Triaging appointed-counsel funding and pro se access to justice

University of Pennsylvania Law Review

Volumn 160, Issue 4, 2012, Pages 967-994

  Barton, Benjamin H ^a   Bibas, Stephanos ^b  

^a UNIVERSITY OF TENNESSEE   (United States)

^b UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84859563282     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Review

References (150)

1. See, e.g., LEGAL SERVS. CORP., DOCUMENTING THE JUSTICE GAP IN AMERICA 18-19 (2005) (identifying "a very serious shortage of civil legal assistance" and noting that fewer than one in five indigent defendants has access to civil legal assistance).
2. See Powell v. Alabama, 287 U.S. 45, 71 (1932) (holding that appointment of counsel is necessary in a capital case "where the defendant is. . incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like");
3. Gideon v. Wainwright, 372 U.S. 335, 341-45 (1963) (extending Powell to noncapital prosecutions);
4. Argersinger v. Hamlin, 407 U.S. 25, 37-38 (1972) (extending Gideon to any offense that results in imprisonment).
5. But see Scott v. Illinois, 440 U.S. 367, 373-74 (1979) (establishing an actual-imprisonment limitation on right to counsel).
6. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (setting the standard for ineffective assistance of counsel as "deficient" performance that actually prejudices the defendant).
7. See Ake v. Oklahoma, 470 U.S. 68, 83 (1985).
8. See, e.g., Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 31-33 (1981) (rejecting an automatic right to counsel in proceedings to terminate parental rights);
9. Vitek v. Jones, 445 U.S. 480, 497 (1980) (Powell, J., concurring in part) (deciding that qualified assistance, but not an attorney, must be provided when a prisoner faces involuntary transfer to a mental hospital);
10. Parham v. J.R., 442 U.S. 584, 606-07, 610 n.18 (1979) (holding that an impartial assessment, but not an adversarial hearing with a lawyer, is required before committing a minor to a mental hospital);
11. Goss v. Lopez, 419 U.S. 565, 583 (1975) (finding that students have no constitutional right to retain counsel in school disciplinary proceedings);
12. Wolff v. McDonnell, 418 U.S. 539, 569-70 (1974) (declining to require retained or appointed counsel in prison disciplinary proceedings);
13. see also Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 320-26 (1985) (upholding a fee limitation on attorney compensation for veterans' benefits proceedings).
14. For example, since 2006 there have been at least three civil Gideon law review symposium issues.
15. See Symposium, An Obvious Truth: Creating an Action Blueprint for a Civil Right to Counsel in New York State, 25 TOURO L. REV. 1 (2009);
16. Symposium, A Right to Counsel in Civil Cases: Civil Gideon in Maryland & Beyond, 37 U. BALT. L. REV. 1 (2007-2008);
17. Edward V. Sparer Symposium: Civil Gideon: Creating a Constitutional Right to Counsel in the Civil Context, 15 TEMP. POL. & CIV. RTS. L. REV. 501 (2006);
18. see also CLEARINGHOUSE REV., July-Aug. 2006 (dedicating an entire issue to civil Gideon laws);
19. Robert W. Sweet, Civil Gideon and Confidence in a Just Society, 17 YALE L. & POL'Y REV. 503, 505-06 (1998) (arguing for an expanded due process right to representation).
20. See STANDING COMMITTEE ON LEGAL AID & INDIGENT DEFENDANTS ET AL., AM. BAR ASS'N, REPORT TO THE HOUSE OF DELEGATES, RESOLUTION 105 (REVISED) 1 (2010), available at http://www.americanbar.org/content/dam/aba/administrative/legal- aid-indigent-defendants/ls-sclaid-105-revised-final-aug-2010.pdf. State bar associations have also chimed in.
21. See, e.g., Thomas M. Burke, A Civil Gideon? Let the Debate Begin, 65 J. MO. B. 5, 5 (2009) (advocating appointing counsel in civil proceedings where "basic human needs are at stake");
22. Diane S. Diel, Speaking for the Justice System, WIS. LAW., Dec. 2008, at 5, 5 (describing an inquiry by bar association presidents to then-President-Elect Barack Obama as to his intentions to establish a federal civil Gideon);
23. Scott Russell, Minnesota's Legal Safety Net: Many Hands Intertwined, 66 BENCH & B. MINN., Mar. 009, at 22, 25 (2009) (discussing civil Gideon as the latest advocacy response to the shortage of resources for indigent litigants);
24. State Bar Signs on to Letter to Obama, McCain, MONT. LAW., Nov. 2008, at 11, 11 (encouraging presidential candidates to embrace an expanded right to counsel).
