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Debtors Prison for Deadbeat Dads

In the early 1800s, the United States abolished the practice of jailing people for unpaid debts, deeming the practice abhorrent and counterproductive. But six states (Arkansas, Arizona, Illinois, Indiana, Minnesota, and Washington) still effectively allow it under certain circumstances, with failure to pay child support the most noteworthy.

NPR’s Nina Totenberg reports (“Supreme Court Weighs Rights Of ‘Deadbeat’ Parents“):

Go to any shelter for homeless families, and you likely will find children who would not be there but for their fathers’ failure to pay child support.

Spend a day in family court, and you likely will see indigent fathers, with no lawyer, being taken away in handcuffs because they could not pay the child support they owed.

So-called deadbeat parents, usually dads, have long been a conundrum for the law. On Wednesday, they are the U.S. Supreme Court’s legal problem.

The justices are hearing a case testing whether indigent parents who fail to make child support payments may be jailed for as much as a year at a time, without the state providing a lawyer. Though most states provide counsel for those too poor to afford legal help, a minority of states do not, including Florida, Georgia, Maine, Ohio and South Carolina.

The case before the justices comes from South Carolina, where Michael Turner, an indigent father, was jailed for a year for failing to pay child support. He could have gotten out of jail earlier by paying the nearly $6,000 he owed, but with no money and no job, he could not make the payment. He served the full 12 months.

The jail sentence was neither the first nor the last that Turner served for failure to pay. Because the mother of his child received welfare for a period of time, she assigned her right to child support to the state. The case then became subject to automatic enforcement procedures, sending Turner to court whenever he was in arrears.

Because he was repeatedly behind in payments, he was repeatedly sent to jail. Indeed, he was in jail again as recently as January.

Since South Carolina is one of those states that does not provide a lawyer for indigent parents facing prison for nonpayment, Turner was on his own in court. The judge, without making a factual finding of Turner’s ability to pay, ordered the maximum sentence.

Turner, it should be pointed out, is not a model defendant. The mother of his child–to whom one gathers he was not married–claims he once bought illegal drugs with money that he owed in support payments.  And, Totenberg notes, making mothers lawyer up in order to enforce payments already ordered by courts would be absurd.

The issue before the Court is narrow:

The central legal issue in this case is whether and in what circumstances the state may deprive an individual of his liberty without providing him a lawyer.

The Supreme Court has long held that those facing criminal charges, including criminal contempt of court, are entitled to a lawyer. The Constitution provides that in all criminal prosecutions, the accused shall have the right to assistance of counsel.

But deadbeat parents are cited for civil, not criminal, contempt of court. So the question before the court Wednesday will be whether long jail terms for civil contempt amount to criminal punishment.

The narrow question strikes me as a no-brainer. The state simply shouldn’t be allowed to deprive a citizen of liberty without the benefit of counsel.

But broader questions must also be asked.

First, should judges have the power to unilaterally send people to jail? It’s an age-old practice but one that seems abhorrent on its face. Accused foreign terrorists, the Court has rightly held, are owed due process. Why should judges have this power?

Second, jailing people with no money for failing to pay debts–even if it’s technically for “contempt of court”–remains absurd. Deadbeat parents are indeed a major problem and one imagines a large portion of them are scum refusing to live up to their obligation to their children. But, especially in this economy, there are no small number of people who simply have no means of making support payments, awful as that is. Is jailing them–and thus ensuring not only that they’ll not earn money for the duration of their incarceration but also stigmatizing them and making it harder for them to find gainful employment upon release–really the best way to handle the situation?

 

 

 

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. PD Shaw says:

    Traditionally, civil contempt did not have “terms” of sentencing, the contemnor carries the keys of the prison in his own pocket. As soon as he complies with a court order, he is released. Thus, it’s not considered punishment. Sounds like South Carolina law might be different.

