Surprise! ‘Safeguards’ for Indigent Debtors Ignored by Courts

August 14, 2014 by Robert Franklin, Esq.

I’ve often criticized the U.S. Supreme Court’s decision in Turner vs. Rogers, the case that held that indigent defendants in child support arrearage cases have no right to a state-appointed attorney when the state is not the opposing party. I’ve done so for several reasons but mostly because the majority, headed by Justice Breyer, engaged in outright fantasy about what “procedural safeguards” a court could put in place that would take the place of a lawyer to represent the defendant facing prison.

[A]s the Solicitor General points out, there is available a set of "substitute procedural safeguards," Mathews, 424 U. S., at 335, which, if employed together, can significantly reduce the risk of an erroneous deprivation of liberty. They can do so, moreover, without incurring some of the drawbacks inherent in recognizing an automatic right to counsel. Those safeguards include (1) notice to the de-fendant that his "ability to pay" is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.

Just how those “safeguards” are supposed to safeguard the defendant from being sent to jail for non-payment is anyone’s guess. Of course the requirement of notice is a basic part of due process of law and as such probably provided by states already. But the other three seem all but pointless. Numbers 2 and 3 are very much alike. They both ask the defendant to give the court information, one in writing and the other orally. My guess is that most defendants know to tell the judge they don’t have the money if they don’t. The problem doesn’t come in their conveying that message, but in conveying it to the satisfaction of the court. It takes more than the defendant’s say-so, either in court or on a form, to convince a judge he’s unable to pay. He’s required to bring in a great deal of documentation to the effect that (a) he doesn’t have a job (b) he’s diligently looked for a job, (c) he doesn’t have any money in any bank, (d) he doesn’t have any assets that can be sold, etc.

One of the main reasons indigent people go to jail for child support debt even though they’re unable to pay is that they’re often uneducated and unable to assemble the type of evidence that will satisfy a judge whose first, last and middle tendencies are to jail the man. In the same vein, most of these fathers aren’t in court every day. They may have been there before, but that doesn’t mean they understand what it takes to prove their case of inability to pay. Like as not, it means the opposite. Indeed, in the Turner case itself, here’s what the defendant had to say for himself.

"Well, when I first got out, I got back on dope. I done meth, smoked pot and everything else, and I paid a little bit here and there. And, when I finally did get to working, I broke my back, back in September. I filed for disability and SSI. And, I didn't get straightened out off the dope until I broke my back and laid up for two months. And, now I'm off the dope and everything. I just hope that you give me a chance. I don't know what else to say. I mean, I know I done wrong, and I should have been paying and helping her, and I'm sorry. I mean, dope had a hold to me."

To put it mildly, Turner doesn’t sound like the type of person we can reasonably expect to be able to competently defend himself, understand how to produce the necessary evidence, be aware of his various legal alternatives, preserve whatever judicial errors may occur for appeal, etc. What he does sound like is exactly the type of man those courts see many times every day, i.e. exactly the type of man who needs a lawyer but can’t afford one.

By contrast, lawyers do practice in court every day. They do understand what it takes to convince a judge of indigence and what evidence is required to prove an inability to pay. The father may appear in court a couple of times in his life. The lawyer’s there every day.

As to “procedural safeguard” No. 4, its entire purpose is to preserve that issue for appeal. Without an express finding of an ability to pay, the issue can’t be reviewed by an appellate court. So how many of these guys can afford an appellate lawyer and an appeal? Turner couldn’t afford to pay his ex $57 a month, a fact that seems to answer the question.

So how are those “procedural safeguards” working out in practice? This article has some insights into the matter (Cleveland.com, 8/5/14).

Many local judges around Ohio have been found to have illegally jailed people too poor to pay fines or court costs. But even when they're caught, they don't often face punishment. So-called "debtors' prisons" have been found in several counties around Ohio, even though it's prohibited under the Ohio Constitution and a U.S. Supreme Court ruling. Some people who’ve been jailed are suing the judges, which strikes me as a quixotic gesture, given that judges enjoy almost complete immunity from suit for actions taken on the bench. But the plaintiffs’ attorney, John Gold, gets to the heart of the matter. “We’re sort of getting to the end of our rope here,” Gold said in an interview. "There just doesn't seem to be any kind of law on the books to provide them with relief and to hold judges accountable."

The usual way to correct a judge’s error is by appeal to a higher court. But of course that’s generally out of the question, as I suggested above, when the defendant doesn’t have a lawyer or the money to hire one. So he goes to jail, does his time, gets out and finds he’s further behind in his payments than ever and has even less chance of getting a job and catching up.

Then there’s the possibility of filing a grievance against the judge with the state bar association, but again, which of these defendants has the money to do that and which would do so even if he did. I mean, how angry do you want the judge, who has the power to jail you, to be?

But the main question is “Where are all those procedural safeguards the Supreme Court told us three plus years ago would ensure that this sort of thing wouldn’t be a problem?” Answer: they either don’t exist or they’re insufficient to do the job. Is Justice Breyer listening? Somehow I doubt it.

Just last year, the American Civil Liberties Union of Ohio issued findings that judges routinely jail indigent parents despite their inability to pay. Here’s an article about that (Cleveland.com, 4/4/13).

The American Civil Liberties Union of Ohio has called on the Ohio Supreme Court to end “debtors’ prisons,” where indigent people are unlawfully jailed because they cannot pay court fines… On Thursday, the ACLU released the results of its investigation that found seven courts across Ohio, including Parma Municipal Court, had disregarded the rights of indigent defendants, said Mike Brickner, director of communications and public policy for ACLU of Ohio. The organization said the courts were not holding the required hearings to determine whether a person was indigent and that people who are indigent cannot legally be jailed for failure to pay their fines… In a letter to the judges of Parma Municipal Court, the ACLU said that “defendants have repeatedly been committed to jail in a process that flouts the requirements of the (Ohio) statute and the Constitutions.” The letter said that based on the court’s docket and data released through public-records requests “reveal that debtor’s prisons practices in Parma are widespread.”

Indeed, the finding of commonplace wrongdoing by courts in seven Ohio counties was limited only because the ACLU itself didn’t have the funds to investigate more widely.

The realities of life for uneducated men who’ve lost jobs and fallen behind on child support payments is nothing like Stephen Breyer believes it to be. His is a world of concerned judges, orderly procedures and defendants who are able to take up their own causes. The reality is judges who are perfectly happy to ignore all those “procedural safeguards” that, even if they were in place likely would have no effect on an indigent man’s chances of going to jail. The reality further is that those judges don’t have safeguards in place because federal law ensures states are paid for every dollar of child support they bring in. And having ignored those “safeguards,” judges rest secure in the knowledge that, even if they have jailed men who are unable to pay, there will be no consequences – to them at least.

The fathers, the kids and the moms? That’s a different story, one that Stephen Breyer never read.

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