitution did not require the proceduralregularity and the exercise of care implied in the

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phrase ’due process"’ in cases invoking a defendant’sliberty interest. In re Gsult, 387 U.S. 1, 27-28 (1967)(recognizing a right to counsel for juveniles indelinquency proceedings); see ~Iso Vitek y. Jones,445 U.S. 480, 493-94 (1980) (plurality) (recognizing aprisoner as having a due process right to counselbefore he can be involuntarily sent to a psychiatricinstitution). In sum, the Court’s decisions revealthat whether an individual case is decided under theSixth Amendment for criminal matters (e.g.,Sl~elton) or the Due Process Clause for civil matters(e.g., L~ssiter), it is the defendant’s liberty interestthat is the universal standard for determining whena defendant has a constitutional right to counsel.

Mr. Turner’s concerns were dismissed by theSouth Carolina Supreme Court under the rubric thatthis was civil contempt under which a defendant isnot entitled to the "additional constitutionalsafeguards" that would have been Mr. Turner’s hadhe been charged with criminal contempt. Price y.Turner, 691 S.E.2d 470, 472 (S.C. 2010) (describingMr. Turner’s twelve-month sentence as a "classiccivil contempt sanction") (citing Miller y. Miller, 652S.E.2d 754, 761 (S.C. Ct. App. 2007)). SouthCarolina does not distinguish between "civil" and"criminal" contempt under its statute with respect topotential penalties. S.C. Code Ann. § 63-3-620(2010). The differentiation between "civil" and"criminal" in contempt proceedings, in practice,however, often favors criminal contemnors who areafforded a right to counsel, given the opportunity topresent a true defense and, if found guilty, penalizeda set period of time that is often far less than thetime served by an indigent civil contemnor whose

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sentence may be open-ended. See, e.g., Poston y.Poston, 502 S.E.2d 86, 89 (S.C. 1998) (discussingdifferent burdens for civil and criminal contemptdefendants); Miller, 652 S.E.2d at 761 (same).

In Georgia -- a minority state -- a criminalcontemnor by statute may not be sentenced to morethan 20 days, Ga. Code Ann. § 15-6-8 (2010),whereas a civil contemnor may be "imprisoned for anunspecified period" until he "performs a specifiedact." Ensley y. Ensley, 238 S.E.2d 920, 921-22 (Ga.1977) (explaining that incarceration for criminalcontempt is punitive, whereas incarceration for civilcontempt is remedial).

The story of Georgia’s Frank Hatley is a case inpoint. Jailed for more than a year for non-paymentof child-support, Frank Hatley was released onlyafter attorneys with the Southern Center for HumanRights ("SCHR") became involved. SCHR PressRelease, Soutl~ Georgis Man Released t"rom Year-Long Incsrceration; Jailed For Being Too Poor ToSupport A C1~ild T1~at Is Not His (July 15, 2009),http://www.schr.org/action/resources/falsepaternity;see also Bill Rankin, Court knew man jailed £or ayear/’or non-support was not c1~ild’s £at/~er, AtlantaJournal Constitution, July 14, 2009, available athttp://www.ajc.com/news/court-knew-man-jailed-91036.html. A paternity test in 2000 showed thatMr. Hatley was not the father of the child he hadbeen helping to support for eleven years, yet thecourt continued to hold Mr. Hatley responsible forback payments. For the next eight years, Mr. Hatleypaid. Then Mr. Hatley lost his job, lost his home,and moved into his car. Still, he attempted to make

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payments. When his money ran out, the courtstepped in and charged him with contempt. Withoutlegal representation at his contempt hearing, Mr.Hatley was unable to show the court that his failureto pay was not willful but rather based on indigence.More than a year later, he was still incarcerated. Atthe time of Mr. Hatley’s incarceration, 45 of the 140inmates at the jail were also incarcerated fornonpayment of support. SCHR Press Release.

Other minority States similarly limit the right tocounsel for defendants charged with civil contempt.Florida, for example, like South Carolina, statutorilylimits jail sentences for civil and criminalcontemnors to a period not to exceed twelve months,Fla. Stat. § 775.02 (2010); but by law, Florida’spublic defenders are required to represent indigentdefendants charged with criminal contempt, Fla.Stat. § 27.51 (2010). No such law protects civilcontemnors: because Florida requires a finding thatthe defendant has a "present ability to purge," itdoes not require counsel to be appointed. Bowen y.Bowen, 471 So.2d 1274, 1277 (Fla. 1985); see alsoA~drews y. Walton, 428 So.2d 663 (Fla. 1983)(determining that "fundamental fairness" preventsindigent contemnors from being imprisoned,therefore no counsel is needed).

