The XX Factor

Deadbeat Dads and Debtor’s Prison

Can the state jail a “deadbeat dad” without providing him a lawyer?

That’s the narrow legal issue behind a case the Supreme Court hears today. The Sixth Amendment establishes that the defendant in a criminal case has a right to counsel, but failure to pay child support is a civil matter: It’s violation of a civil court order, not a crime. The question before the court is whether the imposition of a long jail term (in this particular case, one year) effectively imposes criminal punishment for the civil contempt charge, and whether, and under what circumstances, the state can deprive an individual of his liberty without providing counsel. Most states do provide a lawyer under these circumstances, but some (including Florida, Georgia, Maine, Ohio and South Carolina) do not. Those states argue, among other things, that there’s no need to provide a lawyer for a defendant who has his own “key” to his cell: payment of the amount owed or a smaller amount set by the court.

That’s the legal question. Behind it, of course, is a story-the story of Michael Turner, who was jailed for 12 months for failing to pay $6,000 in child support that he says he did not have. Who had been jailed before, a number of times, after the mother of his child went on welfare and turned her right to child support over to the state and its implacable enforcement mechanisms. Who says he’s a recovering drug addict who broke his back once he finally found a job, and who asked the judge for mercy. “I just hope you give me a chance,” he said. “I know I done wrong.”

And the story of Rebecca Rogers*, the mother of Turner’s child, who says the only thing that has ever produced any child support from Turner is the threat of jail. Rogers says that on several occasions Turner has been able to pay to stay out of jail and that he sometimes willfully avoids paying, and that at least once chose to buy drugs for himself instead of paying child support.

And then there are the policy questions, many of them-none before the Supreme Court, but all subject to the effect of the Court’s ruling. Is jail the right punishment for the non-paying parent (most, but not all, of whom are dads)? Turner’s attorneys argue that for him, jail is effectively a “debtor’s prison.” He isn’t a deadbeat but a “turnip” (as in “you can’t squeeze blood from a turnip”) and sits in jail not because he won’t pay, but because he can’t. Elaine Sorensen*, author of the article “Deadbeats and Turnips in Child Support Reform,” confirms ( for NPR’s Nina Totenberg ) that “most of those who end up in jail are low-income, and thus, ‘more likely to be a turnip than a deadbeat.’ ”

But in Gwinnett County, Georgia, Sheriff Butch Conway told the Atlanta Journal-Constitution , “We’ve seen some who’ve been jailed come up with $15,000 to $20,000 in a couple of days.” Others will sit in jail over $100. “Some can’t pay it but, sadly, I think some do have the money but just don’t want to pay.”

So why not just provide counsel and some form of out for those who can’t pay? Because providing counsel costs the state money (more than $3 million in North Carolina last year). Georgia’s Seth Harp, who chairs the Georgia Child Support Guidelines Commission, says a Supreme Court ruling requiring lawyers in child support cases could mean the end of the threat of jail time in that state. “We don’t pay enough now for the defense of our criminals,” he says. That $3 million just isn’t in the state budget.

And then there’s the question of what “can’t pay” means. What of the parent who’s lost his job and is now balancing the mandatory child support payment with supporting children from a new marriage? Whose needs take precedence, and how much court time will it take to decide? Court time costs money, too-but then, so does jail time. Just for comparison, Georgia’s Cobb County Jail charged the federal government $42.58 a day for each federal detainee . Randy Miller was jailed for four months in another Georgia jail for failing to pay approximately $4,400. The math on that seems impractical, although maybe the incentive created by the jail time is, as they say, priceless-even for a laid-off middle-age war vet with a foreclosed home and 39 cents in the bank.

Whatever the Supreme Court’s eventual decision on the narrow question, states, parents, and family courts will continue to struggle with the larger ones. As always the laws are likely to get more complicated, not less. It’s an axiom of legal practice that hard cases make bad law, and nowhere is that more true than in Family Court, where every case is a hard case and every law is unfair to someone. Turner v. Rogers doesn’t look like a hard case-it’s a nice clean legal issue that can be decided without too much reference to policy or facts. But while the issue may be narrow and clear, the results will be anything but.

*Correction, March 25, 2011 : This post originally misspelled the surnames of Elaine Sorensen and Rebecca Rogers.