25. For example, the Supreme Court included a long, supportive quotation from the ABA in extending Gideon to misdemeanor cases in Argersinger v. Hamlin, 407 U.S. 25, 39 (1972).
26. 131 S. Ct. 2507, 2512 (2011).
27. For a partial list of the amicus briefs filed in Turner v. Rogers in support of a civil Gideon right, see infra note 76.
28. Turner, 131 S. Ct. at 2512.
29. See Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 35 (1981)
30. (Blackmun, J., dissenting) ("[T]he Court avoids what seems to me the obvious conclusion that due process requires the presence of counsel for a parent threatened with judicial termination of parental rights, and, instead, revives an ad hoc approach thoroughly discredited nearly 20 years ago in Gideon v. Wainwright.").
31. Id. at 26-27, quoted in Turner, 131 S. Ct. at 2516. For example, the legal blog Concurring Opinions hosted a post-Turner symposium that largely condemned the civil Gideon portion of the case.
32. See Archive for the Turner Symposium, CONCURRING OPINIONS, http://www.concurringopinions.com/archives/category/symposium-turner-v-rogers (last visited Jan. 15, 2012).
33. 131 S. Ct. at 2519.
34. Starting with Powell v. Alabama and continuing through to Gideon and Argersinger, the Supreme Court has treated the availability of a lawyer as an unqualified good and a necessary ingredient of fair judicial procedures.
35. For a discussion of some of this case law, see BENJAMIN H. BARTON, THE LAWYER-JUDGE BIAS IN THE AMERICAN LEGAL SYSTEM 54-60 (2011).
36. See Powell v. Alabama, 287 U.S. 45, 73 (1932).
37. See, e.g., Martinez-Macias v. Collins, 979 F.2d 1067, 1067-68 (5th Cir. 1992) (overturning death sentence on federal habeas petition based on ineffective assistance of counsel where counsel was paid $11.84 per hour and "the justice system got only what it paid for");
38. Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 YALE L.J. 1835, 1838, 1853, 1868 (1993) (collecting examples of inadequate compensation for indigent defense, with some rates as low as $4.05 per hour);
39. Adam M. Gershowitz, Statewide Capital Punishment: The Case for Eliminating Counties' Role in the Death Penalty, 63 VAND. L. REV. 307, 323-26 (2010) (describing egregious examples of inadequate, incompetent, and underpaid indigent defense).
40. See Paul C. Giannelli, Daubert and Forensic Science: The Pitfalls of Law Enforcement Control of Scientific Research, 2011 U. ILL. L. REV. 53, 76-77 & n.158 (noting underfunding of expert assistance for indigent defendants and arguing that "the asymmetry in resources is pronounced").
41. See Cara H. Drinan, The Revitalization of Ake: A Capital Defendant's Right to Expert Assistance, 60 OKLA. L. REV. 283, 288-96 (2007) (describing a variety of statutory and judicial hurdles that contribute to a pervasive lack of expert assistance in capital cases).
42. See Stephen B. Bright, Legal Representation for the Poor: Can Society Afford This Much Injustice?, 75 MO. L. REV. 683, 690 (2010) (explaining the ad hoc system of judicially appointing capital defense attorneys and the resulting perverse incentives for lawyers who depend on judges for their income).
43. Phan v. State, 699 S.E.2d 9, 10-11 (Ga. 2010);
44. Weis v. State, 694 S.E.2d 350, 353-58 (Ga. 2010). For a gripping overview of the logical and legal gymnastics in these opinions, see Bright, supra note 24, at 691-97.
45. LESLIE A. HARRIS, AM. BAR ASS'N, REPORT TO THE HOUSE OF DELEGATES 4 (1997), available at http://www.americanbar.org/content/dam/aba/migrated/ legalservices/downloads/sclaid/20110325-aba-107.authcheckdam.pdf.
46. See Ruth E. Friedman & Bryan A. Stevenson, Solving Alabama's Capital Defense Problems: It's a Dollars and Sense Thing, 44 ALA. L. REV. 1, 26-32 (1992) (describing these pervasive inadequacies in Alabama).
47. For example, the Justice for All Act of 2004 offers federal funding to improve state capital defense. Justice for All Act of 2004 §§ 421-422, 42 U.S.C. §§ 14163-14163a (2006).
