(Prosecutor Wesley Bell Photo: VoteWesleyBell.com)
The incoming prosecutor in St. Louis, County, Missouri, Wesley Bell, made headlines during this past month as he declared that he would stop prosecuting child support cases. This decision was described in more detail from Monique Judge of The Root (2019) who wrote that according to Prosecutor Bell, people who fail to pay child support will no longer be prosecuted, nor will failure to pay child support be used as a sole reason to revoke a person’s probation. For those of us advocating for child support reform in the United States, Bell’s public declaration marked a huge victory in a decades long movement for justice from lawmakers charged with overseeing the family court and child support systems. However, headlines quickly followed the initial announcements expressing the outrage that the people felt, not only in Missouri, but across the entire nation, concerning Bell’s decision to stop seeking jail time in child support cases.
What the country needs to understand is that ending the prosecution of parents (some non-parents) is constitutional depending on the circumstances of the individual child support case. For this reason, people need to support Bell’s decision. To begin, opponents to the decision must read the Supreme Court of the United States’s (SCOTUS) decision concerning the Turner v. Rogers (http://thechildsupporthustle.com/turner-v-rogers-and-the-scotus-decision/) case in 2011. This ruling set precedence on how non-custodial parents should be treated, legally, when they have been proven to be indigent, thus financially unable to pay the child support debt they are alleged to owe. But before critical elements of the decision can be explained, a pivotal point must be made concerning child support guidelines and whether a parent is actually breaking the law when he/she fails to make payments.
The Office of Child Support Enforcement or OCSE released an Information Memorandum in August of 1999 regarding The Child Support Recovery Act (CSRA) of 1992. In the memorandum, it clearly states that the CSRA was enacted by Congress making it a Federal crime to willfully fail to pay child support, (OCSE, 1996). Likewise, in every state, a person is only supposed to be charged with a civil or criminal offense of failure to pay child support if that failure has been proven to be knowingly and/or willful. According to the state of Missouri, Revisor of Statutes (2017) in reference to criminal non-support, a parent commits the offense of non-support if such parent knowingly fails to provide adequate support. Following Federal and State law, Missouri, in this case, any person proven to be without resources to pay child support and therefor, does not pay child support, has not broken any law. Thus, that individual should not face any contempt charges whether civil or criminal in any state.
Getting back to the Turner v. Rogers decision, according to the OCSE (2012), a court may not impose punishment in a civil contempt proceeding when it is clearly established that the alleged contemptor is unable to comply with the terms of the order. Meaning that if an obligor cannot afford to pay, he or she is not ‘willfully’ failing to pay, and jailing that person is a violation of their right to due process. This is completely in line with the statement made by Bell in an interview with Sandra Jordan of The St. Louis American. According to Jordan (2019), he (Bell) does not want someone to go to jail for being poor. It is equally important to specify that Bell is not trying to stop all prosecutions in St. Louis, County. Since the backlash, he has stated that he is interested in ending criminal prosecutions and concentrating on civil prosecutions in child support cases. One of the main reasons, he states, is that with a criminal matter, the person is prosecuted, if they get probation or incarceration, the child support still accrues, (Jordan, 2019). Bell also showed concern with the barriers that a prisoner faces in regards to gaining and holding steady employment once released from incarceration.
Transferring these child support cases from criminal to civil matters does little to uphold the laws and The Constitution if the decision is not accompanied with the mandated criteria that the Turner decision held must be used before incarceration. This is true in Missouri and in every state across the nation. One extremely important piece of the case ruling refers to the reviewing of all child support cases before the case is referred for contempt of court charges. Child support agencies should re-examine state and local policies and practices regarding civil contempt, (OCSE, 2012). Even after nine years since the ruling, states continue to ignore the criteria handed down by the highest court in the land and regularly file contempt charges against non-custodial parents who have not received proper screenings. The reason for the screenings is so that obligors are afforded sufficient due process protections and that initiation of civil right proceedings is appropriate, (OCSE, 2012).
