Response to "Return of Debtor's Prison?" Share This:





One of the critical issues with civil contempt is that it now has a standard of proof of clear and convincing evidence. This is higher than the civil standard of preponderance of the evidence, but lower than the criminal standard of beyond reaonable doubt. Clear and convincing evidence requires much more than a judge's say-so. Now, it requires a full-scale investigatory matter requiring a trial by jury, or at least the right to appointed, competent, effective counsel (I've had situations where real estate and patent lawyers were appointed to people facing contempt and jail time, when they needed an attorney knowledgeable in constitutional law, criminal law and family law). Given that 49 out of 50 states (NH is the only one that doesn't) now require appointment of counsel for indigent parents in child support enforcement cases, there is no difference in civil contempt and enforcing a child support order. In fact, child support orders have been declared as judgment debts on the date they are due by every state. Child support has been defined as a "civil" debt and not a "special kind of debt" by all of the the Federal Courts of Appeals that have had these cases before them on interstate criminal matters.



The issue is not whether the matter turns on the "civil" or "criminal" aspect of the case, but whether it deprives a person of liberty. If it does, according to most states' caselaw, statutory law and constitutions, then there can be no imprisonment without full criminal due process, e.g., right to trial by jury, right to appointed competent, effective counsel, right to present evidence, witnesses and testimony, right to an ability to pay hearing, etc.). In the Chadwick case, the PA courts are out-of-bounds with their ruling. This is because it has gone past the remedial and is now past the punitive. The theoretical ability to be jailed for the rest of one's life without any due process has been brought to fruition by this case.



Herein lies the conflict of interest and the unconstitutionality of the use of contempt. Judges are sitting on child support-alimony cases where they have a financial interest in the outcome of such cases (e.g., pension increases, salary increases, bonuses, etc.). Therefore, they are tempted to use their unbridled contempt powers to threaten or actually jail people to extract/extort more and more child support-alimony out of them to increase collections and enforcement. The more collected and enforced, the more reported to the feds to get more reimbursement incentive funding. The vicious cycle.



However, the United States Supreme Court has repeatedly held that judges who sit in judgment of such cases where they have a financial interest in the outcome of such cases is constitutionally unacceptable, and must disqualify themselves from those cases. See, Tumey v. Ohio, 273 U.S. 510 (1927); Ward v. Monroeville, 409 U.S. 57 (1972); Gibson v. Berryhill, 411 U.S. 564 (1973). See also, In re Murchison, 349 U.S. 133 (1955); Aetna Life Insurance v. Lavoie, 475 U.S. 813 (1986); Liljerberg v. Health Services Corp., 486 U.S. 847 (1988).



People say that there would be no judges to hear child support cases. Too bad. Then they either go to a civil law system like you mentioned in your article, or empanel a citizen-review board made up of professionals (e.g., economics experts, vocational experts, psychologists, maybe a lawyer or two, and whomever else would be necessary to determine economic viability of a person).



Bruce Eden, Civil Rights Director

DADS (Dads Against Discrimination)--New Jersey & New York Chapters

Wayne, New Jersey 07474

b_edenATverizonDOTnet

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With regard to child support and alimony cases, states receive federal funding for the awarding, collection and enforcement of child support and alimony. Pursuant to Title IV-D of the Social Security Act (which I despise because SS was supposed to be only for disability and retirement), Title 42 USC Section 658(a) is called the federal incentive reimbursement funding. What occurs here is that the feds give the states 90 cents for every dollar of child support awarded, collected and enforced upon. At the beginning of every fiscal year, billions are allotted to all 50 states based on each state's child support collections numbers. This federal funding is given to the states with "no strings attached". The states put this money into the general treasury (and not for child support). The first items paid out of any state general treasury are state employee pension plans and salaries and judicial pension plans and salaries.Herein lies the conflict of interest and the unconstitutionality of the use of contempt. Judges are sitting on child support-alimony cases where they have a financial interest in the outcome of such cases (e.g., pension increases, salary increases, bonuses, etc.). Therefore, they are tempted to use their unbridled contempt powers to threaten or actually jail people to extract/extort more and more child support-alimony out of them to increase collections and enforcement. The more collected and enforced, the more reported to the feds to get more reimbursement incentive funding. The vicious cycle.However, the United States Supreme Court has repeatedly held that judges who sit in judgment of such cases where they have a financial interest in the outcome of such cases is constitutionally unacceptable, and must disqualify themselves from those cases. See, Tumey v. Ohio, 273 U.S. 510 (1927); Ward v. Monroeville, 409 U.S. 57 (1972); Gibson v. Berryhill, 411 U.S. 564 (1973). See also, In re Murchison, 349 U.S. 133 (1955); Aetna Life Insurance v. Lavoie, 475 U.S. 813 (1986); Liljerberg v. Health Services Corp., 486 U.S. 847 (1988).People say that there would be no judges to hear child support cases. Too bad. Then they either go to a civil law system like you mentioned in your article, or empanel a citizen-review board made up of professionals (e.g., economics experts, vocational experts, psychologists, maybe a lawyer or two, and whomever else would be necessary to determine economic viability of a person).Bruce Eden, Civil Rights DirectorDADS (Dads Against Discrimination)--New Jersey & New York ChaptersWayne, New Jersey 07474b_edenATverizonDOTnet Printer Friendly Wendy McElroy - Friday 15 August 2008 - 04:00:00 - Permalink Your article "Return of Debtor's Prison?"was outstanding. I had written a treatise on this (Contempt of Court--Arbitrary Excess of Power) several years ago, and it can be found at my website One of the critical issues with civil contempt is that it now has a standard of proof of clear and convincing evidence. This is higher than the civil standard of preponderance of the evidence, but lower than the criminal standard of beyond reaonable doubt. Clear and convincing evidence requires much more than a judge's say-so. Now, it requires a full-scale investigatory matter requiring a trial by jury, or at least the right to appointed, competent, effective counsel (I've had situations where real estate and patent lawyers were appointed to people facing contempt and jail time, when they needed an attorney knowledgeable in constitutional law, criminal law and family law). Given that 49 out of 50 states (NH is the only one that doesn't) now require appointment of counsel for indigent parents in child support enforcement cases, there is no difference in civil contempt and enforcing a child support order. In fact, child support orders have been declared as judgment debts on the date they are due by every state. Child support has been defined as a "civil" debt and not a "special kind of debt" by all of the the Federal Courts of Appeals that have had these cases before them on interstate criminal matters.The issue is not whether the matter turns on the "civil" or "criminal" aspect of the case, but whether it deprives a person of liberty. If it does, according to most states' caselaw, statutory law and constitutions, then there can be no imprisonment without full criminal due process, e.g., right to trial by jury, right to appointed competent, effective counsel, right to present evidence, witnesses and testimony, right to an ability to pay hearing, etc.). In the Chadwick case, the PA courts are out-of-bounds with their ruling. This is because it has gone past the remedial and is now past the punitive. The theoretical ability to be jailed for the rest of one's life without any due process has been brought to fruition by this case.