It seems some readers thought I got thrown in jail for being behind on child support. While this didn’t happen, it was a real risk, but not because of a contempt charge (I’ll explain further down). Until very recently, it was common practice for men with child support arrears to be thrown in jail on the basis of “contempt of court.” The idea behind contempt is that people who are ordered by the court to do something must do it, or risk being jailed or fined. For example, if you get a subpoena, you have to turn over information, or you could be held in contempt. Sometimes, journalists are jailed for refusing to disclose their sources. Another example of contempt is refusal to pay a fine.
Civil contempt of court happens to be the only way, short of martial law, that people can be jailed without the right to representation.
However, judges are not supposed to jail people for contempt when they don’t have the means to carry out the order. Say you ask a person to turn over some information, and he honestly doesn’t have it. He can’t (properly) be jailed in that case. Or say that someone is ordered to pay restitution, but he doesn’t have any money. In this case, he shouldn’t be jailed, because he cannot follow the order even if he wants to.
Jailing men on contempt came to be standard in the 1980s, particularly after the Bradley Amendment of 1986, which imposed extremely heavy burdens on noncustodial parents. As with most “get tough on social problems” type of legislation, the targets were clearly men, particularly the stereotypical ones you see on shows like Jerry Springer. I can recall a great deal of anger about “welfare queens” and such back then. The story was that some people – ghetto residents in particular – were irresponsibly having lots of children and leaving the rest of us to foot the bill. As usual, the politicians came up with a clever plan that would both protect their welfare recipient constituents and assuage the anger of the middle class. The idea was to not solve the problem, but to find someone to beat down so as to demonstrate their toughness, and grab some cash in the meanwhile.
The result was the Bradley amendment, which effectively resurrected slavery and debtors’ prison in the United States. A number of states immediately interpreted this as a way to seize as much income as possible from noncustodial parents – disproportionately working class and black men to begin with – and turn it over to states and counties for welfare expenditure. Now, one thing you have to keep in mind when considering the idea that noncustodial parents are paying back welfare spent on the mothers is that, despite the window dressing, these state funds are fungible. There isn’t necessarily a certain channel that goes directly to welfare, another for lawyers and judges, prisons, etc. There’s a pool you draw from, which means that all sources of income are essentially the same. Say you have a shortfall in funds due to some unforeseen problem, such as a sudden need to build another wastewater treatment plant. Ultimately, it doesn’t really matter whether the funds come from state income tax, licensing fees, or noncustodial fathers. If all else fails, one thing you can do is start shaking down the dudes to come up with enough to pay for everything.
Here’s an excerpt from a 1992 article from the Philadelphia Inquirer:
Pennsylvanians who have fallen behind in their child-support payments will have any lottery winnings greater than $2,500 seized by the state under a new law that went into effect Monday.
The lottery-intercept program, which has the Departments of Public Welfare and Revenue working in tandem, represents the Casey administration’s latest effort to ensure that parents provide financial support for their children.
It also represents an extra push to pare down state welfare costs, which now hover around $3 billion.
“Other states have done similar programs and have collected quite a lot of money,” said Welfare Department spokesman Mark McGaffin yesterday. “We hope to collect quite a few dollars on this.”
Last fiscal year, Pennsylvania collected $766 million through child-support enforcement programs, the largest net of any state, according to state welfare officials. Of that, nearly $123 million constituted a repayment of tax dollars used to support families needing public assistance.
Under the law, parents owing support are required to relinquish their lottery prize money to make delinquent payments. The state has long garnished the wages and unemployment benefits of delinquent parents.
The Revenue Department, which runs the state lottery, will cross-check winners of more than $2,500 with a list of parents who owe child support. The list is compiled by the Welfare Department. Revenue will then forward the amount owed to Welfare to fulfill the payments.
About 400,000 parents are on the delinquency list, McGaffin said. The children of about half those parents are living on welfare.
McGaffin said it would be too difficult to track winners of less than $2,500 because lottery-ticket vendors are responsible for paying prizes below that amount. He said the list of delinquent parents would be updated daily.
Attorneys with Community Legal Services of Philadelphia, in contrast to its recent battles with the administration over welfare reform, had good words for the enforcement initiative.
This article makes the intentions of the 1980s child support laws perfectly clear. The idea was to increase state revenue by allowing state seizure of funds without traditional safeguards. This is why politicians loved it so much. Not only could they arbitrarily grab cash from men; they could sell it as a good deed! Hell, even the welfare attorneys loved it. They’re getting paid from state funds too, after all. Note that in ’92, Pennsylvania kept over 15% of what it collected, and likely spent most of its enforcement effort on obtaining that 123 million dollars (even if you pay without a hitch month after month, year after year, the state counts that as “collection”).
However, not all funds are so easily taken as state lottery winnings. Sometimes, men keep cash, assets, private accounts and so on, and sometimes their loved ones have money. In this case, you’ve got to really twist their arms, and nothing does that better than threatening to throw them in county lockup. Even if they don’t have the funds, they’ll do whatever they can to get them when threatened with jail, including borrowing from family, not paying rent or bills, pawning goods, and sometimes stealing or even conning people.
It isn’t commonly mentioned in public, but state enforcement typically has an open bias toward collecting the funds that states can access. If a woman works or has remarried, and is not receiving any state aid, her kids’ father tends to be a lower priority for enforcement. Usually, the father whose kids are on welfare gets the third degree. This is, more often than not, the guy who is jailed. This is because his child support, as opposed to your non-welfare case, goes directly into state funds, which provides the state with extra motivation. If the mother is not collecting welfare, the state simply hands the money over to her and collects some amount of matching federal dollars that probably barely offsets the cost of enforcement in average cases (but pays off decently with high-dollar awards).
