Crime and punishment three - revenge of the accountability gap | HBR talk 20

On Sunday January 7th, actress, singer and producer Connie Britton showed up at the Golden Globes award ceremony sporting a tee shirt claiming “Poverty is sexist.”
And well, it is… just not in the way she thinks it is. 

The 1910 Uniform Desertion and Non-Support Act, proposed by the National Conference of Commissioners on Uniform State Laws, and passed with modifications by 24 states, addressed abandonment of the family by the breadwinning parent. The meat of the unmodified version’s statement on child support was “...any parent who shall, without lawful excuse, desert or willfully neglect or refuse to provide for the support and maintenance of his or her child or children under the age of sixteen years in destitute or necessitous circumstances shall be guilty of a crime… “ The law imposed fine or imprisonment, possibly including hard labor, in the discretion of the court. While the law appears genderless, it mainly targeted men, who were at that time generally their families’ primary or sole means of support, and therefore the only ones likely to be considered guilty of refusing to provide.

This was due to women’s lower financial responsibility at that time, when even a working mother’s wages were not considered to be the supporting wage for an intact household. The child support system, in other words, is a factor of traditional gender stereotypes. 

The modern federal child support system started as a part of the welfare program and initially only involved families receiving government aid. Since then it has been tweaked multiple times by congress with the stated goal of reducing single mother households’ dependence on welfare by shifting that dependence to their children’s fathers. Under the current system, the custodial parent doesn’t receive any child support until the amount paid by the noncustodial parent surpasses the amount the state is paying the child’s custodial parent in cash assistance and food stamps for the child’s benefit. This arrangement, touted as a government means of seeing that fathers, rather than taxpayers, provide for their children, is a farce. Nearly half of U.S. child support is owed not to the child or the child’s custodial parent, but to the government, indicating that collecting from fathers is not eliminating mothers’ eligibility for and collection of public assistance… and the cost of collection too often offsets any benefit of recovery.  

Available census data shows that on average, over 80% of custodial single parents are mothers. Fathers, having to meet higher standards to obtain custody as single parents, are more likely to be financially solvent on their own and to maintain stable economic conditions through their own resources. Single custodial mothers, on the other hand, are more likely to be poor, economically unstable, eligible for assistance, and the beneficiaries of child support obligations. Even when fathers are awarded child support it is less on average than that awarded to mothers. So, children are more often placed with the less financially solvent and stable parent, and then the state imposes a debt on the more financially responsible parent, thereby immediately reducing his financial solvency by tying up a significant chunk of his income, which the state seizes through wage garnishment and attachment of any assets he may have. 

Attachment of criminal liability to child support obligation intersects with gynocentric attitudes as well as custody and support law to crush noncustodial fathers. Numerous issues emerge from this one area as explained in Elizabeth G. Patterson's report, “Civil contempt and the indigent child support obligor: The silent return of debtor’s prison.”

In her report’s introduction, Patterson states that “many incarcerated child support obligors are indigent, with irregular employment, limited earning potential, no real assets, and questionable ability to pay.” She attributes abuse by the system to “a variety of systemic and judicial flaws” and calls for “restoration of equity and due process to this area.”

Among the flaws to which Patterson refers is the increasing tendency among family court judges to routinely impose jail time for contempt of court order when an obligor is in arrears, including in cases involving low-income obligors whose nonpayment may be due to inability to pay. This is compounded by judicial abuse civil contempt, which is often inappropriate in child support arrears situations, as the designation is for wilful refusal to follow a court order, not inability. The defendant in a civil contempt case does not have the rights that are guaranteed to criminal defendants, including the presumption of innocence and the right to a jury trial. In many states, even the right to legal counsel is absent. This is a crucial issue that worsens the other contributing factors by ensuring that an obligor accused of willful nonpayment will have no more ability to defend himself against that accusation than he can afford… after a significant chunk of his income has been confiscated by the state. 

Among the systemic flaws contributing to this is the automation of the child support system. Patterson notes that judicial hearings as the primary means of establishing and enforcing child support have been replaced by “expedited administrative proceedings and mass processing of enforcement activities” combined with automatic triggering of enforcement actions such as license revocation and reporting to credit agencies if the obligor gets behind in his payments. This, she asserts, has turned the federal child support enforcement agency into a “super-collection agency.”

And what are they trying to collect? Child support obligations imposed on low-income and indigent noncustodial parents are often entirely inconsistent with the obligor’s ability to pay. Patterson noted four main areas affecting this. 

One was incomplete or inconsistent information: When they are able to appear at a hearing, low-income obligors’ barriers to employment, such as health conditions, criminal records, or lack of education, can result in spotty job histories that make an income level hard to establish. 