48. See Ronald F. Wright, Parity of Resources for Defense Counsel and the Reach of Public Choice Theory, 90 IOWA L. REV. 219, 230 (2004) ("By and large, entry-level prosecutors earn higher salaries than entry-level public defenders. The salary differences persist at every level of experience. . .").
49. Darryl K. Brown, Epiphenomenal Indigent Defense, 75 MO. L. REV. 907, 912-13 (2010);
50. see also STANDING COMM. ON LEGAL AID & INDIGENT DEFENDANTS, AM. BAR ASS'N, GIDEON' S BROKEN PROMISE: AMERICA'S CONTINUING QUEST FOR EQUAL JUSTICE 9-10 (2004) [hereinafter GIDEON' S BROKEN PROMISE] (cataloguing reported instances of inadequate attorney compensation in various jurisdictions).
51. State v. Peart, 621 So. 2d 780, 789 (La. 1993) (quoting trial judge).
52. See Alexandra Natapoff, Speechless: The Silencing of Criminal Defendants, 80 N.Y.U. L. REV. 1449, 1462-63 (2005) (noting the mistrust of public defenders and explaining that it exacerbates this "not uncommon. . 'meet 'em and plead 'em' scenario").
53. See NAT'L ASS'N OF CRIMINAL DEF. LAWYERS, LOW-BID CRIMINAL DEFENSE CONTRACTING: JUSTICE IN RETREAT 1 (1997).
54. NAT'L RIGHT TO COUNSEL COMM., THE CONSTITUTION PROJECT, JUSTICE DENIED: AMERICA'S CONTINUING NEGLECT OF OUR CONSTITUTIONAL RIGHT TO COUNSEL 7 (2009) (noting that inadequate funding leads to "astonishingly large caseloads" and "second-rate legal services").
55. See Note, Effectively Ineffective: The Failure of Courts to Address Underfunded Indigent Defense Systems, 118 HARV. L. REV. 1731, 1741 (2005) (noting that even three widely celebrated litigation success stories reflect "judicial reluctance to undertake sustainable systemic indigent defense reform").
56. But cf. Cara H. Drinan, The Third Generation of Indigent Defense Litigation, 33 N.Y.U. REV. L. & SOC. CHANGE 427, 462-63 (2009) (acknowledging the mixed record of success of these suits but expressing optimism about future strategies focusing on indigent defense litigation in federal court).
57. 407 U.S. 25, 37-40 (1972).
58. See Erica J. Hashimoto, The Price of Misdemeanor Representation, 49 WM. & MARY L. REV. 461, 477 (2007) (reporting estimates that, since 1972, 690,000 felony cases and up to 2.7 million misdemeanor cases per year required appointed counsel).
59. 535 U.S. 654, 658, 674 (2002).
60. See Michael Pearson, Judge: Fulton Must Cut Jail Load, ATLANTA J.-CONST., Apr. 17, 2002, at 1B, available at 2002 WLNR 4649292 (reporting that "lengthy delays in processing suspects accused of minor crimes is one of the main reasons the county jail is overcrowded" and that "[s]ome [inmates] now go months before they are even arraigned" and receive lawyers). In Mississippi in 2003, a man charged with resisting arrest spent two-and-a-half months in the county jail before he saw a lawyer.
61. Adam Liptak, County Says It's Too Poor to Defend the Poor, N.Y. TIMES, Apr. 15, 2003, at A1. The maximum punishment for resisting arrest in Mississippi is six months in jail and a fivehundred dollar fine. MISS. CODE ANN. § 97-9-73 (West 2005).
62. See MILTON HEUMANN, PLEA BARGAINING: THE EXPERIENCES OF PROSECUTORS, JUDGES, AND DEFENSE ATTORNEYS 70, 72, 81 (1978).
63. Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 COLUM. L. REV. 1655, 1709 (2010). This concern is not new. In Argersinger, the Court warned of the dangers of "assembly-line justice" and plea mills for misdemeanor defendants.
64. See Argersinger v. Hamlin, 407 U.S. 25, 34-36 (1972).
65. LEGAL SERVS. CORP., DOCUMENTING THE JUSTICE GAP IN AMERICA 3 (updated ed. 2009), available at http://www.lsc.gov/sites/default/files/LSC/pdfs/ documenting-the-justice-gap-in-america-2009.pdf.
