Child Support and the Death of Walter Scott

April 12, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

The shooting in South Carolina of Walter Scott by police officer Michael Slager has topped the news for several days now (NBC News, 4/10/15). It comes on the heels of other police shootings that have garnered much of the news media’s attention. Unlike those other cases, Slager has been charged with murder in Scott’s killing. The incident, caught on video, showed Scott fleeing his automobile after having been stopped by Slager who then fires eight shots killing him.

What’s come out more recently is the fact that, in all probability, Scott fled because he owed back child support for which he’d been previously jailed. His father, Walter Sr., has said he believes his son couldn’t face another stint in jail.

In an interview with TODAY, Scott's parents explained why they believe their son bolted from Slager before the deadly shooting. "I believe he didn't want to go to jail again," Walter Scott Sr. told TODAY. "He just ran away."

That brings us to this surprisingly fine article on the State of South Carolina and child support (Huffington Post, 4/10/15).

Readers of this blog will perhaps recall that South Carolina is the state that appeared before the United States Supreme Court in the case of Turner v. Rogers arguing in support of its practice of refusing to appoint legal counsel to represent indigent defendants in child support cases where one possible outcome was jail. In one of the more scurrilous decisions by the nation’s highest court, the state won. It seems that, when those accused of criminal wrongdoing face any sort of sanction by the state, they’re entitled to a state-appointed attorney if they can’t afford one themselves. But when a parent is accused of owing child support and is faced with going to jail, no such right exists. If you understand the difference, let me know.

Meanwhile, the august justices haven’t the slightest notion of what a child support hearing actually consists of. One veteran lawyer described the scene in Georgia courts in which five minutes is considered a long child support hearing.

The HuffPo article reports on the research done by University of South Carolina law professor, Libba Patterson.

In 2009, Patterson conducted a survey of 33 county jails in South Carolina, which found that one out of every eight inmates — or 13.2 percent of the inmate population — was behind bars for contempt of civil court after falling behind on child support payments.

That’s right, more than one inmate in eight is inside for child support. What does the Office of Child Support Enforcement have to say on that subject? In a report in 2009, the OCSE revealed that a whopping 63% of parents behind on their child support payments reported less than $10,000 per year in income. The OCSE was making two points. First, family courts are setting support orders at levels non-custodial parents often can’t pay. Second, those parents adversely impacted by draconian child support punishments are overwhelmingly poor.

Patterson concurs.

Seventy-five percent of the parents Patterson examined in her 2010 paper were indigent, meaning they testified that they were presently or previously unemployed or that they were having difficulties finding work. And nearly 70 percent of the noncustodial parent-debtors were black, even though blacks made up less than 28 percent of South Carolina's population that year.

And, since South Carolina is one of only five states that refuses legal representation to indigent child support debtors, how many of those non-custodial parents had a lawyer when they were hauled into court?

In a separate study in 2010, Patterson surveyed hundreds of cases across South Carolina and found that low-income, noncustodial parents like Scott often ended up in jail without being represented by an attorney in civil court. In fact, the study showed that over 98 percent of parents being held in contempt for non-payment of child support did not have legal counsel. Ninety-five percent of the parents held in contempt ended up being sentenced to jail, with an average sentence of three months.

To repeat, over 98% of those in court on contempt charges for non-payment of child support had no legal representation and 95% of them went to jail. Now what are the chances that a person goes to court without a lawyer knowing he’ll likely go to jail if he can afford to pay for representation? And if he can’t afford a lawyer, what are the chances he can afford to pay his child support. Walter Scott owed about $18,000, far more than it would cost to hire a lawyer for a five-minute hearing.

The point being that Patterson’s findings agree with those of the OCSE. Those who fall behind on child support orders are overwhelmingly the poorest of the poor.

And of course, once they’re behind bars, how does that help the children they’re supposed to be supporting? Are they more able to pay when they’re in jail or less? How much did little Andy or Jenny receive while Dad was in the slammer? How are their job prospects once they get out? Improved or impaired? Walter Scott had a job when he was gunned down. If he’d gone to jail for failure to pay, would that have helped or hurt his child?

Patterson has some answers.

This system, Patterson later wrote in an amicus brief, amounts to “a modern day debtors’ prison for poor noncustodial parents who lack the ability to pay support,” and creates a “recurring cycle of incarceration that diminishes prospects for employment and deprives children of an opportunity to build a relationship” with their incarcerated parents.

Some cynics claim that, when faced with jail, child support obligors have a way of coming up with what they owe. That is, they’ve got the money, but just refuse to pay until jail looms. Generally speaking, that’s utter nonsense as Patterson’s statistics amply demonstrate. The simple fact is that some parents have enough friends or relatives who are willing to chip into the “Keep Dad Out of Jail” fund. But the vast majority have nothing of the sort on which to fall back. They just show up in court, lawyerless, and head off to jail.

Meanwhile, the OCSE itself debunks the claim that jail helps.

However, the [Turner] case did result in new federal guidelines from the Department of Health and Human Services’ Office of Child Support Enforcement, which emphasized to state agencies that there is “no evidence that incarceration results [in] more reliable child support payments that families can count on to make ends meet.”

That of course is because the poor can’t pay. Putting them in prison doesn’t make them more able to do so. It seems odd to have to say so, but there it is.

As is all too often the case, the very worst aspects of our justice system are visited on the poor. Draconian, ineffective and counterproductive child support enforcement laws are one clear example of that particularly disgraceful rule.

Tragically, Walter Scott is dead. His death highlights two of this country’s worst abuses of basic human rights. The only hope to draw from his killing is that it may contribute to the rectification of those abuses.

Thanks to HuffPo’s Christopher Matthias for a fine article.

And thanks to Don for the heads-up.

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