The United States Department of Justice of ‘The Department’ has recently released a detailed letter outlining the injustices that have been applied towards the economically less fortunate citizens of the United States.  According to Vanita Gupta, and Lisa Foster of the Civil Rights Division, and the Office for Access to Justice, respectively, the letter is intended to address some of the most common practices that have run afoul of the United States Constitution.  Unsurprising to some child support reform advocates, many of the constitutional violations are directly related to the punishments related to owing child support debt.  These outlined desecrations are ones that have been objected to by those fighting for reform and equal protections for those entangled in child support cases across the nation.  Recent years have seen increased attention to illegal enforcement of fines and fees in certain jurisdictions around the country, (Gupta and Foster 2016).

One could argue, quite effectively, that these violations have been common practice for a lot longer than ‘recent years’ and that child support enforcement punishments are not only illegal but unconstitutional.  The people in charge have chosen to ignore these violations successfully at least until now.   Even though this report has been released and contains clear and concise opposition of many of the practices executed against low-income debtors, the unconstitutional activities continues across the nation.  The Letter identifies seven specific items, which are described by Gupta and Foster (2016), as a set of basic constitutional principles relevant to the enforcement of fines and fees.  However, there should be specific attention paid to those principles which address violations within the carrying out of child support enforcement.

To begin, the Department of Justice (DOJ) addresses the incarceration of people when they are indigent and cannot afford the overstated fines and monetary penalties.  Based on writings in the letter, courts must not incarcerate a person for nonpayment of fees and fees without conducting an indingency determination, (Grupta & Fisher, 2016).  There have been hundreds, if not thousands, of cases involving people being incarcerated due to owing a child support debt even though it had not been proven that he or she has ‘willfully’ failed to pay the debt.   There is certain protocol that must be followed before arrest warrants are issued.  Unfortunately, when child support ‘deadbeat’ roundups are executed upon parents (some non-parents), there is seldom any mention of the financial status of the arrested party or if there was an indigency hearing conducted prior to sentencing.  

For example, since the letter was published by the DOJ on March 14, 2016, there have been at least ten child support arrests (and counting) made across the nation.  This letter will undoubtedly increase as states continue to pursue alleged child support debtors.  Four days after the DOJ letter was published, Coffee County Alabama made its annual child support arrest raid upon parents who may or may not have financially capable of fulfilling their child support obligation and the arrears.  According to Valencia Jones of the DothanFirst.com (2016) they (Coffee County and State authorities) issued 70 warrants before knocking on doors and making several arrests.  There are processes in place that seem to be omitted from these raids.  For instance, Scott Byrd of the Coffee County Sheriff’s office spoke about the unexpectedness of the round ups stating that “these people don’t know we’re coming”, (Jones, 2016).  This statement directly contradicts principles discussed by the DOJ and the due process statutes that must be followed in order for such warrants and arrests to be legal and constitutional.

In the Bearden v. Georgia decision of 1983, it was decided that the due process and equal protection principles under the Fourteenth Amendment prohibit “punishing a person for his poverty.” (Grupta & Foster, 2016).    As has been proven in many child support cases that have ended in arrests, most people detained are not criminals.  They are just poor.  More proof is provided when comparing the low amount of child support that is actually collected as a result of the child support raids to the amount due.  The circuit collects about five million dollars in child support each year, (Jones, 2016).  However, a mere $30,000 may be the bounty collected after child support busts and this is only an average.  This amount can decrease based on how poor the arrestee is and how he or she is able to produce the money needed in order to purchase their freedom.

To further expose the illegalities surrounding child support arrests it must be discussed that the   many people who are arrested are held until the child support debt has been paid in full.  These prisoners are not granted indigency hearings but are instead held in jail because they are poor.  For example, as recently as December 2015, Georgia conducted a raid dubbed ‘Operation Deadbeat Parents’, which resulted in 10 arrests.  According to Nathalie Pozo of Fox 5 (2015), the parents arrested must pay a “purge amount” in order to get out of jail.  For those unfamiliar with how purge amounts work in obtaining freedom from incarceration, the law definition is basic. 

The purge amount is an amount of money that must be paid toward child support arrears in order to avoid going to jail for contempt of support order, (USLegal.com).  The definition does not include any explanations of the need for indigency hearings or that the court must prove that a person has “willfully” failed to pay support.  This too, by definition, is a basic component of the child support guidelines which, if violated, can mean a lengthy prison sentence in most states.  Releasing parents only after a purge amount has been paid without an indigency hearing contradicts the DOJ letter because to do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine, (Grupta & Foster, 2016). 