    (In Illinois, there is a right to counsel for indirect civil contempt if indigent)

    Like or Dislike: Thumb up 0 Thumb down 0

  2. In my experience, jailing people for civil contempt of court — which is essentially what this is since the father’s are being punished for failure to comply with a Court Order to pay child support — is usually the absolute last resort, especially in a case like this where the ultimate goal is to get the Defendant to meet his obligations to his child. Someone who is already employed is unlikely to have this happen to them because the usual practice would be for the Court to issue a Garnishment that requires the employer to deduct the child support obligation from the paycheck before it ever gets to the Defendant. Obviously, this kind of wage withholding is ideal for all parties (well, maybe not the Defendant but that’s beside the point)

    I agree that jailing someone who’s unemployed doesn’t entirely make sense because that makes it impossible for them to look for work. However, I’ve often seen this form of contempt used in cases where there’s evidence that assets are being hidden or the Defendant is being paid in cash under the table. The other thing to note, of course, is that someone who has suffered a significant change in their income does have the right to petition the court to have their child support obligation modified, although it would never be eliminated entirely.

    More often than not, these situations occur when the defendant is unrepresented and, quite honestly, getting an attorney involved in the matter on their behalf may actually help to resolve whatever dispute might be pending faster than sending the Defendant to jail would.

    I’ll be interested to see how the court decides this one because as far as I know, it’s an issue of first impression for them.

    Like or Dislike: Thumb up 5 Thumb down 2

  3. This kind of situation is sad the entire way that you look at it. But “deadbeat” parents are not the only ones ending up in jail because of debt anymore. I’ve heard of and seen stories where bill collectors that receive civil judgments against debtors have been able to get them ARRESTED until they can pay. I even wrote a post about it. Sounds like debtor’s prison to me.

    Like or Dislike: Thumb up 2 Thumb down 1

  4. PD Shaw says:

    Whether or not he had an attorney, he certainly would have had the opportunity to respond to the question of why he shouldn’t be held in contempt. If he can’t explain that “he can’t pay,” then there is a larger problem than what’s going on in the courtroom. He is probably unemployable; possibly mentally ill or at the very least suffering from severe drug addiction. Perhaps he should be sent to drug rehab or appointed a jobs counselor.

    (I may be wrong about Illinois requiring an attorney for indigents in civil contempt proceedings)

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  5. Sandy,

    This kind of situation is sad the entire way that you look at it. But “deadbeat” parents are not the only ones ending up in jail because of debt anymore. I’ve heard of and seen stories where bill collectors that receive civil judgments against debtors have been able to get them ARRESTED until they can pay.

    I’ve been practicing law since 1994, including many, many hours devoted to consumer collections in Virginia and the District Of Columbia. While I cannot say that I am familiar with the laws of every state in the Union, I say with a high degree of confidence that there is no jurisdiction in this country where someone can be thrown into jail for failure to pay a private debt.

    This is a typical threat used by non-attorney debt collectors, and it is a violation of Federal Law to even make this threat. For attorneys it would be both a violation of the law and a serious ethical violation that could threaten their license to practice law.

    Like or Dislike: Thumb up 1 Thumb down 2

  6. Fog says:

    Asset forfeiture, free speech zones, hate crimes, tasers, and now debtor’s prisons. And half the country thinks the ACLU is the enemy. Lovely.

    Like or Dislike: Thumb up 3 Thumb down 1

  7. PD Shaw says:

    It also should be noted that the deadbeat here was specifically given the option of work release, but never asked to take advantage of it. His attorneys say he wasn’t allowed because of his priors (criminal assault and battery and domestic violence), but the government says that would have just necessitated tailoring his work assignment.

    Kind of an odd case. Evidence of his ability to pay is based upon a record of selling drugs (and posting a bond for release when caught). His excuse for non-payment is that he uses his spare money to do drugs. Surely that can’t be an excuse. The case for and against him is based upon him being a criminal.

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  8. [...] had no idea that debtor’s prison still existed! It always struck me as counter-productive. A strategic pound of flesh, as it were, [...]

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  9. [...] had no idea that debtor’s prison still existed! It always struck me as counter-productive. A strategic pound of flesh, as it were, [...]

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  10. John425 says:

    I have a good friend in Seattle who ran afoul of the child-support system. In his case, he lost his job and ran out of savings. His ex-wife turned him over to WA State Child Support Enforcement. They make no differentiation between “can’t pay” and “won’t pay”. They brutalized him.

