Debtors' Prisons Are Alive and Well in America

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Still, the issue of child support enforcement is a complicated one that can divide progressives, as is clear that enforcement is critical for single mothers. Mothers make up five out of six custodial parents. Some 42 percent of all custodial parents live at or below the poverty level. In 2009, only 42 percent of custodial mothers received all of the child support owed to them and nearly 30 percent did not receive any child support payments at all. The budget for child support enforcement has actually dropped since the Bush administration’s Deficit Reduction Act, something women’s groups have opposed.

But is the solution to lock up poor debtors, collect a small sum from them, and then brag about it? Barbara Ehrenreich pointed out last year in TomDispatch last year that about half of child support debt is owed to state governments as reimbursement for welfare payments that have already been paid to children, and that public sector entities regard collecting debt from poor fathers as a source of revenue for the state. And the photograph published by NJ.com in its story about the New Jersey child support debtors’ raid is revealing: a young black man, maybe in his 20s, being taken out of what appears to be a residence and arrested by two white police officers. The ACLU has found that jail time for legal financial obligations disproportionately impact people of color.

Incarceration is publicly threatening and can help a state look strong in its enforcement practices. Johnson Tyler, an attorney with South Brooklyn Legal Services, has been representing impoverished child support debtors for years. Tyler calls the systemic policies to arrest child support debtors in New Jersey, Pennsylvania and other states “another form of humiliation and intimidation. It’s a splash in papers,” Tyler said. “People are basically rotating in and out of jail. Maybe it makes a political splash, but it makes no no economic sense.”

Incarceration of child support debtors is part of a broader set of policies that, in the words of Ehrenreich, “ rob the poor.” Tyler has seen many coercive means of obtaining payment. Most of his clients are on some type of public benefits such as social security -- and payments are often seized in order to cover outstanding child support debt. “I see over and over that people lose their jobs, eventually qualify for social security, and their meager funds are then seized by the state to cover a child support order,” Tyler said.

This seizing of funds is also found at the federal level: a Department of Treasury rule still allows banks to seize all social security and disability benefits of child support debtors even though it typically protects up to two months of payments of these public benefits for other types of debt.

Jail time for debtors persists, even though there are supposed to be protections in place for those who are too poor to pay. In 1983, the Supreme Court held in Bearden v. Georgia that courts must inquire into a defendant’s reasons for failing to pay a fine or restitution before sentencing him to serve time in prison, as jailing a person merely because of his poverty would be fundamentally unfair.

Legal scholar Elizabeth Patterson wrote that even though a “finding of ability to pay the ordered support is a necessary precedent to both a finding of contempt and the penalty of a coercive incarceration. Otherwise, the incarceration can only be characterized as a punishment for being poor. Yet many child support obligors are indigent, with irregular employment, limited earning potential, no real assets, and questionable ability to pay.”