Debtors' Prisons Are Alive and Well in America
The concept of a debtors’ prison is usually deemed a thing of the past, something out of a Dickens novel. But just this past June and July, New Jersey counties conducted one of their twice-annual raids to arrest people who are behind in child support payments. After the raids several New Jersey county sheriffs’ offices issued press releases proudly announcing the number of deadbeat parents they’d locked up.
New Jersey is not alone. Weeks ago Lebanon, Pennsylvania issued bench warrants for people who were behind on child support, in addition to publishing these debtors’ names. The trend is abundantly clear to those in the criminal justice community: incarceration is increasingly routine to child support enforcement practice -- even though many who owe child support are indigent. And as August brings with it National Child Support Awareness Month -- an obscure designation established in the mid-nineties by the Clinton Administration and linked child support enforcement to Clinton’s welfare reform legislation -- it is clear that federal policies toward the poor encourage toughness in collecting on child support arrears, often resulting in local incarceration of child support debtors. States and counties maintain the authority to lock people up for their child support debts -- revealing one of the many ways in which poverty is criminalized in America.
New Jersey county sheriffs are mandated to conduct the arrest raids as part of the state funding they receive, and they stand behind the policy. “I believe that it is important to have the ability to arrest violators and bring them before the court when they do not pay support,” Sheriff Jean Stanfield of Burlington County, New Jersey told AlterNet in an email. “Without the threat of incarceration, far fewer custodial parents would be receiving the child support owed to them.”
The arrests in Burlington County took place June 18, 19 and 20, and a total of 48 were arrested. According to documents provided by Sheriff Stanfield on July 25, four of the child support obligors remain in prison; five were jailed for more than two weeks; and several were jailed for one-four nights. All but four have ostensibly male names. Sheriff Stanfield’s press release did indicate that nearly $1 million in child support arrears were owed, the county has not yet shared with AlterNet how much money was collected from the raids.
The arrest raids generate small sums of money in connection to how much is actually owed. In Mercer County, New Jersey, the recent raid resulted in $41,000 in unpaid child support payments. Mercer County also led the state with 84 arrests. Yet $41,000 from a county that led the state in arrests is miniscule -- over $2 million is owed in child support arrears in Mercer County.
So arrests and incarceration for child support arrears persists even though they may not be effective in yielding payment or in the best interest of the state. In its 2010 report, “In for a Penny,” the ACLU found that “incarcerating indigent defendants unable to pay their LFOs (legal financial obligations) often ends up costing much more than states and counties can ever hope to recover. In one two-week period...16 men in New Orleans were sentenced to serve jail time when they could not pay their LFOs. If they served their complete sentences, their incarceration would cost the City of New Orleans over $1,000 more than their total unpaid legal debts. In Washington, one man was jailed for two weeks for missing $60 in LFO payments. In Ohio, a woman was held in jail for over a month for unpaid legal debt of $250.”
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 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 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.”
In theory, debtors prisons were outlawed at the federal level in 1833, pre-industrial America. Yet states’ tendency to imprison debtors as well as garnish public benefits reveals the continuing freedom local governments have to punish the poor to collect a small sum -- as well as the deeply troubling implications this can have for people of color. As the eighteenth annual Child Support Awareness Month is upon us, new frameworks for aiding “deadbeat” parents need to be considered in lieu of modern-day debtors’ prisons.