Maine no longer distinguishes between "civil" and"criminal" contempt, but rather distinguishes itssanctions as "remedial" and "punitive." Maine R.Civ. P. 66 (2009). The Advisory Committee’s Notesto Rule 66, however, clarify that a defendant subjectto punitive sanctions is entitled to counsel, whereasa defendant subject to remedial sanctions is only

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entitled to have counsel appointed if such a right isgranted under another law since "there generally isno such right in civil proceedings." Maine R. Civ. P.66, Advisory Committee’s Notes ¶ 8 (June 1, 2000)(discussing Rule 66(d)(2)); Advisory Committee’sNotes (June 1, 1997) (discussing Rule 66(c)).Effectively, this represents the status quo as existedpre-Lassiter. See Small y. Sins11, 413 A.2d 1318,1323 (Me. 1980).3 Like South Carolina, these Statesare in direct conflict with this Court’s decisionsrequiring counsel to be provided when a defendant’sliberty interest is at stake.

The minority States ignore the warning abided bythe vast majority of States that have decided thisissue, as articulated by the Court of Appeals for theFifth Circuit, that no matter how a contempt case is

In 2009, Maine created a Commission on Indigent LegalServices "whose purpose is to provide efficient, high-qualityrepresentation to indigent criminal defendants, juveniledefendants and children and parents in child protectivecases, consistent with federal and state constitutional andstatutory obligations." Maine Rev. Stat. § 1801 (2009).Effective July 1, 2010, Maine’s Criminal Procedure Rule 44governs any assignment of counsel to such a proceeding.See Maine R. Civ. P. 88; Maine R. Crim. P. 44A. Under thenew law, counsel will be assigned to "an indigent party in acivil case in which the United States Constitution or theConstitution of Maine or federal or state law requires thatthe State provide representation." Maine Rev. Stat.§ 1802(4)(B) (2009).

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denominated, if the defendant’s liberty is at stake,he is owed a right to counsel for one reason:

If the court errs in its determination thatthe defendant has the means to complywith the court’s order, the confinementmay be indefinite. Such an error is morelikely to occur if the defendant is deniedcounsel. Viewed in this light, a civilcontempt proceeding may pose an evengreater threat to liberty than a proceedinglabeled "criminal," with a correspondinglygreater need for counsel.

Ridgway y. Baker, 720 F.2d 1409, 1414 (5th Cir.1983) ("the line between civil and criminal contemptis rarely as clear as the state would have usbelieve").

A defendant’s right to counsel in a civilproceeding when his liberty is at stake should not bedependent upon where he lives. By any measure,that is constitutionally deficient and fundamentallyunfair.

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B. It Is Illogical For The Minority States ToRequire Counsel For Defendants ChargedWith Misdemeanors Per Argers~nger But ToNot Abide By Lassi~er When Defendants AreCharged With Civil Contempt And Subject ToIncarceration

States that follow the minority view, includingSouth Carolina, have acknowledged this Court’sinstruction in Argersinger regarding the SixthAmendment right to counsel in cases where thedefendant is charged with a misdemeanor. See, e.g.,State y. Rat~, 3465 S.E.2d 370 (S.C. Ct. App. 1995)(discussing Argersinger and describing "[o]ne of themost valued rights that a defendant can have" as"his Sixth Amendment right to assistance ofcounsel"); Florida y. Singletary, 549 So.2d 996, 997(Fla. 1989) ("Any defendant who faces the possibilityof incarceration must be provided the services of alawyer if he cannot afford one. It is axiomatic thatthese services are deemed essential because of thelawyer’s training and expertise."); Jones y. Wl~arto~,253 Ga. 82, 83 (1984) ("When an accused is placed ontrial for any offense, whether felony or misdemeanor,for which he faces imprisonment, the constitutionalguarantee of right to counsel attaches."); Mai~e y.Goodi~e, 587 A.2d 228, 229 (Me. 1991) ("an indigentdefendant has the right to be represented by alawyer"). Yet, they fail to recognize an equivalentconcern for defendants in civil contempt cases. Seee.g., Turner, 387 S.C. at 145 n.2 ("We recognize thatin holding a civil contemnor is not entitled toappointment of counsel before being incarcerated weare adopting the minority position."); Adki~s y.Adki~s, 248 S.E.2d 646 (Ga. 1978) ("A contempt for

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failure to pay child support is a civil proceeding. Itsprimary purpose is to provide a remedy for thecollection of child support by coercing compliancewith such an order. Argersinger relates to criminalprosecutions and is not applicable."). It isunfathomable why these States decline to providecounsel to indigent defendants in civil contemptproceedings where incarceration is involved.

