Three Cases Challenge Constitutionality of Jailing for Inability to Pay Child Support

The issue of jailing parents for non-payment of child support when they are unable to pay seems to be gaining momentum in legal circles. 

Not long ago, I posted a piece on the South Carolina case of Turner v. Price that the United States Supreme Court has agreed to hear.  It presents exactly that issue.

More recently, the Michigan Supreme Court agreed to consider the same issue in the case of People of the State of Michigan vs. Scott Bennett Harris.  Specifically, the issue presented is whether a previous case that held that inability to pay child support is not a defense to a charge of non-payment is either a misreading of the statute or unconstitutional.

Now a case in Georgia raises the same issue.  It’s reported on here (Atlanta Journal Constitution, 12/15/10).

When Randy Miller lost his job at AT&T last year, he used money from odd jobs and his tax refunds to try and keep up with his child support payments. But eventually the money ran out. With only 39 cents in the bank, the destitute Marietta war veteran was jailed recently for failing to pay support for his 16-year-old daughter.

Miller’s lawyer is now seeking to get Miller released, saying that both the U.S. Supreme Court and the Georgia Supreme Court have ruled that judges cannot incarcerate someone if they are unable to pay their court-ordered financial obligations, such as fines or child support.

“Here is someone who for the vast majority of his adult life served his country in the military and kept up with his child support payments,” Sarah Geraghty, a lawyer with the Southern Center for Human Rights, said. “But then he fell upon hard times and fell behind in his payments, and the state’s response is to send him to jail.”

Nice.  But that’s not all; the Southern Center for Human Rights got the state to do a Freedom of Information Act search and found that, at any given time, some 500 parents are incarcerated for failing to pay child support. 

Of course not all of them are completely destitute the way Randy Miller is, but national statistics strongly suggest that many are.  The Office of Child Support Enforcement reports that 63% of those in arrears on child support report earning under $10,000 per year.

What’s the argument for jailing indigent parents?  Doug Slade, an attorney for Georgia’s Office of Child Support Services said this:

“A lot of times the focus is on the parent who goes to jail and too often it’s the children who go unnoticed,” Slade said. “Our job is to seek to take care of the best interests of the child. It seems people are often more concerned about the parent who has the ability to work but is not and consequently is not taking care of the child.”

Slade fails to grasp the obvious – that if a parent cannot pay, the child is not served by jailing him.  Jail doesn’t help him find a job.  It’s the same argument against taking his driver’s license or other vocational or professional licenses.  Doing so makes it harder for his child to receive his support.

There’s so much wrong with jailing for child support arrearage, it’s hard to know where to begin.  First there’s the concept of debtor’s prison that, for many decades we’ve proudly announced that we’re too civilized to have in this country.  Ha!  If Dickens were alive, he’d make mincemeat of Doug Slade and the posturing politicians who like to show how tough they are by abusing the poor.

Or what about the fact that it’s black letter law that inability to comply with a criminal law or civil obligation invariably excuses failure to comply?  Face it, the state can’t punish you if you truly cannot do what the law requires.  All except in the case of child support.  And isn’t it interesting that it’s child support that’s the exception?

Indeed, just a year or so ago, I posted a piece on the fact that the ACLU got a woman released from jail on constitutional grounds because she was indigent and unable to pay a fine.  Same concept, but with the right, sensible and above all constitutional result.  At the time I inquired why the same concept wasn’t applied to child support.  In fact, I emailed that question to the ACLU, but received no response.

And of course there’s the fact that jailing a person who truly cannot pay does no good.  It doesn’t help the child and it certainly doesn’t help the dad, so what’s the point?

I’ve asked myself that many times, and I keep coming to the same conclusion – that these punishments are really gratuitous.  When states punish fathers in ways that make it harder for them to pay the support they owe, they’re obviously not serving the child’s interests.  It looks more like bullying than anything else.

While parents should support their children, no parent should be made destitute by child support.  When jobs are lost or health crises prevent a parent from earning, child support should be modified downward to reflect the changed circumstances. 

The idea that, before a child can lose a single penny of support, a non-custodial parent must have no money at all and be living on the street is simple nonsense.  Adults shouldn’t lose their humanity just because they have children that circumstances conspire to prevent their supporting.

Laws and court practices should be changed.  Children of divorce should receive enough to support them, but non-custodial parents should be allowed to keep enough of what they earn to live some sort of reasonable life.

That we’re actually fighting to once again establish inability to pay as a defense to non-payment speaks volumes about how far we have to go before we adopt sane policies on child support.  That there are at least three cases in the works to do exactly that shows that we’ve begun the journey.

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