legal standards for imprisoning child-support debtors

The U.S. Supreme Court’s Turner v. Rogers (2011) decision established due-process safeguards for proceedings threatening unrepresented child-support debtors with incarceration. A key element of those safeguards is an explicit, simple determination that the child-support debtor is presently able to pay.  Turner v. Rogers formally declared procedural conditions.  U.S. v. Ballek (1999) addressed substantial reasons for incarcerating child-support debtors.  Procedural and substantial issues in imprisoning child-support debtors are closely related.  Despite its formal scope, Turner v. Rogers provides higher, better, more recent reasoning relevant to substantive grounds for incarcerating child-support debtors.

The U.S. Court of Appeals, Ninth Circuit, issued the decision in Ballek.  An Assistant Federal Public Defender brought Jeffrey Ballek’s case against the United States government, represented in the person of an Assistant United States Attorney.  Child support is an off-budget, twenty-seven-billion-dollar, tax-and-transfer program that provides more benefits to adults associated with other adults who have more money.  One could hardly imagine a more attractive program to politicians than such “child support.”  One man’s liberty interest against a large, politically appealing program is a set up for a mugging, even in a court of law, and even with an Assistant Federal Public Defender there to square off against the Assistant United States Attorney.  The Ninth Circuit’s opinion in Ballek reads as if Ballek’s side was pummeled into silence before it could deliver key understanding to the court.

The Ballek opinion fails to recognize basic aspects of child support. The Ninth Circuit grasped for self-evident observations:

We start with the self-evident observation that the relationship between parent and child is much more than the ordinary relationship between debtor and creditor.

The reference to parent is nicely sentimental, but divorced from knowledge.  Child support, when imposed on men, is legally based on no action other than having sex, or, alternatively, being married.  In California in March, 2000, 71% of child support obligors with arrears had at least one child support order established by default judgment.[1]  When child-support obligations are established by default judgment, the obligor isn’t even aware of the obligation.  The ordinary relationship between debtor and creditor typically is longer than a one-night stand.  Moreover, the debtor actually knows of the obligation and explicitly agrees to it.

Child-support orders are highly disproportionately imposed on men, and so too is imprisonment. The Ninth Circuit judges’ lack of interest in sex continued through their consideration of debt imprisonment and forced employment:

Imprisoning someone for failure to pay a debt can run afoul of the Thirteenth Amendment.  See, e.g., Pollock v. Williams, 322 U.S. 4, 64 S.Ct. 792, 88 L.Ed. 1095 (1944).  However, not all forced employment is constitutionally prohibited.  Where the obligation is one that has traditionally been enforced by means of imprisonment, the constitutional prohibition does not apply.  See, e.g., Robertson v. Baldwin, 165 U.S. 275, 287-88, 17 S.Ct. 326, 41 L.Ed. 715 (1897) (imprisonment for sailors who desert their ships);  Arver v. United States, 245 U.S. 366, 390, 38 S.Ct. 159, 62 L.Ed. 349 (1918) (imprisonment for refusal to perform military service);  Butler v. Perry, 240 U.S. 328, 332-33, 36 S.Ct. 258, 60 L.Ed. 672 (1916) (imprisonment for failure to do roadwork).

These traditional forms of forced employment all concern forced employment of men.  A fundamentally sex-biased interpretation of the Thirteenth Amendment should be overruled even sooner than sexist selective service registration is.

The Ninth Circuit described imprisoning persons for not providing money to a custodial parent as one of the most important exercises of state police power.  That understanding shaped the Court’s interpretation of the Thirteenth Amendment:

We decline to interpret the Thirteenth Amendment in a way that would so drastically interfere with one of the most important and sensitive exercises of the police power – ensuring that persons too young to take care of themselves can count on both their parents for material support.

While two-breadwinners per child might be imagined as an ideal, that ideal has little relation to current or historical reality.  Many families have only one income earner as a result of family caretaking choices or the death of a spouse.  About 40% of persons providing financial child support as a non-custodial parent are married to another person.[3]  Thus the two-breadwinners per child ideal would require extensive double-counting across households.  Most importantly, imprisoning a person can drastically interfere with that person’s ability to provide material and non-material support for the custodian of a child, or children under the imprisoned person’s own custody. Australia, Austria, and Finland do not allow the imprisonment of child-support debtors.  In Denmark, such imprisonment never occurs, and in France, it’s very rare.[4]  Describing imprisoning child-support debtors as “one of the most important and sensitive exercises of the police power” is absurd.  U.S. government officials and the public have had, until recently, little knowledge of the actual extent of such incarceration.[5]

From an economic perspective, child-support prices function much differently from prices in labor and financial markets.  Child-support orders do not respond automatically, quickly, or rationally to changes in economic circumstances.  Child-support orders administratively fix substantial nominal payments for up to twenty-one years into the future.  In response to an adverse economic shock such as loss of a job or imprisonment, a child-support obligor must seek a court order to have the child-support order changed to reflect the changed economic circumstances.  Even if a court recognizes the changed economic circumstances, the court is prohibited under the Bradley Amendment from retroactively changing the child-support obligation to recognize the actual date of the changed economic circumstances. Apparently oblivious to these economic and procedural realities, the Ninth Circuit in Ballek stated:

In making such an award, the state courts take into account a variety of factors, including the non-custodial parent’s other obligations and his ability to pay child support;  if circumstances change, the obligor can return to court and seek to have the amount reduced.  See Alaska Stat. § 25.24.170 (Michie 1998);  Curley v. Curley, 588 P.2d 289, 291 n. 2 (Alaska 1979).

Given this means-testing, which is an integral aspect of every child support award, a non-custodial parent should never be confronted with a situation where he is ordered to make child support payments he cannot afford.  A non-custodial parent who does not have the funds to satisfy the child support award, and who does not obtain a reduction or remission of the award because of inability to pay, will almost certainly be engaged in willful defiance of the state court’s child support order.[2]

If such a process of administratively adjusting nominal economic values could work well, the Soviet Union would never have collapsed.  Soviet planners, moreover, were not legally prevented from making true-ups to account for administrative lags relative to dynamic, decentralized economic change.

The best explanation for the Ninth Circuit’s decision in Ballek is that it didn’t hear a strong case.  The Court’s opinion merely ratified powerful political and economic interests in the status quo.  Law can do better than that.  Turner v. Rogers is a good start.

*  *  *  *  *

The Ballek decision: United States v. Ballek, 170 F.3d 871 (9th Cir.), cert. denied, 528 U.S. 853 (1999), argued before Circuit Judges Aldisert, Wallace and Kozinski, opinion from Kozinski.

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[1] See Elaine Sorensen, Heather Koball, Kate Pomper, and Chava Zibman, “Examining Child Support Arrears in California: The Collectibility Study,” March 2003. Urban Institute, Prepared for the California Dept. of Child Support Services. See p. 118.

[2] The use of the term “means-testing” here is unusual.  Means testing is usually associated with the conferral of benefits.

[3] See U.S. Census Bureau, Support Providers: 2005, Table 3.

[4] See p. 43, Table 8, in Skinner, Christine, and Jacqueline Davidson (2009).  “Recent Trends in Child Maintenance Schemes in 14 Countries,” International Journal of Law, Policy, and the Family 23, pp. 25-52.

[5] Jeffrey Ballek was sentenced to six months imprisonment for his child-support debt.  The Ballek decision noted that child-support awards are “routinely enforced by imprisonment.”  Actual data on persons incarcerated for child-support debt are highly fragmentary.

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