Broke and locked-up

Ex-lawyer John Jackson had fallen asleep in a holding cell at the Charleston County jail when he felt someone tapping on his shoulder. He thought it was a deputy waking him to move him to another cell.

But when he opened his eyes another inmate was standing over him.

“He starts punching me in the face,” Jackson said. “He got me in the nose. There was blood everywhere.”

“My nose is still bent,” added Jackson, who said he was jailed for civil contempt after his law practice in North Charleston folded and he fell behind on the $1,500-a-month child support payments that he’d agreed to make during more prosperous times.

Jackson went from representing deadbeat dads to being one. And he says that his experience illustrates South Carolina’s broken system of aggressively going after financially strapped defendants for payment, regardless of whether their pockets are empty.

What happened to Jackson is indicative of what some see as a troubling problem in the Carolinas and throughout the country. As lawmakers shy away from raising taxes, cash-strapped courts and local governments are leaning more on defendants and offenders to cover operating costs – despite the fact that many of these people are struggling to pay their own bills.

A recent National Public Radio report on the emergence of modern debtors’ prisons has sparked a conversation about a system that subjects people to more severe penalties just because they don’t have money.

A critic of that system, Gregory Forman, who has a family law practice in Charleston, said South Carolina should put better procedural safeguards in place to ensure that cash-strapped parents who owe child support are not jailed for being poor.

“There are a whole lot of underemployed men out there due to the way the economy is these days,” he added. “The court just doesn’t seem to show them much empathy. There are guys who lose their jobs because they’re in jail. I understand that the court is trying to look out for children, but I just can’t believe there’s not a better way to handle this.”

The U.S. Supreme Court expressed concern about South Carolina’s approach to child support enforcement when it decided Turner v. Rogers three years ago. The court held that the state had failed to determine whether Michael Turner was able to pay the child support he owed before jailing him for contempt.But Forman said the state’s courts have essentially ignored the decision.

Anyone who wants to understand the problem, Forman says, should attend one of the so-called “daddy roundups” that still occur regularly in the state’s family courts. Alleged deadbeat parents are brought into court, usually after being picked up on bench warrants, then given a few minutes to explain their financial situation to a judge.

“They’re all in there in their orange jumpsuits. If you put sepia tone on it you’d think we were back in the 1930s South,” he said. “I can’t recall that I’ve ever seen anyone leave without handcuffs. No one ever has a good enough excuse.”

‘Set up to fail’

In North Carolina, Mark Williams, a family law attorney at Rice Law in Wilmington, said people joke that the court has a “make daddy pay day” followed by “make daddy go to jail day.”

But he added that the joke isn’t entirely true. In his experience, most judges actually look into whether a parent has the ability to pay child support and not that many go to jail. He said the problem of locking up indigent defendants appears to be far worse in North Carolina’s criminal courts.

Thomas Maher, executive director of the North Carolina Office of Indigent Defense Services, said defendants convicted of minor misdemeanor crimes, such as fishing without a license or going more than 15 mph over the speed limit, get hit with comparatively big court costs that often snowball.

“You can end up paying hundreds or thousands of dollars for a relatively minor offense,” he said. “Then you face being brought back into court and being locked up for essentially being poor.”

Guilty defendants in the Tar Heel State, but not South Carolina, can be charged room and board for their jail stay. If given a court-appointed attorney, they must pay a $60 appointment fee plus attorney costs, which usually amounts to at least a few hundred dollars.

And that’s just a small sampling of the string of court costs imposed on defendants. The state recently began charging a $600 lab fee for blood evidence analysis and another $600 if the analyst testified during trial.

Probationers who don’t come up with the money face maximum jail sentences of 90 days.

“If you’re working and you have a family that’s a fair amount of time,” Maher said. “This should only be done if failure to pay is willful, but there are a lot of judges who think that any failure to pay is willful.”

Maher added that an assistant public defender recently told him about a defendant being cross-examined over the fact that he had running water. “Apparently,” Maher said, “that’s a sign that you’ve got money.”

Another defendant was asked how he could afford a tetanus shot for his daughter after she’d stepped on a nail – the man explained in court that he had to get a payment plan on the shot.

“There are people who are not paying just because they don’t take it seriously, but I think the problem [of modern debtors’ prisons] has grown in recent years because the court costs have gotten so high,” Maher said. “There’s an increasing reliance on fees to support the court system. You put a burden on people that they can’t meet. This is a system where people are set up to fail.”

‘State sanctioned kidnapping’

Charleston Family Court Judge Paul Garfinkel found Jackson in civil contempt last spring and ordered him jailed for six months when he could not come up with at least half of the $14,000 in back payments that he owed to his ex-wife.

Jackson said he showed the court how his annual income had fallen from $100,000 to less than $60,000 between 2010 and 2013 as his client list dwindled.  But he said Garfinkel refused to modify his $1,500 monthly support payments.

“There are truly deadbeat dads. In the ride to the jail there were guys in the van saying, ‘I ain’t going to pay anything,’ ” Jackson said. “Then there was another guy in the same situation as me. He had his own business and it declined and he was paying his ex as much as he could.”

Before he was hauled off to jail Jackson said he told Garfinkel that he’d just received a job offer from a company he worked for prior to opening his law practice and, if given a little more time, he could start chipping away at his debt.

“The court could have garnished my wages or had another hearing to make sure I started the job. It makes no sense that I was sent to jail,” Jackson said.

He added, “I had represented other dads in the past in front of Garfinkel and he’d made the comment once that this is a court that ensures mothers get payment.”

Jackson equated the practice of jailing poor defendants in hopes that someone else pays the ransom to “state-sanctioned kidnapping.”

Garfinkel could not be reached for comment.

Jackson, 44, spent two nights in jail before his parents paid the $7,000 and had him released. He’s bringing home a paycheck again but he still owes about $7,000 in back payments, and his monthly child support has climbed to $1,600. The court tacked on a $100 fee as part of a payment plan to address the debt.

In April, Jackson’s law license was suspended (he failed to complete his continuing legal education) and he says he has given up on being a lawyer.

“I just don’t want to do that,” he said. “I feel that my credibility is shot, absolutely ruined, especially if I have a client in front of Judge Garfinkel.”

‘Can’t get blood from a turnip’

Maher and his colleagues at the North Carolina Office of Indigent Defense Services have been lobbying the state legislature to make certain misdemeanor criminal offenses infractions that don’t carry jail time and the related costs.

“Even if you thought it was fair to say you committed this incredibly minor crime and have to pay $1,000, you can’t get blood from a turnip,” he said. “You’re criminalizing poverty.”

Jackson, meanwhile, wants to organize a group and push for better guidelines for the Palmetto State’s family court judges to follow when determining whether someone is truly unable to pay child support.

Court administrators in Michigan have formed a similar group, though it hasn’t been around long enough to gauge its impact. In June, the state’s Supreme Court ruled that the trial courts could not impose operating costs on defendants unless the legislature expressly authorized the fees.

“Part of the problem is that this has been happening at the lower level courts, at a county-by-county level, so there’s no national fix for it,” said Arvind Ganesan, the Washington-based director of Human Rights Watch’s Business and Human Rights Division.

“What we’re seeing is a whole civil debt collection system morphing into something that has a criminal component to it,” he added. “We need to start being more rigorous about determining whether people can pay.”

Follow Phillip Bantz on Twitter @SCLWBantz