In order to provide further evidence of the unconstitutional actions of government officials who are charged with operating the child support system, one must look at the state of Georgia.  There is one action (among many) that cannot be ignored in reference to the ‘deadbeat’ arrests made in 2015.  Deputies said that money goes directly to the child or children, (Pozo, 2015).  This can be quickly disproven simply by identifying the child support pass-through laws of the state and following the money.  According to Michelle Vinson and Vicki Turetsky of the Center for Law and Social Policy or CLASP (2009), Georgia passes-through and disregards some or all support for purposes of fill-the-gap budgeting.  There has apparently been no cause to utilize fill-the-gap budgeting during the past five years since zero dollars have been passed-through to the most vulnerable Peach State families who have received public benefits.  Not only are non-custodial parents being robbed of their freedom and extorted without due process protections, custodial parents are being robbed of the payments made supposedly for the children.  The only beneficiary of the child support system is the government when low and no-incomes are the reasons someone may become delinquent on child support payments.

One of the next principles outlined in the letter from the DOJ describes violations when arrest warrants and license suspensions are used in order to collect child support payments.  According to the Grupta & Foster, (2016), courts must not use arrest warrants or license suspensions as a means of coercing the payment of court debt when individuals have not been afforded constitutionally adequate procedural protections.  Since license suspensions are often applied as punishment for people who are delinquent on child support payments, it is critical that those affected are granted their constitutional rights and protections during the process.  While there are thousands of examples of due process violations during child support arrests based on the failure of judges to conduct indigency hearings before, during, and after ‘deadbeat’ roundups are conducted, it is important to explore the violations related to driver’s license suspensions.  Section 466(a)(16) of the Social Security Act (42 U.S.C. § 666(a)(16)) mandates that states have in effect laws that require the state to have “procedures under which the state has (and uses in appropriate cases) authority to withhold or suspend, or restrict the use of drivers’ licenses, (Carmen Solomon-Fears, 2011).  And, of course, all states follow the law by having strict criteria in place to trigger a drivers’ (and other) license suspension. 

The criteria outlined in the law clarify the need for a certain amount of arrears to be owed as well as a specific length of time the debt has been outstanding before a license can be suspended.  In West Virginia, Alabama, and Washington State, a person must be at least six months behind on payments before his/her license is suspended.  Other states such as Texas and Virginia shorten the length of time a person has before their license is suspended by three months.  Even more unbelievable is that the state of California will initiate suspension procedures after only 30 days of delinquency.  Remarkably, some states reduce the time even more when suspending licenses.   The National Conference of State Legislators or NCSL (2014) shared that in Florida, a driver’s license or vehicle registration will be suspended when obligor is 15 days’ delinquent in making a payment.  Due to the time restrictions very specific issues arise in reference to due process requirements.  Grupta and Fisher (2016) report in the DOJ letter that if a defendant’s driver’s license is suspended because of failure to pay a fine, such a suspension may be unlawful if the defendant is deprived of his due process right to establish inability to pay.

Based on the number of child support and other civil cases which may result in license suspensions, the likelihood that a person has been given proper notification and granted a hearing in order to determine his or her financial status is unlikely.  Only a handful of states address, all-be-it vaguely, the right to a hearing in order to for a judge to determine if a person can afford the payments prior to having a license suspended.  The statute in Vermont states that the obligor has 21 days after notification to either contest the claimed delinquency or request an opportunity to present evidence relating to the noncompliance, (NCSL, 2014).  The remainder of the nation, with the exception of Washington, D.C., fail to include any rights to indigency hearings as a way of determining the financial status of a citizen prior to the license suspension.  DC,gov, the official government website for the district, states that cases with arrears are submitted to the Department of Motor Vehicles (DMV) when no payments has been received within 60 days.

The DOJ letter cites research which has found that having a driver’s license can be crucial to individuals’ ability to maintain a job, pursue educational opportunities, and care for families (Grupts & Fisher, 2016).  And yet, there has been no mention of removing license suspensions as a means to punish parents who are delinquent a child support payments and/or owe arrears.  As of May 12, 2016, Google searches have recovered a limited number of states recognizing and implementing due process requirements before suspending licenses as punishment for owing child support debt.  Florida outlines the notification procedures and suspension process but only for non-IV-D (non-TANF) cases.  On the other hand, Utah is very specific in the license suspension process and does not specify if the suspension criteria are based on any particular status.

