The United States Supreme Court has now heard oral arguments in the case of Turner v. Price. We should know its ruling in two or three months.
Turner v. Price of course is the case out of South Carolina that seeks a constitutional ruling that states must provide indigent parents counsel in cases in which they’re threatened with incarceration for failure to pay child support.
Thanks to one of our intrepid readers, here’s the amicus curiae brief of the American Civil Liberties Union and others in Turner. However tedious you may find reading legal briefs to be, I recommend that you read it. It compellingly makes the case that states must provide attorneys for the indigent child support debtors it seeks to jail.
According to various news articles about this case and others, notably the Randy Miller case in Georgia (whose representation is Sarah Geraghty of the Southern Center for Human Rights who also contributed to the ACLU’s brief) states raise two primary justifications for not providing an attorney to indigent child support debtors. Neither holds water.
The first is that states can’t afford to provide attorneys to indigent debtors. The short answer to that is that they can’t afford not to. In fact, out of 50 states, 44 already provide attorneys to indigent debtors in child support contempt hearings. If they can, why can’t the other six?
More to the point is the fact that incarceration costs the state far more than providing an attorney. As the ACLU brief points out, ten years ago it cost the State of Indiana about $62 per inmate per day to keep people behind bars. That’s risen to about $93 per day in 2011. Therefore, to house an inmate for 30 days would cost about $2,700; two months incarceration would cost $5,400.
Given that contempt hearings usually take about 20 minutes, states pay a small fraction of that to attorneys representing alleged contemnors.
The second claim is that, because these are civil contempt hearings, states don’t owe the same obligation to provide representation as they do in criminal cases. This claim makes even less sense than the first. Again, as the ACLU brief makes clear, jail is jail, irrespective of why the state puts a person there.
The U.S. Constitution conceives of liberty interests. Those are clearly infringed when a state puts someone behind bars. The fact that it does so in civil contempt cases as opposed to criminal cases is a classic example of “a distinction without a difference.”
Beyond that, the brief makes all the obvious points. Indigent litigants are very often undereducated. As such, they’re clearly unable to present the defense of inability to pay or to understand the various ways the state’s case can be attacked.
The brief cites data from the Office of Child Support Enforcement showing that 70% of child support debt is owed by parents having either no quarterly income or those earning under $10,000 per year. Only 4% of child support debt is owed by parents earning over $40,000 per year.
In short, the threat of jail is aimed overwhelmingly at the poor. And those poor are likely to be undereducated. Some 41% of indigent fathers owing child support haven’t graduated from high school. Many aren’t functionally literate. Needless to say, lack of even the most basic education makes representing oneself in court particularly difficult.
Attorneys make a difference in whether these people go to jail or not. One study cited by the brief found that, of 75 people in a Georgia jail for child support contempt, 100% were indigent and none had been represented by an attorney. According to the law, none of those should have been in jail.
One of those was the somewhat famous Frank Hatley, about whom I’ve written a couple of times. He was in prison for contempt for failure to pay for a child well known to be not his. He knew it, courts knew it, but because he was indigent and barely literate, Hatley failed to raise the issues of inability to pay or nonpaternity, so it was off to prison for him.
Perhaps even more outrageous is the case of Quenton Jackson and Marquita Johnson who were also in jail in Georgia. The father and mother of a six-year-old, they’re indigent and therefore unable to repay the state for welfare income they received. The state’s solution? Jail them both and place their child with relatives.
Of course, incarceration accomplishes nothing toward providing child support. Mostly, indigent parents just sit in jail until they’re released having paid no money because they have none. State taxpayers have paid to house them, but their children haven’t seen a dime. And all the time they’re behind bars, their debts just keep piling up an up.
As the ACLU says, jailing for nonpayment those who can’t pay “serves no coherent policy.” It costs the state money and collects none. Because the indigent can’t pay, incarceration serves no coercive effect. How could it? If you don’t have the money, sitting in a cell doesn’t make it somehow magically appear. And coercion – getting the comtemnor to obey the court’s order – is the whole point of the contempt process
Also, many jails don’t allow children as visitors, so the parent-child relationship is interrupted when the obligor is serving time.
The ACLU calls for a concrete, clear ruling from the Supreme Court that, when states seek to take away an indigent person’s liberty, whether in criminal court or civil, they must provide legal representation. That’s important not only in states like South Carolina and Georgia that don’t provide it, but those like Pennsylvania whose laws require it but often don’t.
In truth, those who can’t pay should never go to jail for failure to do so. That’s a rule of law that should apply in all cases of debt, whatever its source. Turner v. Price doesn’t quite get to that question, but it does the next best thing.
The Supreme Court should prohibit states from establishing modern-day debtors’ prisons.