Outside of Soc scope. Could you comment anyway?

[highlonesome]

I just saw this at Cnn.com and I was wondering if Soc could comment on how this precedent relates to CS enforcement.  I know it's outside the scope of how you answer questions here, but could you make an exception?

http://www.cnn.com/2004/LAW/08/12/debtors.jail.ap/index.html

MEMPHIS, Tennessee (AP) -- County officials agreed to stop running what amounts to what some say is a debtors' prison, after two men sued claiming they were arrested or threatened with arrest over debts that can only be collected through civil court proceedings.

The agreement in federal court Wednesday by Lauderdale County officials stems from a lawsuit by Lester C. Smith and William M. Robinson. The county's general sessions court had issued arrest warrants for Smith and Robinson for failure to pay $200 each in court costs from unrelated misdemeanor cases.

Under state law, court costs are civil debts for which a debtor cannot be jailed. Federal Judge J. Daniel Breen said such arrests violate the 13th Amendment ban on slavery and involuntary servitude.

Robert Hutton, the lawyer who filed the lawsuit, said the county routinely used the threat of jail to get money from people too poor to pay civil judgments.

"They're suit-proof," Hutton said. "They can't garnish your paycheck, but if I'm going to throw you in jail until you pay it, you're going to find a way to get that money even if you have to go without food."

Defense lawyer Kemper Durand said county officials failed to realize their debt collecting was improper until the suit was filed. "They immediately sought to correct the problem," he said.

Smith and Robinson were awarded damages of $1,000 each, but the main purpose of the lawsuit, Hutton said, was to force the county to end its practice of jailing people because of civil debts.

The county was ordered to dismiss any outstanding arrest warrants over unpaid court costs. "They've got warrants out back to '97," Hutton said.

[socrateaser]

This is one of my hot buttons.

The short answer is that this case to which you refer will have no effect on child support enforcement in the U.S. And the reason for this is, well, er um..."because."

...because courts uniformly refuse to hold that a jail sentence for contempt of paying child support violates the 13th Amendment to the U.S. Constitution (even though every historical and legally logical argument results in a demonstration that it absolutely does).

This is the type of legal conundrum that causes the layperson to hate lawyers, courts and the law itself, because, regardless of which side of the issue you are on, it appears that a court that requires a political rather than a judicial solution to a legal problem, will simply "engineer" a decision to resolve the political problem.

As background, the legal definition of involuntary servitude is "Laboring on behalf of another at the threat of phyisical force or legal coercion, except as the result of having first been convicted of a crime." U.S. v. Kozminski.

It requires no law degree to see very quickly that a court order to pay child support, for all but the wealthiest members of society, means an order to "labor" to pay child support. And, as this labor is ordered at the threat of jail or other legal coercion, and before being convicted of a crime, it certainly appears that such a court order EXACTLY satisfies the U.S. Supreme Court's precise definition.

But, even the Supreme Court refuses to uphold its decision in this area.

There are three preminent modern legal decisions on the issue of whether imprisonment for failure to pay child support violates the 13th Amendment prohibition against slavery and involuntary servitude: Moss v. Superior Court of CA, Ballek v. U.S., and Hicks v. Feiock

In Moss, the CA Supreme Court ruled essentially, that although imprisonment for failure to pay child support would otherwise violate the 13th Amendment, the fact that every State in the U.S. and the Federal government, has a statute that permits imprisonment for failure to pay support, that this has the same "effect" as if there were an actual constitutional amendment permitting such imprisonment, and therefore, that such imprisonment is acceptable.

From a legal perspective, that sort of legal logic is bizzare, but hey, I'm just reporting the news here.

In Ballek v. U.S. the 9th Circuit Court of Appeals ruled (paraphrasing): "we decline the invitation to rule that imprisonment for failure to pay child support violates the 13th Amendment, because it would make enforcement of child support statutes much more difficult in the U.S."

And, that's not a legal decision, unless you are a court in the People's Republic of China.

And in Hicks v. Feiock, the U.S. Supreme Court ruled that Hicks, who was found guilty of contempt for failing to pay support, was entitled to a reasonable doubt burden of proof in his contempt hearing, because he was being charged with criminal contempt, and that criminal contempt means, that a person cannot purge their contempt, but rather that a punishment will be assigned regardless of what the defendant does.

The court then sent the case back to the appellate court, where Hicks was quickly found guilty beyond a reasonable doubt, and ordered jailed.

Nuff said? I think so.

