BOSTON (CN) — The U.S. Constitution doesn’t require free lawyers for the tens of thousands of people who are slapped with domestic violence restraining orders each year, the Supreme Judicial Court of Massachusetts ruled Thursday — even when violating the order means jail time.
In a decision that finds support in the Sixth Amendment and the Due Process Clause, it seems likely the court was mindful as well of the practical problems inherent in providing free attorneys for an enormous number of civil restraining-order proceedings.
There would be “almost astronomical cost and operational problems with getting counsel in all these cases,” Justice Scott Kafker worried at oral argument in October.
All across the country, restraining orders are pretty ubiquitous but in Massachusetts alone there were 27,288 requests for such orders just last year. That's: one for about every 260 people in the state in fiscal 2021.
And though the consequences can be severe — defendants can lose custody of their children or be ordered not to see them at all; be forced out of their homes; have their guns and pets taken away; and be prosecuted criminally for violating the order’s terms — there has never been a requirement that lawyers be appointed for indigent defendants in these cases.
For the vast majority of defendants, meanwhile, the ability to mount an effective defense without an attorney is unlikely. According to a 2004 study by the Massachusetts court system, 58% of defendants have less than a high-school education, 62% earn less than $10,000 a year and a whopping 86% have a substance-abuse disorder.
The case before the court involved Leon Dufresne, who was forced to move out of his rooming house in the historic mill town of Lowell after his former girlfriend, who also lived there, got an order requiring him to stay 100 yards away. One day Dufresne walked past the house and stopped for less than two minutes to talk to an old friend. When the girlfriend complained, Dufresne was charged criminally and sentenced to 18 months of probation.
On appeal, Dufresne claimed that the state shouldn’t be able to charge him criminally unless it provided him with a lawyer at the time the restraining order was issued.
Free lawyers are required in a number of civil matters, Dufresne noted, including juvenile proceedings, involuntary mental health commitments, terminations of parental rights, probation violation proceedings and sexually dangerous person determinations. Restraining order proceedings are civil as well, not criminal.
The case drew amicus briefs from a number of organizations, including a civil rights group and a women’s bar association. These briefs argue that, to be fair, both parties in a restraining order case should have a lawyer appointed if they can’t afford one.
Dufresne’s lawyer, Jennifer O’Brien, told the court that a person could be served with an order but be drunk at the time or mentally incompetent and not understand it, then unintentionally violate it and go to jail.
She also noted that many people served with an order also face a criminal prosecution for making threats, and anything they say without a lawyer in the restraining-order proceeding could be used against them later in the criminal case.
But the court was unsympathetic. Under the Sixth Amendment “the right to counsel applies only to criminal defendants,” Justice David Lowy wrote, with no colleague dissenting.
Due process may require a lawyer in certain civil cases, he added, but it doesn’t do so here.
“Even if the right to counsel were extended to civil defendants who might later face criminal charges related to a civil proceeding, we conclude that there is no violation to such right to counsel when a distinct, constitutionally permissible — albeit uncounselled — proceeding provides a predicate for an entirely different, constitutionally permissible criminal proceeding,” Lowy wrote.
“Each proceeding arises from wholly different alleged conduct,” the opinion states later, with the civil case arising from the abuse and the criminal case arising from violating the order.
Nevertheless, the practical issues were likely on the judges’ minds.
“In a better world, we’d have a lawyer in housing cases, in divorce cases, in a huge number of proceedings,” Kafker said at oral argument. “But is this case different from one where you could lose your house or your marriage could end without representation?”
And Justice Elspeth Cypher wasn’t even convinced that free attorneys would be a good idea, saying her experience in private practice was that “the introduction of attorneys often drags things out and makes things worse.” She asked O’Brien “if everybody’s getting a lawyer, could it make it worse?”
“That depends on the lawyer,” O’Brien replied.
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