66. See DEBORAH L. RHODE, ACCESS TO JUSTICE 13-14 (2004).
67. The House Appropriations Committee proposed a $104 million funding cut for the LSC for Fiscal Year 2012, a 26% reduction in funding from 2011. See Press Release, Legal Servs. Corp., House Proposal Would Cut Civil Legal Aid by $104 Million (July 6, 2011), available at http://www.lsc.gov/media/press- releases/house-proposal-would-cutcivil-legal-aid-104-million.
68. Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
69. Sandoval v. Rattikin, 395 S.W.2d 889, 893-94 (Tex. Civ. App. 1965), cert. denied, 385 U.S. 901 (1966).
70. Note, The Indigent's Right to Counsel in Civil Cases, 76 YALE L.J. 545, 549 (1967).
71. See, e.g., Francis William O'Brien, Why Not Appointed Counsel in Civil Cases? The Swiss Approach, 28 OHIO ST. L.J. 1, 13 (1967) (querying why Americans' constitutional sensibilities "dull when innocent people are made to suffer by unjust decisions in civil cases");
72. Note, The Emerging Right of Legal Assistance for the Indigent in Civil Proceedings, 9 U. MICH. J.L. REFORM 554, 556 (1976) (arguing that "logic indicates that civil property rights should receive the same protection" as "life and liberty");
73. Note, The Indigent's Right to Counsel in Civil Cases, 43 FORDHAM L. REV. 989, 997 (1975) (suggesting one "instance where constitutional rights may be violated by the failure to appoint counsel in civil litigation");
74. Note, The Right to Counsel in Civil Litigation, 66 COLUM. L. REV. 1322, 1331 (1966) ("[T]he inability of the unskilled litigant. . seems no less debilitating in most civil litigation.").
75. See 387 U.S. 1, 41 (1967).
76. 407 U.S. 25, 37 (1972).
77. See, e.g., In re Smiley, 330 N.E.2d 53, 56-57 (N.Y. 1975) (holding that indigent wives in divorce proceedings have no right to publicly compensated counsel and that the issue is more appropriate for legislative resolution).
78. For a helpful overview of the pre-Lassiter cases and the difficulty in squaring them, see Turner v. Rogers, 131 S. Ct. 2507, 2516-17 (2011).
79. Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 20-21 (1981).
80. See HOWARD H. DANA, AM. BAR ASS'N, REPORT TO THE HOUSE OF DELEGATES, RESOLUTION 112A, at 10, available at http://www.americanbar.org/content/dam/aba/ administrative/legal-aid-indigent-defendants/ls-sclaid-06A112A.pdf ("For over two decades, the Lassiter decision appeared to paralyze serious consideration of a right to counsel in civil cases.").
81. See, e.g., Laura K. Abel, A Right to Counsel in Civil Cases: Lessons from Gideon v. Wainwright, 15 TEMP. POL. & CIV. RTS. L. REV. 527, 531-34 (2006)
82. (asserting that Lassiter, like Betts v. Brady before it, should be overturned);
83. Russell Engler, Shaping a Context-Based Civil Gideon from the Dynamics of Social Change, 15 TEMP. POL. & CIV. RTS. L. REV. 697, 712 (2006) (arguing that certain private custody cases "are strong starting points for civil Gideon strategies");
84. Sarah Paoletti, Deriving Support from International Law for the Right to Counsel in Civil Cases, 15 TEMP. POL. & CIV. RTS. L. REV. 651, 654, 657, 659-60 (2006) (arguing that treaties and international norms support a U.S. right to counsel in civil proceedings).
85. For example, the ABA advocates both additional funding for indigent defense and civil Gideon. See RICHARD KLEIN & ROBERT SPANGENBERG, AM. BAR ASS'N, THE IN DIGENT DEFENSE CRISIS 8 (1993) (reporting on severe under-funding of appointed criminal defense in the United States); infra note 76 and accompanying text.
86. Argersinger, the case that expanded Gideon to misdemeanor prosecutions, did explicitly discuss the availability of lawyers to staff misdemeanor cases. See 407 U.S. 25, 37 n.7 (1972) (using nationwide statistics to counter the fear noted in Justice Powell's concurrence that there were insufficient attorneys to represent misdemeanor defendants). The majority did not address the cost of these additional lawyers, however. See id.