While it is commendable that Prosecutor Bell has decided to stop criminally prosecuting people charged for failing to pay child support debt, this same effort must be executed in civil cases as well. Additionally all opposers of his decision should be made aware of all of the reasons that protesting the decision to stop persecuting child support cases can be unconstitutional. Prior to any child support case making its way in front of a judge, there are mandatory actions that must be completed by the child support case workers enforcing Title IV-D, or welfare, cases. The OCSE (2012), wrote that wherever possible, the IV-D agency should make an inquiry into the actual and present circumstances of the individual obligor before initiating contempt. If the government officials in St. Louis, County or in any county across the country, are not practicing this screening process before submitting child support cases for contempt of court for nonpayment of child support, they are violating the constitution and violating the decision made by the SCOTUS.
Furthermore, child support agencies should only pursue a civil contempt action leading to incarceration when there is a good faith basis to believe that the obligor willfully violated the child support order, (OCSE, 2012). Those disagreeing with Bell’s decision to stop criminally prosecuting child support cases must fully understand the restrictions involved with prosecution parents in civil contempt cases as well. It is important to that Bell will no longer be seeking to revoke probation solely on the basis of failure to pay child support, (Joel Currior, 2019). The implementation of the proposed policy reverts back to the determination of both the willful failure to pay and the ability to pay (yet failing to pay), which, in essence, have the same meaning. If a parent is yachting and vacationing in their second home in the South of France, while his/her child is living in squalor in America, that is a clear case of a parent ‘willfully’ failing to pay child support. It has been proven, in tens of thousands of cases, that this is not the reality for most parents who have been ordered to pay child support.
Joey Arthur of the OCSE (2018) reported that the majority (60%) of debtors with more than $100,000 in arrears had no reported income in the National Directory of New Hires (NDNH). These obligors or debtors are the very people targeted in contempt of court cases, whether civil or criminal, and the very ones that Bell and the SCOTUS are trying to protect from being tossed into debtor prisons. Debtor prisons is an old term for a long outlawed (supposedly) punishment used by imprisoning people when they could not afford to pay a debt. Arguably, child support debt or arrears has risen to one of the most common reasons for the use of debtor prisons in America. This form of punishment is still used after the OCSE (2012) relayed in its report that, based on Turner v Rogers ruling, basic due process requires that the alleged contemptor be provided an opportunity at the contempt hearing to respond to statements and questions about his/her financial status.
Today, most parents are arrested on writ of attachments or arrest warrants without being afforded the opportunity to answer such questions about their financial status. This, as previously stated, is a violation of the right to due process. The fact that Bell, as a newly elected prosecutor, is making one of his first priorities to end the vilification of poor parents should be praised and not discouraged. If there were not a decision made by the SCOTUS, what citizen would agree that locking a parent away is a successful way to collect money from low-income and poor parents? Most would not agree. In fact, research shows that jail reduces a person’s ability to work, to find work, to be employable, and to make child support payments, (OCSE, 2015). Even though Missouri and every other state is behind the times when it relates to rewriting their child support contempt guidelines in order to be in compliance with the SCOTUS decision, Bell is making the first step in advancing his county to ensure that poor parents are not criminally prosecuted in modern day debtor prisons.
Switching gears, it is equally important to discuss The Letter released by the Department of Justice under the Barack Obama Administration and at the direction of Former Attorney General (AG) Loretta Lynch in December of 2016. https://drive.google.com/file/d/1peI5D6AlaXGYqEOZg_YOMbMfX81h6J99/view?usp=drivesdk. To be clear, The Letter was issued in direct relation to an investigation conducted and civil lawsuit launched after the shooting of 18 year old Michael Brown on August 9, 2014 in Ferguson, Missouri. According to Mike Bergman, Sari Horwitz, and Wesley Lowery of The Washington Post (2016), the lawsuit alleged the Ferguson police department and municipal courts engage in an unconstitutional “patterns and practices” of using force without legal justification and using force and “engaging in racially discriminatory law enforcement conduct.” These accusations against law enforcement and courtroom officials subsequently spilled over to protecting citizens against treatment when related to child support enforcement.
