In our last post, we were discussing a case argued before the U.S. Supreme Court. The controversy at the bottom of the matter involves a father who could not make his child support payments. Charged with civil contempt, the man was sent to jail a number of times, at least once for as long as a year. The objective of civil contempt is coercion, not punishment. The defendant claims his jail time was pure punishment, because he was too poor to make the support payments.
Illinois is one of many states that do not allow the court to appoint a public defender for a defendant in a civil matter. (In our case, it's the Public Defender Act that limits court-appointed lawyers to criminal matters.) In a civil contempt case, though, the defendant's liberty is at stake -- and that's why this man felt he deserved a court-appointed attorney.
An attorney could have helped him present a more convincing argument to the judge of why he should not be incarcerated. Notable legal organizations agree with him, adding that an attorney would have known better how to navigate the difficult judicial terrain in such a case and would be able to keep the defendant from harming his own case.
One organization that submitted a brief supporting this argument pointed out that a civil defendant has a more difficult burden of proof than a criminal defendant. In a criminal case, the state must prove beyond a reasonable doubt that the defendant is guilty.
In child support cases, the burden shifts to the defendant. The plaintiff doesn't need to convince the court that the defendant can pay. It's the defendant who must prove he is unable to pay.
Opposing counsel countered that these civil contempt cases are fairly simple so legal representation isn't necessary. And, there's no guarantee that the defendant won't go to jail even with representation. Organizations filing friend-of-court briefs argued that allowing only the non-custodial parent to have court-appointed counsel gives him an unfair advantage over the custodial parent. If the latter isn't entitled to an attorney and cannot afford one, the playing field isn't even.
We'll continue the discussion in our next post.
New York Times, "Justices Grapple With Issue of Right to Lawyers in Child Support Cases," Adam Liptak, 03/23/11.
Legal Information Institute, Turner v. Rogers (10-10), 03/23/11