In South Carlina in late 1995, Michael D. Turner had consensual sex of reproductive type with Rebecca L. Price. He was 18 years old; she, 16 years old. They were not married, nor did they have any other legal relational status. In 2003, a South Carolina court set a weekly sum that it ordered Turner to pay to Price, who by that time had married another man whose last name was Rogers.[1] Without another court order, Turner was required to pay this sum weekly until the year 2014.
Marriage or other legal relational status is irrelevant to these payments. Under South Carolina law and the law of every other U.S. state, a man need not take any action other than having sex of reproductive type to be subject to at least eighteen years of state-determined weekly payments to a woman or to the state.[2] Such payments legally regulate sexuality, including legally imposing unplanned parenthood on men. State laws and state agencies that collect these payments call them “child support payments.” They might more accurately be called “sex payments.”[3] In the U.S. in 2007, 4.9 million parents received such payments. Those payments totaled $24.9 billion.[4]
Since 2003, Turner has been jailed six times for failing to make his court-ordered sex payments. In 2004, he was jailed once for a day, and eight months later, for two days. About a year later, he was incarcerated for about four and half months. In 2008, he was jailed for about eight months. In 2009, he was jailed for three months. In 2010, he was again jailed. Turner is scheduled to appear on May 4, 2011, once again in civil court for sex-payment arrears. He is likely then to be jailed a seventh time for sex-payment debt.[5] At his civil contempt hearing in April, 2009, Turner explained to the court why he couldn’t make his sex payments:
I just got out [of jail] – I done a year ’07 to ’08, got out for like four months. I’ve tried to find a job. I, honest to God, have tried this time. There’s no work out there hardly for carpenters. I couldn’t find anything, so I been putting in applications in grocery stores, you name it. I’ve got in applications. I have tried. I’ve honestly tried this time. That’s all I can say. I can’t find no work [6]
Spells of imprisonment hurts persons’ subsequent ability to get a job and earn income legally. Moreover, under typical state law, sex payments continue to accumulate, with interest (12% in South Carolina), while the sex-payment debtor is imprisoned for non-payment. Hence, once imprisonment spells reach several months, serial imprisonment for sex-payment debt isn’t surprising.[7]
Only fragmentary data are available on the national magnitude of imprisonment for sex-payment debt. The child-support literature is primarily concerned with how to establish biological paternity and increase child-support revenue collection. Little systematically collected data considers penalties imposed on sex-payment debtors (“parents with child support arrears”).[8] Because 91% of sex-payment orders (“child support orders”) have arrears due and sex-payment debtors with gross annual income of $10,000 or less account for 70% of total arrears, imposition of penalties for sex-payment debt undoubtedly are common.[9] All U.S. states have laws providing for imprisonment for non-payment of sex payments.[10] Actual imprisonment for sex-payment debt has been observed in many states.[11] However, the structure of the U.S. public sphere generates little public concern about the U.S. level of imprisonment (which is extremely high relative to other high-income countries), encourages hostility to sex-payment debtors as persons who don’t support their children, and fosters fear of the demographic and fiscal implications of heterosexual male sexual freedom. The extent of imprisonment for sex-payment debt isn’t a commonly discussed public issue.[12]
Across the U.S. on an average day, roughly 50,000 persons are in jail or in prison for sex-payment debt. Sex-payment debtors spend shorter spells in (local) jails and longer spells in (state) prisons. Sex-payment debtors can be imprisoned for civil contempt orders and on criminal sentences for sex payment debt. They can also be in jail as a result of pre-hearing arrests. With bench warrants often issued routinely for failure to appear at a child-support hearing, pre-hearing imprisonment is likely to be substantial. Persons who are subject to a child-support arrest warrant or in jail under a child-support contempt order can also be in jail concurrently for other charges. Case counts and imprisonment orders, which are a flow concept, translate into the average number of persons in jail, which is a stock concept, with considerable uncertainty. Available data are complex and inconsistent, even when provided from official sources and in legal proceedings. Given available data, I consider the best estimates to be 40,000 persons in jail for sex-payment debt and 10,000 persons in prison for sex-payment debt. These estimates have considerable margins of error.[13] The actual total number might plausibly be between 25,000 and 90,000. But that more than fifteen thousand persons are in jail or in prison every day across the U.S. for sex-payment debts cannot be reasonably doubted.