87. Act of Oct. 11, 2009, 2009 Cal. Stat. 2498 (codified in scattered sections of CAL. BUS. & PROF. CODE and CAL. GOV'T CODE);
88. see also Tamara Audi, 'Civil Gideon' Trumpets Legal Discord, WALL ST. J., Oct. 27, 2009, at A3 (describing the funding for the California law).
89. See, e.g., Brief of Amicus Curiae American Bar Association in Support of Petitioner at 8, Turner v. Rogers, 131 S. Ct. 2507 (2011) (No. 10-10);
90. Brief of Center for Family Policy & Practice as Amicus Curiae in Support of Petitioner at 2-3, Turner, 131 S. Ct. 2507 (No. 10-10);
91. Brief of Amicus Curiae the Constitution Project in Support of Petitioner at 9-12, Turner, 131 S. Ct. 2507 (No. 10-10);
92. Brief of the Legal Aid Society of the District of Columbia et al. as Amici Curiae in Support of Petitioner at 8, Turner, 131 S. Ct. 2507 (No. 10-10);
93. Brief Amici Curiae of the National Association of Criminal Defense Lawyers et al. in Support of Petitioner at 5, Turner, 131 S. Ct. 2507 (No. 10-10);
94. Brief of Elizabeth G. Patterson et al. as Amici Curiae in Support of Petitioner at 10, Turner, 131 S. Ct. 2507 (No. 10-10).
95. Turner, 131 S. Ct. at 2518.
96. Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 325 (1985)
97. (quoting Henry J. Friendly, "Some Kind of Hearing," 123 U. PA. L. REV. 1267, 1288 (1975)) (internal quotation marks omitted);
98. see also Gagnon v. Scarpelli, 411 U.S. 778, 787-88 (1973) (explaining that the addition of defense attorneys in revocation proceedings could sacrifice the system's "informality, flexibility, and economy").
99. Turner, 131 S. Ct. at 2519-20.
100. See JOHN H. LANGBEIN, THE ORIGINS OF ADVERSARY CRIMINAL TRIAL 16-17 (2003) (noting that before the advent of the adversarial system, trials took fifteen to thirty minutes);
101. see also John H. Langbein, Understanding the Short History of Plea Bargaining, 13 LAW & SOC'Y REV. 261, 262-65 (1979) (describing how summary jury trials in the eighteenth century processed many more cases than modern courts without the constraints of procedure or presence of counsel).
102. Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963)
103. (quoting Powell v. Alabama, 287 U.S. 45, 69 (1932)) (internal quotation marks omitted).
104. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 344 (1976) (emphasizing that rules should be "shaped by. . The generality of cases, not the rare exceptions").
105. See Brief for Petitioner at i, 27-51, Turner, 131 S. Ct. 2507 (No. 10-10);
106. Brief of Respondents at 65, Turner, 131 S. Ct. 2507 (No. 10-10) (noting that "petitioner's merits brief explicitly asks for 'a categorical right to counsel, not merely a case-by-case right that depends on the merit or complexity of the case'"
107. (quoting Brief for Petitioner, supra, at 50 n.24)).
108. Turner, 131 S. Ct. at 2524-25 (Thomas, J., dissenting).
109. see also Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 31-32 (1981) ("[N]either can we say the Constitution requires the appointment of counsel in every parental termination proceeding.").
110. Lassiter, 452 U.S. at 32-34.
111. Powell v. Alabama, 287 U.S. 45, 68-69 (1932).
112. Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
113. The Court followed this language with a long quotation of "the moving words of Mr. Justice Sutherland in Powell v. Alabama." Id.
114. Miranda v. Arizona, 384 U.S. 436, 471 (1966).
115. For example, the Court overturned lower court decisions offering lawyers special protections from facially neutral statutes in a pair of 2010 cases. See Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S. Ct. 1605, 1622 (2010) (holding that a debt-collecting lawyer's duty to comply with the Fair Debt Collection Practices Act overrides the ethical duty to advance his client's interests);
116. Milavetz, Gallop & Milavetz P.A. v. United States, 130 S. Ct. 1324, 1331-33 (2010) (rejecting the argument that the federal prohibition on debt-relief agencies advising clients to incur more debt before filing for bankruptcy does not apply to law firms).
117. Similarly, in Montejo v. Louisiana, the Court held that police officers could contact criminal defendants after the appointment of counsel. 129 S. Ct. 2079, 2087 (2009). In so holding, the Court explicitly rejected arguments based upon the sanctity of the lawyer-client relationship and the existence of an ABA Model Rule of Professional Conduct barring contact with represented parties. Id. As the Court put it, "[T]he Constitution does not codify the ABA's Model Rules, and does not make investigating police officers lawyers." Id.
