Fed gov't agencies warn state courts about right to counsel obligations

03/21/2016, Miscellaneous, Civil Contempt in Family Court

On March 14, 2016, the Department of Justice issued a press release announcing a package of resources to assist state and local courts with handling cases where indigent litigants are jailed for failing to pay fees and fines.  Included in this package was a Dear Colleague letter addressed to state and local courts that covered those courts' responsibilities with respect to right to counsel:


[C]ourts must ensure defendants’ right to counsel in appropriate cases when enforcing fines and fees. Failing to appear or to pay outstanding fines or fees can result in incarceration, whether through the pursuit of criminal charges or criminal contempt, the imposition of a sentence that had been suspended, or the pursuit of civil contempt proceedings. The Sixth Amendment requires that a defendant be provided the right to counsel in any criminal proceeding resulting in incarceration, see Scott v. Illinois, 440 U.S. 367, 373 (1979); Argersinger v. Hamlin, 407 U.S. 25, 37 (1972), and indeed forbids imposition of a suspended jail sentence on a probationer who was not afforded a right to counsel when originally convicted and sentenced, see Alabama v. Shelton, 535 U.S. 654, 662 (2002). Under the Fourteenth Amendment, defendants likewise may be entitled to counsel in civil contempt proceedings for failure to pay fines or fees. See Turner, 131 S. Ct. at 2518-19 (holding that, although there is no automatic right to counsel in civil contempt proceedings for nonpayment of child support, due process is violated when neither counsel nor adequate alternative procedural safeguards are provided to prevent incarceration for inability to pay).


On March 21, 2016, the Office of Child Support Enforcement issued its own Dear Colleague letter that referenced the DOJ letter and noted the applicability of the right to counsel language to child support enforcement proceedings.