From my perspective, the proper legal method of dealing with all of this is to recognize, that as important as paying child support is, that throwing people in jail for refusing to pay is not the answer to the problem of getting people to pay.

Rather, the solution is to tell parents that they are both responsible for actual support, i.e., to be their for your child, and directly provide comfort, guidance and assistance, and THEN, if a parent fails to do those things, that parent should be charged with a crime already on the books (child abandonment) and then if convicted, the court can LEGALLY impose a requirement to labor to pay support, because, of course, the 13th Amendment does not protect people who are actually convicted of a crime.

The argument against this is that once a person is convicted of a crime, that person's ability to find gainful employment sinks through the Earth like a nuclear meltdown, but all things being equal, people who absolutely will not raise their kids don't deserve a decent job anyway, so who really cares at that point.

Anyway, the above is just my little fantasy that the courts of the U.S. and its several states might someday actually act with the kind of precision that we the people deserve, but the courts will never do so, and so I extend to you the following, easy to follow, advice concerning your legal child support obligation, which also summarizes the entire body of legal scholarship on the subject:

"Pay up, or go to jail."

[Peanutsdad]

Soc, typically, I dont reply on your board out of respect. But this is a ropic that " is one of my hot buttons", as you say.


IF I'm following the legal arguement right here, essentially the courts refuse to rule on the issue because it would quickly become legally and officially apparent that the system of law could NOT support the current system of cs enforcement. Correct? Hmmm, sounds like the bad old days of segregation laws.


BUT, to legally support the current system of enforcement, all thats needed to remove the sour taste of the unconstitutional laws,,, is to add a component of convicting a person of a crime PRIOR to jailing them for nonpayment. Right?


If so,, if it's really that easy to remove the debate,,, why on earth havent they??

[socrateaser]

Well, let's see...first, there's no real debate. The only people who are interested in discussing this sort of thing are those who frequent online support resources like this. The average person who's paying and/or receiving support doesn't even contemplate why the law is how it is -- they just do what the court says -- or they don't and if they're tossed in jail at some point, they just go, because they think that the system is legal -- which it is.

A law is constitutional until a court rules that it isn't. And, as the courts have uniformly ruled that the law is constitutional, there really is no public controversy. Any argument on the subject is purely academic.

Second, let's do a hypothetical about what could happen if the law was changed:

1. Parents seeking the court's ruling on custody and/or support would go to court and the court would award custody and support.

2. The obligor parent falls behind because he decides he doesn't like his present job, so he quits and looks for a new one.

3. Obligee parent brings a contempt motion. Court orders obligor to find work comensurate with his skills. Obligor says, you can't make me do that because it's forced labor. Court says, you're right, I can't, however, I can charge and try you for failing to support your child. Obligor says, the court took my custodial rights away -- it wouldn't be fair to charge me for failing to do the very thing that the court has refused to permit. Court says, hmmm, you're right. OK, then I will award you enough custody to permit you to actually support the child, and you better do it, because if you don't and the other parent files a complaint with the police and you are tried and found guilty, then I will force you to work or put you in jail.

Obligee parent says, hey wait, you're gonna reward the other parent for not paying support? Court says, it's not a reward. I'm giving the obligor parent custody over his/her child consistent with his/her availble time, in as much as he/she's not working. Now, if either one of you don't support the child, then you'll be arrested and tried for child abandonment and then I will force one or both of you to get a job or go to jail.

Do I need to go on??? This gets real complicated, real fast. Now the DA and the police are involved in every action, and the government will have a bigger bill and need a bigger bureaucracy to deal with the fallout.

Now, I'm not saying that the system couldn't be reworked -- just that it would be difficult, and let's face it, governments are famous for inertia when it comes to big changes. Hell, we had to have 19 nutcases fly three jet planes into buildings and kill 3,000+ people just to get the FAA to order commercial airline cockpits sealed off and secured from the passenger compartments. And, this was after 30 prior years of hijacking experience!

Forgetabout it. We aren't gonna change anything about this system. Not now -- not tomorrow -- not ever.

One day, however, the "colonists" of a different planet may institute a newer, better, legal system, or, at least, uphold the one that we already have. and eliminate some of this indemic problems.

In the meantime, I suggest that you vote Libertarian, because the Republicrats and Democans in D.C. all bowl together on Wednesday nights, and drink beer and make fun of the public who just does whatever it's told!

[Peanutsdad]

Heck, I call em the same thing. Republicrats. No real differences.