Child Support: Criminalizing Poor Fathers
Walter Scott of North Charleston, South Carolina, died because he could not pay his child support. An African American man, he ran away from a police officer who had stopped him for driving while black. He ran because he was terrified he would be jailed for being delinquent in paying child support. He was unarmed, and the police officer shot him in the back.
Imprisoning people delinquent on child support payments is a more complicated form of debtors’ prisons. The state’s interest in squeezing fines and fees from low-income people when they have committed a minor infraction is hardly compelling, although fines and fees set at reasonable levels for real offenses from people who can pay are not problematic. But in general the loss to the state in not collecting a fee to finance its court system is only a loss of revenue for the state.
By contrast, the nonpayment of child support is typically a loss of revenue to a child. (There are still instances when child support money goes to the state and not the child).1 A parent who can afford to pay child support and fails to do so is reneging on a fundamental responsibility. To put a “deadbeat dad” in jail—it is usually the father—for not paying when he could pay is a proposition hardly anyone would oppose.2 But it is useless and almost inevitably destructive to imprison a man who cannot meet his obligation.
Child support is vital. It lifts about one million people out of poverty. In 2014, the federal Child Support Enforcement program alone collected $28.2 billion in child support payments for families.3 In 2011, child support constituted 17 percent of the income of those mothers receiving it. Child support received by custodial parents with incomes below the poverty line accounted for a whopping 52 percent of their income.4 Child support is a powerful anti-poverty strategy.
Constitutional law and federal policy mandate that a noncustodial parent who does not have the ability to pay child support may not be incarcerated. As Vicki Turetsky, President Obama’s commissioner of the federal Office of Child Support Enforcement, says, “Every parent has a responsibility to support their kids to the best of their ability,” but quickly adds, “Jail is appropriate for someone who is actively hiding assets, and not appropriate for someone who couldn’t pay the order in the first place.”5 Yet a number of states and individual judges still send indigent parents owing child support to jail, either by ignoring the law or by finding ability to pay where it does not exist. In addition, in many states, arrears in child support payments mount up while a parent is in prison for a crime other than owing child support.
A proper approach begins with figuring out how much a low-income parent can pay, if anything at all. His obligation should be fairly calculated and not impossible to meet from the outset; many fathers are doomed to be jailed because the calculation was unreasonable from the start.6 A separate challenge is how to get more states to stop allowing the mounting up of charges during incarceration. Fathers should also be provided a lawyer for court hearings on payment of child support; those who do are much more likely to be able to prove their indigence. Since a considerable number of states criminalize nonpayment with incarceration, the liberty of a father in a child support hearing is often at risk—typically the standard for requiring a lawyer.
The incidence of indigence among fathers is very large. The Urban Institute studied nine states in 2007 and found that 70 percent of child support debt was owed by people with incomes of less than $10,000. Yet in many states the obligation to pay is based on an assumption that the father has a full-time minimum-wage or even median-wage job. As a result, low-income fathers were being expected to pay an average of 83 percent of their income for child support.7
And, because child support payments in fourteen states do not pause for incarceration, fathers with child support orders go into prison owing an average of $10,000 and come out owing an average of $20,000, plus interest and penalties.8 What we hope to achieve by criminalizing the poverty of fathers in this way is not clear. But it is clear that this approach makes a bad situation worse and does little to help the children who are not receiving the support due them.
Vicki Turetsky, the federal commissioner, says that in general, state child support guidelines for parent payments are moving in a constructive direction. Most states now take into account the income of both parents in setting court orders, which is more realistic. But the problems continue for low-income parents, because some states still base child support obligations on “imputed” incomes—assumed or fictitious income—rather than evidence of an actual ability to pay, even though ability to pay is the federal law. This results in unsustainable payments, uncollectible debt, illegal income generation, reduced parental contact, and jail.