There is a fine line between whether an act iscivil or criminal and "in many circumstances, a civilcontempt may have more serious consequences thana criminal contempt." Pame]a R. v. James N., 884N.Y.S.2d 323, 328 (Fam. Ct. 2009). A criminalcontemnor, however, is provided a full panoply ofprotections, including the right to counsel, while acivil contemnor in the minority States stands alone.

The minority States place a double burden on acivil defendant charged with violating a court orderto pay a debt or to pay child support. First, unlikecriminal contempt cases where the governmentbears the burden of proof, the moving party in a civilcontempt proceeding need only make a simple prima£acie case and has no obligation to prove thedefendant is actually capable of paying. Rather,once the existence of a court order andnoncompliance is shown, the burden shifts to thedefendant to prove his own inability to pay. Second,a civil defendant must (a) comprehend that he bearsthat burden, (b) prepare his defense, (c) navigatethe court’s procedural rules and customs, and (d) puton an evidentiary hearing -- usually without anylegal education or related experience whatsoever. Asthe Court acknowledged almost 80 years ago,

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indigent defendants are unlikely to have the readyskills available to mount such a defense without thebenefit of counsel. Powe11, 287 U.S. at 68-69.

South Carolina and the other minority States, asexemplified through Florida, Georgia, and Maine,have acknowledged the constitutional right ofcounsel for criminal defendants even whenincarceration may only be for a brief period. Yetthese same states refuse to protect indigentdefendants charged with civil contempt facingindefinite incarceration if they are too poor to payand are unable to put on an adequate defensewithout counsel. That is fundamentally unfair.

II. The Minority States Wrongly Assume ThatIndigent Civil Contemnors "Hold The KeyTo The Cell Door," Precluding Any Need ForCounsel

It has become a common turn of phrase thatincarceration for civil contempt is merely coercive --and hence not requiring due process in the minorityStates -- rather than punitive, because civil contem-nors "hold the key to the cell door," in that they canpurge their contempt at any time. Turner, 691S.E.2d at 472; see also Gompers v. Buck’s Stove &Range Co., 221 U.S. 418, 442 (1911) (he "carries thekeys of his prison in his own pocket") (quoting In reNeyitt, 117 F. 448, 461 (8th Cir. 1902)); Pamela R.,884 N.Y.S.2d at 328 ("the best rule of thumb fordistinguishing between criminal and civil contemptsis that if the respondent ’holds the keys to the jailcell in his hands,’ then it is a civil contempt").Nothing could be further from the truth.

2O

A civil contemnor who does not have the presentability to pay "does not have the ’keys to his jail’;what is nominally a civil contempt proceeding is infact a criminal proceeding -- the defendant is notbeing coerced, but punished." Mead y. Batcl~lor, 460N.W.2d 493, 496 (Mich. 1990) (citation omitted); seealso Walker v. McLain , 768 F.2d 1181, 1184 (10thCir. 1985) (noting that if a contemnor is trulyindigent, "his liberty interest is no more conditionalthan if he were serving a criminal sentence");McBride y. McBride, 431 S.E.2d 14, 19 (N.C. 1993)("the facts of the present case illustrate that trialcourts do not always make such a determination [ofthe present ability to pay] prior to ordering theincarceration of a civil contemnor"). Despiteindigence being a complete defense to a civilcontempt charge, a defendant bears virtually theentire evidentiary burden without the skills orknowledge to master it. Ridgway, 720 F.2d at 1414("The indigent who appears without a lawyer can becharged neither with knowledge that he has such aburden nor with an understanding of how to satisfyit."). See also Argersinger, 407 U.S. 25 at 30 (’"He isunfamiliar with the rules of evidence. Left withoutthe aid of counsel he may be . convicted uponincompetent evidence, or evidence irrelevant to theissue or otherwise inadmissible."’) (quoting Powe11,287 U.S. at 68-69).

Amicus’s Right to Counsel Committee spent fouryears investigating infirmities in the Americanjudicial system regarding the constitutional right tocounsel as applied, and supplemented its findings in2010 due to a growing awareness that the minorityStates have created "de £acto ’debtor’s prisons’ in

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which individuals too poor to pay their fines or court-ordered obligations are incarcerated based on theirinability to pay, without being afforded theopportunity to be represented by counsel." See TheConstitution Project, Right to Counsel Committee,JUSTICE DENIED: AMERICA’S CONTINUING NEGLECT OFOUR CONSTITUTIONAL RIGHT TO COUNSEL,Recommendation 23 (June 28, 2010), http://www.constitutionproject.org/manage/file/416.pdf.

