Kenya N. Rahmaan
There has been reporting in recent days that the Department of Justice (DOJ) may be taking steps to diminish certain constitutional rights afforded to United States citizens. Although yet to be verified by Attorney General William P. Barr or anyone from the Trump Administration, there seems to be reliable evidence that these requests have been accurately reported. Betsy Woodruff Swan of Politico (2020) wrote that:
the Justice Department has quietly asked Congress for the ability to ask chief judges to detain people indefinitely without trial during emergencies — part of a push for new powers that comes as the novel coronavirus spreads throughout the United States.
While many throughout the social media world question whether this is true or false, others aware of constitutional rights being denied to US citizens on a daily basis, are more surprised of the DOJ even asking for permission to implement such violations.
Based on who you ask, there are certainly instances of constitutional violations within the judicial system relating to hundreds of alleged violations. One of the most common are the constitutional violations that occur within the child support and family court systems. While, if one were to examine each child support court case individually, the amount of violations would, undoubtedly, be insurmountable. However, for the purposes of this article, only a couple of violations will be discussed.
To begin with, Rolling Stone reporter, Peter Wade (2020) relays that the Constitution grants citizens habeas corpus which gives arrestees the right to appear in front of a judge and ask to be released before trial. If the Congress approves these alleged requests by the DOJ, those arrested could possibly be detained without habeas corpus. To be clear, a writ of habeas corpus, according to FindLaw, is a court order demanding that a public official (such as a warden) deliver an imprisoned individual to the court and show a valid reason for that person’s detention. While almost everyone arrested are usually granted their right to habeas corpus, the same cannot be said for non-custodial parents who have been arrested for allegedly owing child support debt.
In every state and based on Federal law, the U.S. Supreme Court case Turner v. Rogers (https://thechildsupporthustle.com/turner-v-rogers-and-the-scotus-decision/), requires that civil contempt only be used when the noncustodial parent has the ability to pay and is willfully avoiding paying, (National Conference of State Legislators (NCSL), 2019). And yet, all across the country, non-custodial parents are being jailed indefinitely after arrest warrants have been issued without a hearing being held to determine their ability to pay. If the parent cannot afford to purchase their freedom, they will be imprisoned indefinitely. Unlike other crimes, being incarcerated for allegedly owing child support debt will not decrease the amount owed nor will days served behind bars count towards time served to ensure an earlier release date.
Writs of habeas corpus are ignored in child support cases every day. On many occasions, and especially after the Supreme Court ruling in Turner v. Rogers, attorneys and advocates have submitted writs demanding that their incarcerated clients be produced and released, only to have their motions denied. The most recent case involves a Texas father (http://thechildsupporthustle.com/hey-texas-free-josh-jaros/) being held in a debtor prison, which is extremely common in child support cases. His representatives are continuously denied their petitions for the judge to produce his body. If the thought of DOJ ignoring constitutional rights to citizens during the CoronaVirus pandemic is unsettling, so should the government ignoring the rights of non-custodial parents across the nation when no national emergency has been declared.
Another request that the DOJ may be asking of Congress refers to detaining people indefinitely during the pandemic emergency. Those non-custodial parents who are arrested for allegedly owing child support debt and routinely denied their due process rights, are detained indefinitely in jails across the country for inability to pay. As reported by the Federal Office of Child Support Enforcement (OCSE) the majority (60%) of debtors with more than $100,000 in arrears had no reported income in the National Directory of New Hires (NDNH). Without the financial means to pay the amount allegedly owed in arrears, they cannot buy the key to unlock the jail door to gain their freedom. And there they sit, behind bars, indefinitely.
Although there are plenty of sources that detail the amount of time a person convicted of failing to pay child support may spend behind bars (http://thechildsupporthustle.com/how-much-did-your-state-receive-in-federal-incentive-money-for-operating-the-child-support-program-in-2018/), the data is missing that would tell us how long a parent spends incarcerated when they cannot afford the keys to purchase their freedom. That should tell everyone that there are people with child support orders who are being held (not convicted) in contempt of court and being held without a release date. That should have scared US citizens years ago when these illegal detainments first began. But instead, the label of ‘deadbeat’ was used to justify constitutional violations that may now spill over to those not involved with the child support system. Scared now?
Whether or not people believe that the DOJ has submitted these requests to Congress and whether or not Congress approves said requests, the fact remains that these constitutional violations have been in place for decades. Even if this development fizzles flat and after the pandemic becomes a ‘remember when’ discussion, until we recognize the constitutional violations that take place within the child support and family court systems, these violations will continue indefinitely. If the thought of Congress approving any of these requests bothers you even slightly, please consider the world that non-custodial parents have been forced to live in since they were labeled ‘deadbeats’. This treatment is unacceptable and more importantly, it’s unconstitutional. Sadly, within the United States and around the world, second class citizens and non-custodial parents have become synonymous.
Arthur, J. (2018, July 31). Do parents who owe the most child support debt have reported income? Office of Child Support Enforcement | ACF. https://www.acf.hhs.gov/css/ocsedatablog/2018/07/do-parents-who-owe-the-most-child-support-debt-have-reported-income
FindLaw. (2019, February 1). Writ of habeas corpus. Findlaw. https://criminal.findlaw.com/criminal-procedure/writ-of-habeas-corpus.html
National Conference of State Legislatures. (2019, March 4). Child support and incarceration. Legislative News, Studies and Analysis | National Conference of State Legislatures. https://www.ncsl.org/research/human-services/child-support-and-incarceration.aspx
Swan, B. W. (2020, March 21). DOJ seeks new emergency powers amid coronavirus pandemic. https://www.politico.com/news/2020/03/21/doj-coronavirus-emergency-powers-140023
Wade, P. (2020, March 21). DOJ wants to suspend certain constitutional rights during coronavirus emergency. Rolling Stone. https://www.rollingstone.com/politics/politics-news/doj-suspend-constitutional-rights-coronavirus-970935/