“Parents who are truly destitute go to jail over and over again for child support simply because they’re poor,” Sarah Geraghty of the Southern Center for Human Rights says.9 “You see a room full of indigent parents—most of them African American—and you have a judge and attorney general, both of whom are white. The hearings often take only 15 seconds. The judge asks, ‘Do you have any money to pay?’ The person pleads and the judge says, ‘OK you’re going to jail.’ ”10
In 2002, Elaine Sorensen of the Urban Institute analyzed data from the U.S. Bureau of Justice Statistics and concluded that nationally about ten thousand men are in jail for falling behind in their child support obligations. A 2009 survey in South Carolina showed that one out of every eight inmates in the state was there because he could not pay child support. In 2010 in Georgia, 3,500 parents were jailed for nonpayment of child support. Not surprisingly, those two states are among the fourteen that do not allow a pause in the growing obligation while fathers are incarcerated for committing an unrelated crime. And the two states are among the five nationally that do not provide a lawyer—Florida, Maine, and Ohio being the others. But they are not alone in locking up men who cannot pay. The newspaper in Hackensack, New Jersey, recorded 1,800 parents jailed or put on ankle monitors in two New Jersey counties in 2013 for being delinquent on child support payments.11
Having a lawyer would make a big difference. The Supreme Court had a chance to help in 2011 in Turner v. Rogers but failed to rise to the occasion.12 Physical liberty is the most important liberty right we have. When a person is about to lose his liberty, he should be provided a lawyer if he cannot afford one. The Supreme Court did not see it that way. Technically, nonpayment of child support is not a criminal procedure; it is a civil contempt procedure. In principle, a father is being coerced to pay, not punished. In the eyes of the court, such a man has the keys to the jail in his pocket: if he pays, he gets out, so there is no need for a lawyer. But in the case of an indigent parent this is a catch-22, because he has no money. Thus he has no key to the jail in his pocket and risks being punished for his poverty by being deprived of his liberty. In reality, the situation is no different as a practical matter from the reason Gideon requires a lawyer in a criminal matter. The Court is wrong; he should have a lawyer.
The Court in Turner v. Rogers said instead that a father might be entitled to a lawyer if the other side, such as the state, has a lawyer. But if the other side—say, the mother of the children—has no lawyer, the Court says, it would be unfair to give the father one. One wonders whether it occurred to the Court that it could require lawyers for both sides.
Although it did not require the appointment of a lawyer, the Supreme Court did rule, à la Bearden, that the trial court has to allow the defendant to explain his economic situation and then determine whether the defendant has the ability to pay. (In fact, the court in this case did not do those things, so Turner won.) But no lawyer was required. I think some members of the Supreme Court, including one or more in the majority, have no idea what happens widely and routinely in courtrooms in our country. Whether the case is child support or any other of the myriad examples of debtors’ prisons, Bearden’s requirement that a defendant’s ability to pay be taken into account is a fiction in many jurisdictions. The way to put teeth into Bearden is to provide a lawyer.
Turetsky goes further, arguing that providing legal representation does not dig deeply enough. She contends that public policy and children will be better served by greatly reducing the use of civil contempt to collect child support and finding other means of getting obligations paid, such as garnishment of salary. She believes that the adversarial nature of the current process is destructive and not cost-effective. Custodial parents often shun the use of the court because of its deeply negative consequences for the noncustodial parent. In addition, court-ordered payments often bring forth payment from family members who really cannot afford it or result in new offenses to get the money. Illinois reduced its use of contempt by two-thirds and consequently increased its non-payroll-withholding collections such as tax refunds by $14.5 million between 2010 and 2013. Florida decided that civil contempt is the least cost-effective strategy, and other states are implementing or considering changes in their policies.
For very good reasons we have toughened and toughened again our policies on child support.13 The “won’t pay” fathers had a free ride for years before that. It is much harder for them to go scot-free now, with garnishment, bank account seizures, and suspension of driver’s licenses and even professional licenses to reach their assets and put pressure on them to pay. But to the extent we continue to use the courts to collect child support, it would be helpful to have lawyers to make sure the “can’t pays” have a fair chance to make their case to the court.
The Obama administration proposed and finally adopted regulations that improve the system in important ways, but only after Republican opposition delayed the final rule until a month before President Obama left office.14 Three provisions in particular are of major significance. Perhaps the most important requires that states take into account noncustodial parents’ actual ability to pay when setting child support obligations. This step takes on frontally the longtime practice in many states of using unrealistic non-individualized methods to set support levels, with devastating consequences for low-income noncustodial parents. A second requires states not to treat incarceration as “voluntary unemployment,” a euphemism if ever there was one. This will prevent the piling up of arrears while the father is in prison. There has been improvement on this—thirty-six states now allow inmates to ask for modification in their support orders and provide help to the inmate to understand how to do that.15 The new regulations make the policy mandatory. Finally, the regulations place into federal law the holding in Turner v. Rogers that judges presiding over non-custodial parents brought into court for nonpayment of support must determine the defendant’s ability to pay before sending him or her to jail.
The problems with the child support system itself are bad enough, but mass incarceration along with its effects on children is even more staggering. One in twenty-eight children has a parent in jail or prison, and one in nine African American children does.16 The damage that mass incarceration does to children and families goes far beyond the fact that Dad is unable to pay child support while he is in prison. And along with mass incarceration, there are enormous issues of unemployment, low-wage jobs, and racism. The deeper challenges are to attend to those problems. Some good people promote fatherhood as a behavioral goal, and there is value to that, but rather than criminalize indigent fathers’ poverty, we must dig all the way to the roots if we want to help families achieve what they want and deserve for their children.