Of the negotiations offered by the DOJ in hopes of reforming the legal system in Missouri, then city council member, Wesley Bell, defended the proposed changes saying that they “maintain the spirit and integrity of the consent decree while letting Ferguson move forward with needed reforms, (Bergman, et. al., 2016). Again, keeping in line with Bell being on the right side of the law and the right side of the constitution, he should be support and not demonized for his position in the child support policy decision. The DOJ (2016) was letter was extremely detailed as it was intended to:
‘address some of the most common practices that run afoul of the United States constitution and/or other federal laws and to assist court leadership in ensuring that courts at every level of the justice system family and lawfully, as well as to suggest alternative practices that can address legitimate public safety needs while also protecting the rights of participants in the justice system’.
This statement is critical in how the states operate their legal institutions, but unlike many other statements from federal agencies addressing civil rights violations, this letter continues by addressing the violations executed upon parents when states enforce child support guidelines when due process is ignored.
For instance, the first ‘basic constitutional principle’ mentioned in The Letter addresses the use if debtor prisons and how they should not be utilized when a citizen is proven to be indigent. Specifically, a defendant must be granted certain rights before he or she is incarcerated for any length of time. The DOJ (2016) stated that due process requires that some standards include both notice to a defendant that ability to pay is a critical issue. When judges deny that notice to defendants, especially in child support cases, the constitution has clearly been violated. This is true whether in Missouri or Ohio, New York or Texas, yet states still ignore this mandatory constitutional protection. When asked about these violations in 2018, Dave Ward, The Director of Constituent Affairs for Ohio Governor John Kasich’s office responded in part by stating that, ‘the concerns expressed have to do with an issue that is outside the jurisdiction of the Governor’s Office’. https://drive.google.com/file/d/1L3I5IoCEOtymu1FjzsK0Z4tPGXaD0AJZ/view?usp=drivesdk. All attempts to follow-up in response to this email went unanswered.
The right to counsel is one that has forever argued in child support cases. On one hand, defendants in civil contempt cases, such as some child support cases, according to the OCSE, are not necessarily guaranteed the right to counsel. The OCSE (2012) wrote, in reference to Turner v. Rogers, that the state does not necessarily need to provide counsel to an unrepresented non-custodial parent if the state has “in place alternative procedures.” On the opposite end of this argument is the fact that a citizen should be granted the right to counsel when incarceration is a possible punishment for any charges brought against him or her. Missouri is not alone in implementing imprisonment as a punishment for non-payment of child support debt, but the punishment in the state is quite harsh. A person can be charged with a felony, face a prison sentence of between one to four years, and be fined up to $5,000.
We must not forget that unlike other crimes where serving a prison sentence may help reduce the fines owed to the state, child support fines do not disappear and the debt continues to accumulate during incarceration. Although the Obama Administration ‘issued rules’ that requested that states lower or end expected child support payments when a person is incarcerated for 180 days or more before he left office, there have been many reports of these modifications going undecided or denied when filed by prisoners Returning to the right of a defendant to have an attorney when he or she is facing incarceration, the DOJ (2016) stated that courts must ensure defendants’ right to counsel in appropriate cases when enforcing fines and fees. Many still make the claim that child support cases are civil in nature and do not meet the criteria for requiring an attorney, The Letter is clear in describing how to handle these circumstances as well.
In cases concerning the payment of fines and fees and unrelated child support, The DOJ (2016) stated that under the Fourteenth Amendment, defendants may be entitled to counsel in civil contempt cases for failure to pay fines and fees. The DOJ goes even further by speaking directly to incarceration in child support cases. Although there is no automatic right to counsel in civil contempt proceedings for non-payment of child support, due process is violated when neither counsel nor adequate alternative procedural safeguards are provided to prevent incarceration for inability to pay, (DOJ, 2016). Again, the fact that Bell is willing to go against the status quo and uphold an unpopular decision made by the SCOTUS and recommendations made by the DOJ concerning civil rights in child support cases should be celebrated and not ostracized by lovers of the child support system.
According to the DOJ (2016), warrants must not be issued for failure to pay without providing adequate notice to a defendants. Why then are places such a Kingston, North Carolina Stuka arresting people without these protections. Delisa Robles of WNCT (2019) reported that nine people had been arrested after deputies concluded an investigation into child support in Lenoir County. The article failed to mention whether or not those arrested were given a hearing to determine their ability to pay. Based on history, more than likely, they were denied that right. Of course, North Carolina is not alone in violating the constitution when conducting arrests for allegedly owing child support debt. Texas, New Jersey, Pennsylvania, and Michigan are among states that frequently conduct child support ‘sweeps’ and never mention whether the people arrested ‘willfully’ failed to pay child support and or if they had the ability to pay and refused.