118. See Gillian Hadfield, A Case for Legal Aid at Wal-Mart, WASH. POST, Mar. 12, 2010, at A17.
119. See CYNTHIA GRAY, AM. JUDICATURE SOC'Y & STATE JUSTICE INST., REACHING OUT OR OVERREACHING: JUDICIAL ETHICS AND SELF-REPRESENTED LITIGANTS (2005). The report presents a list of commonsense steps that judges may take to help pro se litigants, and contains a section on "Proposed Best Practices." Id. at 51-57. These include making procedural accommodations, being courteous, avoiding legal jargon and procedural snafus, explaining the process, avoiding over-familiarity with lawyers in the courtroom, and training court staff to provide patient and helpful service to selfrepresented litigants. Id.
120. See THE SELF-REPRESENTED LITIG. NETWORK, CORE MATERIALS ON SELFREPRESENTED LITIGATION INNOVATION (2006) (listing articles and websites that provide information and research on pro se litigation).
121. RICHARD ZORZA, NAT'L CTR. FOR STATE COURTS, THE SELF-HELP FRIENDLY COURT: DESIGNED FROM THE GROUND UP TO WORK FOR PEOPLE WITHOUT LAWYERS (2002), available at http://www.ncsconline.org/WC/Publications/Res-ProSe-SelfHelpCtPub. pdf. The Preface, written by the Chief Justice of the California Supreme Court, chronicles California's recent efforts to improve pro se court access, including a nine-hundredpage self-help guide on its website for pro se litigants that is visited over 100,000 times per month. Id. at 7-8. AJS even has an online forum dedicated to pro se issues. Pro Se Forum, AM. JUDICATURE SOC'Y, http://www.ajs.org/prose/home.asp (last visited Jan. 15, 2012);
122. see also Richard Zorza, Self-Represented Litigants and the Access to Justice Revolution in the State Courts: Cross-Pollinating Perspectives Toward a Dialogue for Innovation in the Courts and the Administrative Law System, 29 J. NAT'L ASSOC. ADMIN. L. JUDICIARY 63, 68-74 (2009) (describing various courts' efforts to expand access to justice including self-help centers, simplifying forms, improving technological availability, staff training, and others).
123. See, e.g., Ronald W. Staudt & Paula L. Hannaford, Access to Justice for the Self-Represented Litigant: An Interdisciplinary Investigation by Designers and Lawyers, 52 SYRACUSE L. REV. 1017, 1029-41 (2002) (listing primarily technical solutions proposed by design and law students after observing problems in self-represented litigation).
124. See, e.g., About Us, CASA FOR CHILDREN, http://www.casaforchildren.org/ site/c.mtJSJ7MPIsE/b.5301303/k.6FB1/About-Us-CASA-for-Children.htm (last visited Jan. 15, 2012) (describing a program of citizen advocates who help place abused children in new homes).
125. Turner v. Rogers, 131 S. Ct. 2507, 2519 (2011).
126. See Lois Bloom & Helen Hershkoff, Federal Courts, Magistrate Judges, and the Pro Se Plaintiff, 16 NOTRE DAME J.L. ETHICS & PUB. POL'Y 475, 493-97 (2002) (detailing the New York program);
127. see also Anita Davis, A Pro Se Program That Is Also "Pro" Judges, Lawyers, and the Public, 63 TEX. B.J. 896, 896 (2000) (describing how Bexar County civil courts employ a staff attorney to assist courts and pro se litigants in preparing dockets, coordinating mediation and litigation, and answering general questions).
128. Turner, 131 S. Ct. at 2519. Ossification would be especially unfortunate because the Court, reaching the issue sua sponte, did not have the benefit of research or briefing on the various procedures with which states are experimenting to facilitate pro se access to civil justice.
129. For example, Miranda warnings were supposed to be only one way of preventing compelled self-incrimination, but the Court's imprimatur has made them universal. See Miranda v. Arizona, 384 U.S. 436, 444 (1966) (requiring the now-famous Miranda warnings "unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it");
130. Dickerson v. United States, 530 U.S. 428, 443-44 (2000) (concluding that "Miranda announced a constitutional rule that Congress may not supersede legislatively" partially because "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture").