And this leads to the lowest priority collection of all: the non-custodial mother on welfare. An attorney friend of mine was trying to get a judge to sanction a woman who refused to pay her ex a single dime, was tens of thousands in arrears, and apparently getting high on a regular basis. The judge would not do anything. He wouldn’t lift a finger in the case. The reason for this is simple: enforcement would be unlikely to collect any more than a pittance, and this wouldn’t even offset state costs because the father was employed. On the contrary, it might simply cost more, so why bother? As far as the judge was concerned, he wasn’t going to do anything that wouldn’t help pay his salary.
By now, it’s pretty clear there are incentives on the table for child support enforcement officers, judges, attorneys, and others in the state system. The first is collection of state funds from men whose children are receiving state aid, and the second is collection of federal matching funds for every dollar collected. The former leads to courthouse shakedowns of poor men, and the latter to setting unreasonably high awards.
If you’re curious about the process in real life, the following exchange, which I came across on the Straight Dope message board some time ago, struck me as illuminating:
I used to lock up deadbeats at pretty much every court date back when I did child support enforcement for the state. I worked a circuit of multiple counties, often before the same judge. All child support cases in a particular county would be set on the same day, usually a motion day. I’d fill the courtroom with defendants. Judge would let me pick any of my cases to go first, and I’d always pick the worst deadbeat of the lot. We’d have a short trial, he’d be found to be in willful, deliberate, and contumacious contempt, and the bailiff would shackle the guy on the spot and lead him away. The judge would then announce that he’d be leaving the bench to deal with other matters, and encourage the remaining defendants to see if maybe they could work something out with Mr. Oakminster, otherwise he’d be back to hear the next case in a few minutes.
Heh. Talk about shaking the money tree. Had guys falling over themselves to pay up. Especially in the summer time. It’s mighty hot in the deep South, and some rural jails are not air conditioned…..
And the response from another attorney:
I love this! I’ll pass that along to the county solicitors here; they’d get a chuckle out of it. In the Family Division Courthouse here, we have support contempts pretty much every Friday, and there’s never more than a handful of cases at once, so you lose that “deterrent” effect. But what we do have is the holding cell clear at the other end of the building, so the defendants have to be paraded all the way across the floor in their orange jumpsuits and ankle and wrist shackles, past all the other support defendants who happen to be there awaiting their establishment/modification hearings. The message: “This could be you”.
So there you have it: a couple attorneys openly admitting that the entire operation is a setup and a shakedown, in which state counsel beats up on poor men who can’t afford a lawyer. It’s really a travesty of justice, and makes a mockery of the concept of liberty.
Finally, a couple years after Oakminster made that post, someone else (not me) found it and took him to task for his attitude, asking him how he could face himself after treating unfortunate men in that manner. His response, in which he admits that helping custodial parents and children is an afterthought at most, puts it all in perspective:
Absolutely incredible you can look in the mirror each day.
It was my first law job. I was good at it. Saved/recovered taxpayer dollars by enforcing court ordered support obligations, establishing paternity, and in some small way making life better for children and custodial parents in the process. I don’t have any regrets about those cases.
What the lovely Oakminster describes above is pretty much how things were for a couple decades, but a recent Supreme Court decision – Turner v. Rogers – called this state of affairs into question. A man named Michael Turner, who had been in and out of jail on child support contempt cases for much of the last decade, argued that if he was going to be jailed, he should have the right to counsel. Ultimately, the court found that because it was a civil rather than criminal contempt case, Turner did not have the right to counsel, but to ensure that his 14th amendment rights weren’t violated states should adopt guidelines that prevent incarceration of men who do not have the ability to pay.
While I first thought it was a bit of a cop-out on the part of SCOTUS (I would have preferred right to counsel), over time it has become apparent that this finding did in fact make some significant changes. The practice of summarily jailing parents in arrears appears to be in steep decline, with the Obama administration openly calling into question whether it is appropriate to jail fathers who cannot afford to pay child support. Finally, it looks like some sanity has begun to return to the discussion.
However, this doesn’t mean that noncustodial parents are out of the woods yet. Not even close. Awards remain excessive, extortion by mothers using claims of physical and/or sexual abuse and other forms of slander/perjury is still a common tactic in the courtroom, and coercion is still the rule. Although contempt jailings are in decline, you can still easily end up in jail due to a license suspension. This is what had me worried last month. While I was (probably) not at risk for a civil contempt charge, I was facing license suspension due to being in arrears and missing a couple recent payments, partly because of a foulup in the online payment system I’m accustomed to using. If my license had been suspended and I didn’t realize it at the time, I could have been pulled over, and I would have gone directly to jail. Not for child support, mind you, but for driving with a suspended license. This would have been a serious headache, and it does happen to a lot of guys who aren’t paying close attention, or who missed notification due to a move or some administrative mistake (e.g. website malfunction like Obamacare).
So while the child support enforcement system is evolving, it still has a long ways to go toward becoming fair and humane. The main impediment at the moment remains the Bradley amendment, which is an atrocious piece of legislation that creates a form of federally-sanctioned piracy on the part of state child support enforcement agencies. If there is any reason for optimism, it is that both political parties are undergoing a fundamental shift, and the formerly critical feminist component of the Democratic party is losing ground to a mainly non-white coalition that is disproportionately harmed by predatory enforcement practices (e.g. a black or Hispanic woman whose partner is shackled with permanent debt to the state because of a previous child), and will probably be happy to see them go. Republicans, for their part, are generally the party of married, private sector workers, so they don’t have as much of a stake in child support policy, and I doubt they’d put up a fight if Democrats had a change of heart on the issue.