On March 23, 2011, the U.S. Supreme Court will hear arguments about whether Michael Turner had a right to appointed counsel as an indigent defendant in the sex-payment court hearing that resulted in his imprisonment for about eight months for sex-payment debt (“child support arrears”). Many important representatives and organizations have filed friend-of-the-court (amicus) briefs with much interesting factual material. The underlying legal and policy issues are huge.
I predict that the Supreme Court will find that it lacks jurisdiction to review the matter.
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Read more:
Case filings for Turner v. Rogers, U.S. Supreme Court Docket 10-10
Supporting data: national estimate of sex-payment imprisonment (Excel version); analysis of Patterson’s survey data on child-support detainees in South Carolina (Excel version).
D’Arcy L McGreer’s personal account of being jailed multiple times for child support arrears
Notes:
[1] See Brief of Respondents, p. 8. Turner and Price drifted apart soon after Price gave birth to a child in July, 1996. Id. A civil judgment in an Oconee County, SC, court on May 21, 2003 has as one party Rebecca L. Rogers. That indicates that Price had married and adopted a new surname by that date. As noted above, marriage is irrelevant under the relevant law. In 49% of payment cases with arrears, the parties were never married. See Understanding Child Support Debt, p. 18.
Update: Ages at relevant sexual intercourse previously described above as “He was about 19 years old; she, about 17.” Respondents Brief on Petition for Cert., p. 6, states: “Petitioner Michael Turner fathered B.L.P., the daughter of respondent Rebecca L. Rogers (née Price), in 1995, when petitioner was 18 and Rogers was 16.” The context makes clear that “fathered” means Turner had sex of reproductive type and subsequent choices of Price and the state led to a child’s birth and child-support payments being imposed on Turner. Here’s some analysis of differences between having sex and fathering.
[2] Cases exist in which men have been statutorily raped and still compelled to make sex payments. See Higdon (2011).
[3] A rational public system for equitably providing financial support to needy children would be much different from what currently is called the child-support system. The size of child support/sex payments depends primarily on the incomes of the persons who had the relevant reproductive-type sex, not on the child’s needs or needs for funding a system to provide equitable support for needy children. The recipient of the payments has no legal obligation to spend the payment on a child, or a needy child. No accounting for the spending of the payments is required under law. Freely given love and personal attention to a child are crucial child support much different in kind from periodic financial payments.
[4] For the number of persons receiving payments, see Census Bureau, Child Support: 2007, Detailed Table 4. For the total amount of payments, see U.S. Office of Child Support Enforcement, FY 2008 Annual Report, Table 1.
[5] Brief for Respondents, Appendices, Turner booking records, pp. 8a-13a. Id. apparently does not include a booking record for Turner’s sex-payment incarceration in 2010. Reply Brief of Petitioner, p. 3, n. 1.
[6] Quoted in Brief of Petitioner, p. 14.
[7] In 21 states of the U.S., being incarcerated is no reason for requesting a reduction in a sex-payment orders. In 11 other states, incarcerated is one factor that would be considered. See Pearson (2004) p. 6. Statutorily set interest rates on sex-payment debt were about 10% across U.S. states circa 2000. In some states additional penalty rates apply for non-payment, e.g. 6% penalty rate in Massachusetts in 2000. See Thoennes (2002). After being jailed five times for sex-payment arrears, Turner took up drug dealing to earn money. He was arrested for drug dealing in 2010 and jailed for three days. Brief for Respondents, Appendices, pp. 14a-55a.
[8] The public literature contain little such data. See May and Roulet (2005) p. 9. Moreover, state justice systems and child support enforcement administrators do not collect such data for their own analysis of their programs. See Amicus Brief of Senators Demint, Graham, Johanns and Rubio in Support of Respondents, Appendix, Compendium of Responses Collected by the U.S. Department of Health and Human Services Office of Child Support Enforcement (December 28, 2010), pp. 1a-14a.
[9] On cases with orders established and cases with arrears due, see U.S. Office of Child Support Enforcement, FY 2008 Annual Report, Table 55 and Table 73 (FY 2008 data). On debt/income shares, see Understanding Child Support Debt, p. 5.