"Indigent" and "obdurate" are not synonymousterms. Even so, Mr. Turner and thousands like himhave been incarcerated without any reasonableopportunity to mount a defense. Modern daydebtor’s prisons are being increasingly used to"coerce" indigent people who are unable to pay theirdebts. Because in recent years, courts have beenmore frequently called upon to assist in casesinvolving consumer debt, the concept of "debtors’prisons" lately has received much broader attention.See, e.g., Editorial, The New Debtors" Prisons, N.Y.Times, Apr. 6, 2009, available at http://www.nytimes.eom/2009/04/06/opinion/06mon4.html (callingthe practice ’%arbaric and unconstitutional"); seealso Chris Serres and Glenn Howatt, In jail for beingin debt, Minneapolis Star Tribune, June 9, 2010,available at http://www.star tribune.com/local/95692619.html (describing their analysis that inMinnesota, "the use of arrest warrants againstdebtors has jumped 60 percent over the past fouryears, with 845 cases in 2009"); Editorial, Peoplefind themselves arrested -- and in jail -- because theyowe money, Las Vegas Sun, June 14, 2010, availableat http://www.lasvegassun.comlnews/20100un/14/de

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btors-prisons! (calling for "an end to this despicablepractice").

Florida, one of the minority States that do notrecognize a right to counsel in civil contemptproceedings, has also "resurrected the de £actodebtor’s prison" and has jailed hundreds of people forfailing to pay their debts. See Editorial, Debtors’prison -- again, St. Petersburg Times, Apr. 14, 2009,available at http://www, tampabay.com/opinion]editorials/article991963.ece.

In reality, de £acto debtors’ prisons existed forcivil contemnors who were unable to pay long beforethe present economic difficulties in the United Statesmade their concept interesting editorial copy. Andthey will continue to exist for as long as "poverty ispunished among us as a crime." Samuel Johnson,Idler Essay No. 22, Sept. 16, 1758 (opining thatpoverty should be treated with the same lenity asother crimes; rather than leaving the debtorlanguishing in a debtor’s prison, the onus must be onthe creditor to prove the debtor’s assets).

As Mr. Turner’s case exemplifies, indigentdefendants in the minority States have no right toappointed counsel, have no means of understandinghow to put on a defense, and are vulnerable tomaking admissions against their own interests incourt. Moreover, the proceedings are so streamlinedthat no true evidentiary hearing takes place todetermine indigence. They are, in effect, punishedfor their poverty. Despite this, the South CarolinaSupreme Court authorizes no "constitutionalsafeguards" for accused civil contemnors, explaining

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the difference between "civil" and "criminal"contempt as follows:

A contemnor imprisoned for civil contemptis said to hold the keys to his cell becausehe may end the imprisonment and purgehimself of the sentence at any time bydoing the act he had previously refused todo. This distinction between civil andcriminal contempt is crucial becausecriminal contempt triggers additionalconstitutional safeguards.

Turner, 691 S.E.2d at 472 (citing Poston, 502 S.E.2dat 88 (emphasis added; internal citations omitted).

Mr. Turner deserved the right to counsel beforespending a year in the South Oconee DetentionCenter. Civil contemnors only hold the keys to theircell doors when they have the present ability topurge their contempt. In many cases, indigentcontemnors have neither resources to purge theircontempt nor knowledge of the judicial system toprove their indigence. Their only choice is tolanguish in jail -- a 21st century form of debtors’prison -- until the passage of time allows for theirrelease. This is punitive, not coercive, and the Courtshould take this opportunity to clarify that adefendant is entitled to counsel in any proceedingresulting in a loss of liberty without regard towhether the proceeding is denominated "civil" or"criminal."

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CONCLUSION

For the reasons set forth above, the Petition for aWrit of Certiorari to the South Carolina SupremeCourt should be granted.

Dated: July 29, 2010

Respectfully submitted,

Virginia E. SloanPreMdentMary Schmid

David M. RaimCounsel o£Recorddraim@chadbourne.comKate McSweenyJoy L. LangfordChadbourne & Parke LLP1200 New Hampshire Ave., NWWashington, D.C. 20036(202) 974-5745

The Constitution Project1200 18th Street, N.W.Suite 1000Washington, D.C. 20005(202) 580-6923

Attorneys for Amicus Curiae