131. See generally JOHN HENRY MERRYMAN & ROGELIO PEREZ-PODOMO, THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEMS OF EUROPE AND LATIN AMERICA 34-38 (3d ed. 2007) (contrasting the role of the judge in common law and civil law courts).
132. In Turner, for example, while the child support court found Turner in contempt, the judge did not indicate on the preprinted contempt-of-court form whether "he was or was not gainfully employed, nor whether he had the ability to make these support payments when due." 131 S. Ct. at 2514.
133. Findings of fact are important to permit meaningful appellate review of the lower court's holding and reasoning. In Turner, civil contempt required a showing of a willful refusal to pay, but there was no explicit finding on that issue. Id. at 2513.
134. See, e.g., Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 326 (1985) (giving "great weight" to the government's interest in avoiding increased administrative costs for veterans' hearings);
135. Gagnon v. Scarpelli, 411 U.S. 778, 788 (1973) (citing the "financial cost to the State" of requiring appointed counsel).
136. See S. REP. NO. 98-387, at 23 (1984) (explaining that Congress does not intend to provide federal matching for expenditures in child support-enforcement programs for providing defense counsel to indigent parents);
137. see also 45 C.F.R. § 304.23(i)-(j) (2010) (barring expenditure of federal funds for indigent defense counsel or costs relating to jailing parents in child support enforcement);
138. Child Support Enforcement Program; Prohibition of Federal Funding of Costs of Incarceration and Counsel for Indigent Absent Parents, 52 Fed. Reg. 32,130, 32,130 (Aug. 26, 1987) (codified at 45 C.F.R. pt. 304) (including certain expenses-such as providing defense counsel to indigent parents- in list of expenditures for which federal funds are not available).
139. See, e.g., S.C. APP. CT. R. 608(g)(1) (granting state judges discretion in appointing counsel but cautioning that "[t]he unnecessary appointment of lawyers. . places an undue burden on the lawyers of this State")
140. Ex parte Foster, 565 S.E.2d 290, 293 (S.C. 2002) (remanding for a determination of whether the action was "so complex" that failing to appoint a lawyer would "unfairly hamper [respondent's] ability to defend his case").
141. Cf. Turner v. Rogers, 131 S. Ct. 2507, 2520 (2011) ("[T]he average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel."
142. (quoting Johnson v. Zerbst, 304 U.S. 458, 462-63 (1938) (emphasis added by the Court in Turner)).
143. See D. James Greiner & Cassandra Wolos Pattanayak, Randomized Evaluation in Legal Assistance: What Difference Does Representation (Offer and Actual Use) Make?, 121 YALE L.J. (forthcoming 2012) (manuscript at 56), available at http://ssrn.com/abstract=1708664 (describing previous studies as "unworthy of credence" and observing that "the only way to produce credible quantitative results. . is with randomized trials").
144. See Pasqua v. Council, 892 A.2d 663, 674 (N.J. 2006)
145. (grounding this right in the Fourteenth Amendment's Due Process Clause), abrogated by Turner v. Rogers, 131 S. Ct. 2507 (2011).
146. See Brief of Senators DeMint et al. as Amici Curiae in Support of Respondents at app. 8a, Turner, 131 S. Ct. 2507 (No. 10-10) (reporting data collected by the Office of Child Support Enforcement at the U.S. Department of Health and Human Services from states' child support-enforcement authorities, including New Jersey's).
147. See Commonwealth v. $9,847.00 U.S. Currency, 704 A.2d 612, 615-17 (Pa. 1997) (acknowledging "a presumption" that "an indigent litigant has a right to appointed counsel. . when, if he loses, he may be deprived of his physical liberty"
148. (quoting Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 26-27 (1981)) (internal quotation marks omitted)).
149. See, e.g., Application for Extraordinary Relief Under Pa. R.A.P. § 3309 and King's Bench Powers at 10, Cepeda v. Court of Common Pleas, No. 128 MM 2009, slip op. (Pa. June 24, 2010) (claiming that eight indigent petitioners were imprisoned for contempt after allegedly failing to pay child support, without being represented by counsel or informed they had a right to counsel);
150. REBECCA MAY & MARGUERITE ROULET, CTR. FOR FAMILY POLICY & PRACTICE, A LOOK AT ARRESTS OF LOW-INCOME FATHERS FOR CHILD SUPPORT NONPAYMENT: ENFORCEMENT, COURT AND PROGRAM PRACTICES 45 (2005), available at http://www.cprmn.org/Documents/noncompliance.pdf.