[10] For the relevant laws, see Sussman and Mather (2003). For example, in Missouri, non-support is a Class A Misdemeanor with maximum penalty of 1 year imprisonment and/or $1,000. With elements “(1) fails to pay in 6 out of 12 months or (2) arrears of $5,000 or more”, it’s a Class D Felony with maximum penalty of 5 years imprisonment and/or $5,000. In fiscal year 2010, Missouri filed at least 6,291 such sex-debt felony charges and at least 3,267 misdemeanor sex-debt charges. See Missouri data here. Australia, Austria, and Finland are countries that do not authorize imprisonment for sex-payment debt. In Denmark, such imprisonment never occurs in practice, and in France, it’s very uncommon. See Skinner and Davidson (2009) p. 43, Table 8. In Alberta, Canada, imprisonment for sex-payment debt has risen sharply since 1999. See Millar (2010), p. 155, Fig. 1.
[11] See May and Roulet (2005) pp. 13-38.
[12] The best scholarly analysis of the issue is Patterson (2008). See also ACLU (2010). Patterson’s survey data on child-support detainees in South Carolina is by far the best quality data on the number of such detainees. The data for 2009 appear in Amicus Brief for Elizabeth G. Patterson and the South Carolina Appleseed Legal Justice Center in Support of Petitioner, p. 26. The data for 2005 and 2009 are cited as “on file with author” in Patterson (2008) p. 117, n. 156. I requested that data for analysis. Patterson, with admirable scholarly ethics, provided it. For my analysis of the data, see South Carolina child support detainees.
[13] The average number of persons in jail or in prison for sex-payments debts is not the same as the number of persons in jail or in prison who have sex-payment debts. Since sex-payments obligations accumulate, with interest, even when the obligor is incarcerated, the latter figure is much higher than the former. Because jail stays average about 25 days, the average number of persons in jail across a year is much smaller than the average number of admissions to jail in a year. Here’s data and analysis on jail admissions. The above estimates are for prisoners who would be in jail or in prison for sex-payment debt even if they weren’t also being held for other charges for which the prisoner is being held concurrently.
References:
American Civil Liberties Union (ACLU) (2010, October). In for a Penny: The Rise of America’s New Debtors’ Prisons.
Census Bureau, U.S., Child Support: 2007; Custodial Mothers and Fathers and their Child Support: 2007 [P60-237], and supporting detailed tables.
Department of Health & Human Services, U.S., Office of Child Support Enforcement. Child Support Enforcement FY 2008 Annual Report to Congress.
Department of Health & Human Services, U.S., Office of Child Support Enforcement. Understanding Child Support Debt: A Guide to Exploring Child Support Debt in Your State, May, 2004.
Higdon, Michael J., Fatherhood by Conscription: Nonconsensual Insemination and the Duty of Child Support (February 14, 2011). University of Tennessee Legal Studies Research Paper No. 139. Available at SSRN: http://ssrn.com/abstract=1761333
May, Rebecca and Marguerite Roulet (2005, January). Center for Family Policy and Practice. A Look at Arrests of Low-Income Fathers for Child Support Nonpayment: Enforcement, Court and Program Practices.
Millar, Paul (2010). “Punishing Our Way Out of Poverty: The Prosecution of Child-Support Debt in Alberta, Canada.” Canadian Journal of Law and Society, v. 25, n. 2, pp. 149-165.
Patterson, Elizabeth G. (2008). “Civil Contempt and the Indigent Child Support Obligor: The Silent Return of Debtor’s Prison.” Cornell Journal of Law and Public Policy, v. 18, pp. 95-141.
Pearson, Jessica (2004). “Building Debt While Doing Time: Child Support and Incarceration.” American Bar Association’s Judges’ Journal, v. 43, n. 1, pp. 5-12.
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.
Sussman, Scott, and Corey Mather (2003). Center for Family Policy and Practice. Criminal Statutes for Non-Payment of Child Support.
Thoennes, Nancy (2002, May). Child Support Profile: Massachusetts Incarcerated and Paroled Parents. Center for Policy Research, Denver CO.