According to the Utah Department of Administrative Services (2016), once the obligor has been personally served, s(he) has thirty days to respond to the Notice of Agency Action (NAA) and request an informal adjudicative hearing with the Office of Recover/Child Support Services (ORS/CSS).  The office does not, however, address any procedures that have been adopted in order to determine a person’s financial ability to pay child support and arrears.  The state only addressed the possibility of a repayment plan in order to have drivers’ licenses and restored and how the license will remain suspended if money is not paid.  This directly violated the commitment promised by the DOJ to help ensure that citizens receive equal justice and due process when being faced with drivers’ license suspensions.

The next suggestion that has been offered by the letter from the DOJ representatives is in reference to bond and bail amounts as they relate to prohibiting poor people from being released from jail in exchange for money.  To be clear, bail is a bond payment for a defendants’ release from jail prior to court proceedings, (Council of Economic Advisors Issue Brief, 2015).  Once bail has been paid, the defendant is released, as long as s(he) follows the terms of the bail conditions.   In most states, regardless of conviction, bail is fully refunded minus any accrued fees owed to the court or to the bail bonds person (if the arrested must use one to purchase temporary freedom).  This is not true for contempt of court child support cases.  Even though the DOJ does not identify bail and bond practices related to child support cases, the authors of the letter are clear about the violations that occur when a defendant is indigent and held on child support contempt of court charges.

Grupta and Foster (2016) write that when indigent defendants are arrested for failure to make payments they cannot afford; they can be subjected to another independent violation of their rights.  This violation occurs across the country as more and more parents (some non-biological) are incarcerated for undetermined lengths of time simply for being unable to pay the arrears.  These citizens are being subject to prolonged detention due to unlawful bail and bond practices.  The terminology associated with bail is different (as with many other components) when addressing child support issues and guidelines.  For instance, the amount needed to temporarily purchase ones’ freedom is referred to as a purge instead of a bail amount.  A child support purge, according to Kaylee Remington of the Morning Journal (2014), is a court ordered amount of money that must go towards child support unpaid in order to avoid going to jail.  The greatest difference between bail and a purge is that the money paid in order to secure freedom is non-refundable in purge cases.  This means that when a person cannot afford to pay arrears and is subsequently incarcerated due to failure to pay, s(he) has essentially becomes a debtor in prison. 

There have been many arguments against the child support system utilizing the outdated and barbaric debtor prisons punishment in order to put people behind bars just because they are poor.  Yet, the state and federal governments choose to ignore the blatant violations when officials are enforcing an expelled reprimand.  Since the unprecedented Turned vs. Rogers case which was decided in 2012, states are showing little signs of re-abolishing debtors’ prisons or ending the employ of the purge process when incarcerating parents owing child support debt.  There have been nearly over a dozen ‘deadbeat’ parent arrest round-ups across the country after the DOJ released its report in March.   There doesn’t seem to be any changes to the arrest policies on the horizon.

In early April, Harris County Texas deputies began arresting debtor parents who allegedly owed approximately $20,000 collectively. There was no mention of indigency hearings upon or after arrest or that parents who could not afford to purge the child support amount would be immediately released from custody.  On April 28th of this year, Jefferson County, AR executed arrest warrants on delinquent parents christening the plot ‘Operation Mother’s Day’.  There was no celebration for the 15 people arrested and detained in order to satisfy a debt.  To add insult to injury, the police decided to take the operation a step further in order to humiliate the parents who were being pursued for child support warrants.  Based on an article written by Ray King of the Pine Bluff Commercial (2016), the sheriff’s department began posting the photos, names, and amounts owed on the sheriff’s office website and on social media.   There was no information provided that any of those arrested were granted an indigency hearing in order to determine their financial status.  Arizona is humiliating and hunting parents all while violating due process laws. 

Finally, months after the Civil Rights Division in conjunction with the DOJ released the letter outlining the principles that should be applied when citizens are accused of breaking the law, more arrests were executed against people accused of owing child support debt.  Andy Mehalshick of the PA Homepage (2016) reported that as of May 1st, arrest warrants were issued for 191 parents, who were in arrears on child support payments.  Based on the history of Michigan and the Carell Alexander case, it is not an unreasonable prediction to state that some of the warrants were undoubtedly issued for non-parents as well as actual parents accused of owing child support arrears.  Unemployment and underemployment are seldom mentioned in articles bashing the alleged ‘deadbeats’.

Instead there is strong rhetoric concerning the welfare of the child(ren) and any talk of the government retaining billions in collection money for Temporary Assistance for Needy Families (TANF) families is conveniently omitted.   Unfortunately, parents are still being incarcerated and due process rights are being violated.  Of the recent arrests in Michigan, the judge sent three fathers to jail until they pay up, (Mehalschick, 2016).  Any information concerning an indigency hearing was wither accidently deleted or did not exist.  The latter is more believable since 180 parents spent time in prison in 2015.  The pattern of unconstitutional behavior and blatant disregard to the law against parents (some non-parents) owing child support debt will continue until ‘We the People’ force the government to comply with its own rules and guidelines.