    The state also fields lawyers who “represent the child’s interest” in court. My friend borrowed $1000 from me just to get a lawyer to help him. This whole scenario played out over 4 months and the Support lien sat like a turd in a punchbowl in his credit files.

    Like or Dislike: Thumb up 4 Thumb down 1

  11. wr says:

    Doug — With no disrespect to your experience or your confidence, a quick glance at the Google shows that you are wrong. Here is the first of more than a few that pop up:

    http://www.startribune.com/local/95692619.html

    Like or Dislike: Thumb up 3 Thumb down 0

  12. wr,

    Did you read the article? I ask because the Star-Tribune headline blatantly misrepresents the facts of the case.

    after 16 hours in limbo, jail officials fingerprinted Uhlmeyer and explained her offense — missing a court hearing over an unpaid debt.

    That’s called contempt of court. This lady asn’t arrested because she didn’t pay his credit card, he was arrested because he ignored a civil summons to appear in court. There’s a big difference.

    Like or Dislike: Thumb up 1 Thumb down 1

  13. Andre Kenji says:

    In Brazil, failing to pay child suport is famously the easiest way of going to prison.

    Like or Dislike: Thumb up 1 Thumb down 0

  14. Steven Plunk says:

    In some states failure to pay (including inability to pay) can result in a commercial driver losing his drivers license and the ability to work. That’s some logic there.

    The entire issue of child support and divorce is something the state should not inject itself into. It’s a civil matter and should be handled as such. The government lawyers end up being blunt instruments in pursuit of some vague form of justice.

    Like or Dislike: Thumb up 4 Thumb down 0

  15. wr says:

    Doug — I read the entire article, did you?. Debt collection agencies are using courts and police forces to collect their debts, essentially turning our criminal justice system into debtors’ prisons.

    Like or Dislike: Thumb up 4 Thumb down 1

  16. PD Shaw says:

    WR, I read the entire article; it appears to me that they are all people not showing up to court. Some appear to not know they’ve been sued (despite receiving service of process), many don’t realize the consequence of ignoring a supoena, or believe that their debt is too small for such measures. Bad things happen when you don’t go to court.

    Like or Dislike: Thumb up 1 Thumb down 1

  17. wr,

    No, they are using the civil court system.

    The only criminal charges that exist in the law that are even tangentially related to failure to pay a debt are bad check charges. And, yea, writing someone a check that bounces is a crime since it’s considered a form of criminal fraud. In those cases, though, guilt must be proven beyond a reasonable doubt.

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  18. PD Shaw says:

    It also pains me to point out that almost 200 years ago, the Sheriff seized Abrahan Lincoln and took all of his non-exempt assets and sold them at auction. (He even lost his surveying tools) So using the justice system to collect debts is not new.

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  19. In this Mancession, with 80% of all layoff being men, it is not surprising that they are unable to pay their support. We are more in a depression then a recession with six men for every job, and five more years before a change around.

    The fact is that millions of middle income men are out of work, and being put out of their homes, as the women who are working do not believe in gender equity, or the need to have two parents in the home.

    In these economic condition, calling all child support obligors “Deadbeats Parents” is becoming akin to using the “N” word to reference African=Americans. They are the victims of an economy in a downward slide. Further, they are the victims of state who are withholding information about their rights by not distributing the free Federal Child Support Enforcement Handbook for Non-Custodial Parents.

    Like or Dislike: Thumb up 7 Thumb down 1

  20. There are a lot more things you can do other than locking up ‘broke’ dads for not paying child support. Cities and counties could embarass them by pshing their names and photos online, garnishing some of their wages, requiring community service, not allow them to renew their driver’s licenses, etc. Jailing them does nothing to collect the money they should be paying their children and saddles the taxpayer with the cost.

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  21. matt says:

    James : Not trying to be a pain but the following line really really grates on me..

    still it under certain circumstances

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  22. [...] Debtors Prison for Deadbeat Dads (outsidethebeltway.com) [...]

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