It is important to mention that when President Donald Trump elected Former AG Jeff Sessions rescinded The Letter in December of 2017. The guidance is still relevant because of the court cases and constitutional violations cited within The Letter. The document should be used as a mandatory guide for any states attempting to reform child support laws and guidelines. The country continues to issue arrest warrants when child support agencies report that a parent has failed to pay child support. These writ of attachments are issued without the necessary hearings and/or safeguards that are supposed to be offered. Because of this total disregard for the law, parent across the nation are being held because they cannot afford the ‘key to the jail cell.’
Instead of Bell receiving negative media attention which has included allegations of he and one of his senior staff members failing to pay child support, the media outlets should be informing the public of the importance of his decision based on the law and more importantly, The Constitution. Even the Missouri Constitution has a provision outlawing the use of debtor prisons. According to the Missouri Constitution, Article 1 Section 11, no person shall be imprisoned for debt. The section goes on to state that a person can be imprisoned for nonpayment of fines/penalties ‘imposed by law’, but definitely the accused in these cases are still guaranteed their right to counsel before they are incarcerated.
As the country grips the reality of the longest government shutdown in history and prepare to bounce back from what will surely be a lengthy recovery, we must be mindful that an inability to pay any bill should be a crime. That is, unless the person refusing to pay has the money to pay the debt and willfully refuses to pay. This in not an opinion of child support reform advocates or opponents of the reintroduction of the use of debtor prisons. This is a decision held years ago by the some of the country’s most respected judges holding the most important judicial seats in the nation. It is our duty to uphold those rulings no matter how much an individual may oppose the decision.
The fact that the states are ignoring The Constitution and the ruling of the justices should be disturbing to all that believe in liberty and justice for all. It is commendable that Prosecutor Bell is standing with the AG Lynch, The SCOTUS, and those that believe that being poor should never be illegal in these United States. We need this decision and any similar decisions that may follow to be upheld in every county city, and state across the nation. The use of debtor prisons is reverting the US to a past era where certiorari policies and laws have been abolished for compassionate and extremely important reasons.
Bergman, M., Horwitz, S., & Lowery, W. (2016, February 11). Justice dept. sues the city of Ferguson to force policing reform. Retrieved from https://www.washingtonpost.com/news/post-nation/wp/2016/02/10/ferguson-demands-changes-to-agreement-reforming-police-tactics-justice-dept-criticizes-unnecessary-delay/?noredirect=on&utm_term=.d51660796932
Department of Justice. (2016, March 14). DOJ dear colleague.pdf. Retrieved from https://drive.google.com/file/d/1peI5D6AlaXGYqEOZg_YOMbMfX81h6J99/view?usp=drivesdk
Office of Child Support Enforcement. (2012, June 18). Turner v. Rogers guidance. Retrieved from https://www.acf.hhs.gov/css/resource/turner-v-rogers-guidance
Office of Child Support Enforcement. (2015, October). Jobs not jail. Retrieved from https://www.acf.hhs.gov/sites/default/files/programs/css/jobs_not_jail_final_10_02.pdf
Rascoe, A. (2016, December 19). Obama administration revamps child support rules for prisoners. Retrieved from https://www.reuters.com/article/us-usa-criminaljustice-childsupport-idUSKBN1482IK
Robles, D. (2019, January 11). 9 arrested after investigation into child support in Lenoir county. Retrieved from https://www.wnct.com/news/local-news/9-arrested-after-investigation-into-child-support-in-lenoir-county/1697339247
State of Missouri. (2017, August 28). Revisor of statutes. Retrieved January 20, 2019, from revisor.mo.gov/main/OneSection.aspx?section=568.040&bid=34712&hl=
Vote Wesley Bell. (2018). Meet Wesley — Vote Wesley Bell. Retrieved from https://www.votewesleybell.com/meet-wesley