WASHINGTON, DC (June 20, 2011) – Today the Supreme Court reaffirmed that freedom “from bodily restraint,” lies “at the core of the liberty protected by the Due Process Clause.” In Turner v. Rogers, No. 10-10, a 5-4 majority held that the State of South Carolina violated a non-custodial parent’s right to due process of law by sentencing him to a year in jail without a reliable procedure for determining whether he had the ability to pay back child support or providing him with counsel to help him prove his case.
Pro bono counsel for Michael Turner, who was jailed for 12 months because of his inability to pay child support while he was unemployed, hailed the decision. Greenville, S.C., attorney Derek Enderlin said, “We are excited about the win and believe that in the long run this will benefit children more than anyone.” Enderlin is a member of the National Association of Criminal Defense Lawyers (NACDL), which filed amicus curiae, or friend-of-the-court, briefs in support of Mr. Turner in the South Carolina Supreme Court and the U.S. Supreme Court. Joining NACDL in the U.S. Supreme Court brief were the Brennan Center for Justice, the National Legal Aid and Defender Association, the Southern Center for Human Rights, and the American Civil Liberties Union. NACDL’s briefs are here (U.S. Supreme Court), and here (S.C. Supreme Court).
Counsel for an indigent noncustodial parent facing jail time helps to assure accurate decisionmaking in respect to whether the respondent actually has the ability to pay the back child support – it is the ability to pay that distinguishes civil and criminal contempt, the Court said. An incorrect decision (wrongly classifying the contempt proceeding as civil) can increase the risk of wrongful incarceration by depriving the defendant of the procedural protections (including counsel) that the Constitution would demand in a criminal proceeding.
The Court, citing an Urban Institute report, noted that since 70 percent of child support arrears nationwide are owed by parents with either no reported income or income of $10,000 per year or less, the issue of ability to pay may arise fairly often.
Incarcerating a parent who is temporarily unable to pay back child support not only deprives the parent of due process, but harms the system itself by depriving the parent of the ability to continue to seek employment.
“Ultimately, the best interests of the child are not be served by a rule of law permitting the unrestrained incarceration of non-custodial parents,” said NACDL’s Director of Institutional Development and Policy Counsel Malia N. Brink. “In today’s economy in particular, it should not be surprising that many such parents find themselves unable to keep up with support payments.”
As NACDL and its partners argued in their friend-of-the-court brief, wrongfully jailing a noncustodial parent who simply cannot pay serves no purpose and can cause serious, harmful consequences for the parent and family. There is substantial evidence that the presence of a lawyer to help sort out the facts helps to ensure that only those persons who willfully refuse to pay child support will be incarcerated.
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