In a mixed result for the rights of indigent parents, the Supreme Court yesterday held that the year-long incarceration of a South Carolina man for failure to pay child support violated the Constitution because adequate safeguards had not been in place to ensure that his failure to pay was willful. However, the Court also ruled that parents facing jail time for failure to pay child support do not have a categorical right to a court-appointed defense attorney when the other parent is unrepresented.
The case, Turner v. Rogers, involved an appeal of an order finding Michael Turner in civil contempt because of his failure to pay child support. At the hearing, Mr. Turner had been unrepresented by counsel and had attempted to explain to the judge why he could not pay his debt. The judge did not make any finding as to Turner’s ability to pay the arrears and nonetheless ordered Turner to serve a year in prison.
Debt Collection Proceedings Not Addressed by Ruling
At the outset, it’s worth noting that the Court explicitly confined its ruling to cases in which an unrepresented custodial parent brings a petition for civil contempt. The Court appeared especially concerned about the potential for an imbalance of power if those in debt were appointed counsel while those seeking to collect the arrears — often mothers supporting their children — were not.
Thus, the Court did not address the question of whether counsel is required in the vast number of cases involving state agencies seeking to collect past due child support. Nationally, about half the outstanding child support debt is owed to the government, which obtains the right to collect from recipients of welfare benefits.
In addition, the decision did not address situations in which a court uses contempt or other proceedings to enforce court orders to pay fees arising out of criminal cases. A Brennan Center report last year found that out of 15 states studied, 11 had statutes or practices that authorize incarceration for willful failures to pay criminal justice debt, often under the guise of civil contempt.
Nor did the Court address “unusually complicated” cases in which counsel might be necessary to fully flesh out the issues.
Challenges to Enforcement
While Turner wisely left these situations for another day, it created a thorny set of implementation questions for the lower courts. Following the suggestion of the Solicitor General, the Court held that due process requires the following alternative procedures before an unrepresented parent can be incarcerated for failing to pay:
1. Notice that ability to pay is the issue to be decided;
2. A form to elicit information about financial circumstances;
3. An opportunity to respond to questions triggered by the form; and
4. An express finding by the court that the defendant has the ability to pay.
Such procedures are more than warranted and may well provide sufficient safeguards in a select number of cases. However, while the Supreme Court’s holding is the law of the land, it is unfortunately not self-executing. As my colleague Laura Abel has written, enforcement of these standards will require vigilance by the courts and bar alike.
What happens, for example, when a judge fails to make a finding about ability to pay, as the judge did here? Or when a court fails to make the right inquiries based on the responses to a form? Who will notice?
When counsel isn’t appointed at the outset, it’s all too easy for people to slip through the cracks and languish behind bars, as documented in this Brennan Center report on Florida’s criminal justice debt. Take the case of Rafael E. from Highlands County, Florida, who spent four months in jail several years ago for failing to pay court debts of less than $750, which no judge had ever determined he had the ability to pay. It was only after he happened to come to the attention of the local public defender that his release was secured.
With scant checks in the system, it is hard to take comfort in the procedural changes mandated by the Supreme Court. They will only work if state courts — already struggling with budget cuts and rising caseloads — find time to take extra care in their dealings with those who are unrepresented.