Imputed income, a judge’s estimate of what the obligor supposedly SHOULD be making, is used when a noncustodial parent cannot show up for a hearing, or a judge decides he is not earning as much as he could be, or doesn’t believe his earnings disclosure is complete. This frequently results in overestimation of income in cases of low-income obligors, especially those facing the aforementioned barriers to employment. 

Minimum Awards, which can impose debts on individuals who lack the ability to earn the income required to pay them, are another area. If the noncustodial parent is homeless and jobless, even an award which requires a monthly payment of what a full-time minimum wage worker could earn in a couple of days would put the obligor in arrears. To a person with nothing, even such a small monthly payment might as well be astronomical. 

Retroactive awards, which calculate arrearage beginning at some point prior to the entry of the child support order, usually go back to the date of a separation or divorce, or in unwed cases, the child’s birth. One example of this is the case of statutory rape victim Nick Olivas, whose 20 year old rapist did not tell him she made him a father at 15. He found out when the state served him with papers demanding $15,000 in child support for his then 6-year-old daughter, along with medical bills going back to her birth, plus 10 percent interest, then seized money from his bank account and began garnishing his wages, all without a hearing.

Patterson also notes that changes in the norm for the average career have led to a disparity between the court’s expectations and the obligor’s earnings over time. Traditional expectations involve the obligor maintaining a long career with the same employer and a consistent, stable expectation of raises and benefits increases over time. When an obligor’s career does not match this pattern, but has interruptions due to the type of work he does, employment ending outside of his control, or layoffs due to economic instability, an obligation based on traditional expectations will impose a debt with which he cannot hope to keep up. 

When an obligor’s ability to pay does not meet agency or court expectations, his recourse is limited, if he has the means and understanding to file the correct motion, obtain legal counsel, and navigate the system. As Patterson notes in her report, “limitations on the circumstances in which modification is available, judicial and administrative hostility to downward modification, and barriers affecting access to modification procedures limit the utility of modification as a source of relief for the low-income obligor subject to an excessive support award.” 

One such barrier is state-dictated thresholds requiring a change in monthly income before changes to an order can be considered. Decreases in already low incomes may not be sufficient to meet those thresholds. Another is some states’ requirement that a change be involuntary in order to allow changes to be considered, while courts may consider employment inconsistencies and even imprisonment voluntary in order to deny the obligor that consideration. 

Also cited is both agencies’ and courts’ hostility toward “downward modifications” of child support obligation, wherein even when policy does not so dictate, administrators and judges exhibit disinclination to reduce child support obligation, regardless of the obligor’s circumstances. If the obligor makes it past all of those barriers, federal law prohibits retroactive modification of accrued child support, so obligors like Nick Olivas would still be out of luck in regards to their arrears. 

And here is where criminal justice outcomes enter the picture. Despite the system defining contempt in child support cases as the civil variety on the basis that it involves noncompliance with a court order, penalties applied may include jail time. 

In her report, Patterson summed it up thus: “A system in which child support awards are commonly set beyond the parent’s ability to pay, modification procedures are neither realistically available nor likely to address inequities, and retroactive correction is disallowed, inevitably results in the accrual by many parents of large and unpayable arrearages. Eventually, many of these parents face charges of contempt of court for their failure to pay the court-ordered support. Faithful adherence to the laws limiting the contempt power would bar its application in these circumstances. A nonpaying obligor is in contempt of court only if his or her noncompliance was willful—that is, the obligor had both knowledge of the order and the ability to comply.” She later continues, “The inability of indigent obligors to make court-ordered payments or to pay purge amounts would not be a systemic legal problem if courts were not finding such obligors in contempt and then coercively imprisoning them despite their inability to pay,” and “According to the federal Office of Child Support Enforcement, in 2006 over 105 billion dollars in arrearages were owed by 11.1 million obligors. The majority of the obligors with arrearages, and thus subject to repeated contempt proceedings, are below the poverty line.” Her report showed that only 4%, in fact, qualified as even being middle class or higher.

All of this combined puts impoverished child support obligors, mostly fathers, in a self-perpetuating cycle of incurrence of arrearages, penalization, reduced employability, and lack of recourse to have income changes addressed. This spirals, in far too many cases, into inevitable incarceration under civil contempt as agencies and courts hold them accountable not for the welfare of their children, but that of the state, and for numerous factors that are beyond their control. 

While the state does not consider this a criminal justice outcome, it is, in effect, criminalizing poverty. It applies almost exclusively to poverty in men, who are the majority of noncustodial parents, the majority of support obligors, and who face greater debt when support is assessed, and oh, by the way, the majority of the homeless, many because their income is eaten by support obligations... and the overwhelming majority of homeless who are unsheltered, because shelters prioritize women with children, then women without children, before men. 

Yes, Connie Britton… poverty IS sexist, especially where divorced or unwed parenthood is concerned. The American legal system has made it misandric. Isn’t it about time for major, systemic reform?