The federal and state government officials seem to thoroughly enjoy shifting the blame onto one another when questioned about the unconstitutional child support system in America.  Once in a while, cases such as Bearden vs. Georgia, 461 U.S. 660,671 (1983) and Turner vs. Rogers, 131 S.C. Ct 2507 (2011) shine the spotlight on the illegalities of programs such as the one enforced by the child support agency.  This year, amidst accusations of racial bias and inequalities based on financial status governing who is being legally punished most often and who is met with the threat of more potential financial ruin and debt, the DOJ has stepped in to investigate.  The Department has found that poor Americans are being deprived their rights to due process as well as having their equal protections, under the law, violated based solely on financial status.  It is not a crime to be poor.  Incarcerating parents (some non-parents) for owing child support arrears while being poor without observing their undeniable rights is a serious and inexcusable offense.  Before this letter and these basic constitutional principles are swept under the proverbial rug, again, people must hold the officials (child support workers, police, magistrates, judges, etc) accountable when they issue and execute arrest warrants, suspend licenses, and pass-out prison sentences against our most vulnerable citizens.  Contrary to the current atmosphere in the US, a person can be in a lower-income bracket and/or considered indigent and still possess excellent parenting skills.  The war against the poor, especially those in debt (child support debt or otherwise) must be effectively fought against and conquered if we are to follow the Constitution of the United States.  The sooner this happens, the better both children and parents will be in our society.

References:

Council of Economic Advisors Issue Brief. (2015, December). Fines, fees, and bail-Payments in the criminal justice system that disproportionately impact the poor. Retrieved from https://www.whitehouse.gov/sites/default/files/page/files/1215_cea_fine_fee_bail_issue_brief.pdf

DC.gov. (n.d.). Child support services division-Enforcement tools. Retrieved from cssd.dc.gov/page/enforcement-tools

Grupta, V., & Foster, L. (2016). Dear colleague letter regarding law enforcement fees and fines. Retrieved from U.S Department of Justice, Washington D.C. website: https://webcache.googleusercontent.com/search?q=cache:o_5q2DN9164J:https://www.justice.gov/crt/file/832461/download+&cd=1&hl=en&ct=clnk&gl=us

Jones, V. (2016, March 18). Arrests made in annual coffee county child support roundup - Story. Retrieved from http://www.dothanfirst.com/news/arrests-made-in-annual-coffee-county-child-support-roundup

King, R. (2016, April 28). Roundup: Operation mother’s day dubbed success | Pine bluff commercial. Retrieved from http://pbcommercial.com/news/local/roundup-operation-mother-s-day-dubbed-success

Mehalshick, A. (2016, May 8). I-Team: Cracking down on deadbeat parents - Story | PAHomepage. Retrieved from http://www.pahomepage.com/news/i-team-cracking-down-on-deadbeat-parents

National Conference of State Legislators. (2014, January 30). License restrictions for failure to pay child support. Retrieved from http://www.ncsl.org/research/human-services/license-restrictions-for-failure-to-pay-child-support.aspx

Pozo, N. (2015, December 23). Operation deadbeat parents - Story | WAGA. Retrieved from http://www.fox5atlanta.com/news/61352073-story

Remington, K. (2014, May 13). Ninth district court of appeals upholds lorain child support case. Retrieved from http://www.morningjournal.com/article/mj/20140513/NEWS/140519955

Solomon-Fears, C. (2011). Child support enforcement and driver’s license suspension policies (R41762_gb). Retrieved from Congressional Research Service website: http://greenbook.waysandmeans.house.gov/sites/greenbook.waysandmeans.house.gov/files/2012/documents/R41762_gb.pdf

US Legal, Inc. (n.d.). Purge mount law & legal definition. Retrieved from http://definitions.uslegal.com/p/purge-amount/

Utah Department of Administrative Services Division of Administrative Rules. (2016, June 1). UT Admin Code R527-260. driver license suspension for failure to pay support. Retrieved from http://www.rules.utah.gov/publicat/code/r527/r527-260.htm

Vinson, M., & Turetsky, V. (2009, June 12). State child support pass-through policies. Retrieved from http://webcache.googleusercontent.com/search?q=cache:5Qqki5S6M7cJ:www.clasp.org/issues/child-support-and-fathers/highlights/state-child-support-pass-through-policies+&cd=2&hl=en&ct=clnk&gl=us