The crisis revealed by the killing of Walter Scott: how we're failing vulnerable fathers

The sight of a South Carolina white police officer shooting Walter Scott, a 50-year-old black man in the back was so chilling that many of us never thought to ask: what made Scott so desperate to get away from the officer?

We learned right away that he had been apprehended for a broken taillight, but obviously there was something else going on, or he wouldn’t have fled in that manner.

The story that has since emerged is that he had feared going to jail for unpaid child support. The fact that a parent owing child support can be incarcerated – and often is – is just as reprehensible, I would argue, as the blatant disregard shown by Officer Slager for Walter Scott’s life.

The fear of incarceration bears indirect responsibility for Scott’s death. And Walter Scott was not alone in feeling this fear.

At present, there are approximately 9 million nonresident fathers (that is to say, fathers who do not live in the same household as their child or children) of whom over half are economically vulnerable.

Vulnerable nonresident fathers are men who have child support obligations, and who would be poor or near poor if they paid their support in full since doing so would leave them barely able to meet their daily living expenses, placing them in an impossible situation.

Currently a massive seventy percent of all past due support – referred to as arrears – are owed by nonresident fathers making $10,000 or less per year.

In many states fathers can be incarcerated for failing to pay child support. In Walter Scott’s case, he lost a well paying job while incarcerated for failure to pay, making a difficult situation far worse.

This is a crisis that needs addressing.

South Carolina’s notoriety

South Carolina, where the Walter Scott incident took place, is notorious for the use of incarceration to punish nonresident fathers for failing to pay child support.

A survey conducted by law professor Elizabeth Patterson in 2005 and 2009 in South Carolina found that nearly one out of over six to eight individuals in county jails were family court detainees. In some county jails, proportions were even higher.

In fact, it was South Carolina’s practices that led to the 2011 Supreme Court case of Turner v Rogers, which involved a man being ordered to spend a year in prison because of his delinquency in child support payments without giving him any opportunity to establish his ability to pay.

In a landmark decision, the Supreme Court ruled that even in such cases, states cannot deprive citizens of their due-process rights.

To create a fairer system, it is essential to separate fathers who will not pay from those who simply cannot pay.

Incarcerating dead broke fathers simply punishes men for the crime of being poor. Furthermore, a prison record may significantly diminish the future ability of a noncustodial father to secure a good job and lift themselves and their families out of poverty.

Department of Health and Human Services

Since Turner v Rogers the Federal Office of Child Support Enforcement (OCSE) has undertaken a massive campaign to educate states on the appropriate legal procedures. For example, before forcing noncustodial parents to choose between incarceration or a purge payment - an immediate lump sum - courts should ensure that fathers can afford to make such a payment.

The OCSE campaign also advises states on alternatives to incarceration as a means of collecting delinquent child support. For example, states can require fathers without jobs or adequate income to participate in employment programs, helping them to find work and meet their obligations.

The Supreme Court decision also inspired the OCSE to propose a series of rule changes in the child support enforcement program. Among other things, these changes are meant to ensure that child support orders actually reflect the ability of nonresidential fathers to pay.

The fact of the matter is this: In the US, the child support system lags behind a reality that has been in place for close to forty years.

The growing vulnerability of fathers

Since the mid-1970s, the earnings of men without graduate degrees have stagnated or declined, except for a brief period during the economic boom of the 1990s. During this same period, state efforts to enforce child support collections have increased with the help of the federal government.

This downward wage trend has made it increasingly difficult for fathers to support their families.

Many of the fathers making $20,000 or less never married the mothers of their children, which is now the case for 41% of all births in the United States. These fathers had to be subpoenaed by the courts to determine if they were the legal fathers. Oftentimes, they failed to appear in court —- because of fear, transportation issues, or because they had no permanent address and never received the subpoena.

When a putative father fails to appear, the courts determine that he is the legal father by default, and child support orders are set without the information about the father’s actual income or ability to pay.

Instead, the courts impute (or infer) these fathers’ income level by using a proportion of welfare and other benefits the child receives, or by looking at the earnings at the father’s last-known job. If there is no record of prior earnings, the order is based on earnings at a full-time, full-year job paying minimum wage, which the courts assume any father could find.

Not surprisingly, the resulting child support order is often more than some of these fathers can afford, so they fall into arrears.

Studies show that in states that regularly use default orders and so-called income imputation, fathers with earnings of $20,000 or less accounted for the majority of arrears.

Though South Carolina has always been an outlier in incarcerating nonresident fathers for nonpayment, all fifty states still use civil contempt, potentially resulting in jail time, as a sanction.

For fathers who lack the economic resources, incarceration still looms large. However, in the wake of the Turner v Rogers decision, the Federal Office of Child Support Enforcement is encouraging states to not choose prison time as a first option. Many have chosen to take this path.

Besides working with states to limit the coercive use of incarceration to collect child support, the OCSE is now proposing rule changes that would help fathers with limited income meet their child support obligations. One of them would require courts to base child support orders on actual earnings, income, or assets -— rather than imputed income.

A second change would require courts to take into consideration the fathers’ subsistence needs when setting child support orders. Called a self-support reserve, this provision adjusts the father’s income to first consider basic needs, like rent and food, and then to set the child support order on the amount that remains.

In this way, low-income fathers no longer need to choose between meeting their daily expenses (rent, utilities, and transportation to work) and paying their child support. As they cannot cover both, they usually choose the former, with the result that their child support debts grow.

Political roadblocks to reform

Had Walter Scott lived, he might have seen the day where he no longer needed to fear being incarcerated for failing to pay child support – something that had already happened to him before this fatal incident occurred.

Or perhaps not.

Unfortunately, the proposed changes —- which represent decades of work by child support researchers, advocates, and policymakers -— are now caught up in a political battle of wills on Capitol Hill.

Leading Republican congressmen, such as Congressman Dave Camp, Chair of the House Ways and Means Committee, and Senator Orrin Hatch, Chair of the Senate Finance Committee have asked the Office of Child Support Enforcement to withdraw the proposed changes —- not because they take issue with the substance but because they feel that the Obama administration is overstepping its authority to make these changes without Congressional approval.

Let’s hope the memory of the fleeing Walter Scott, and his subsequent shooting, is enough for common sense to prevail and these long-awaited reform measures to be adopted.

This would go some way towards salvaging the legacy of a man who, while he neglected his duty to provide for his children, should not have been leading the life of a fugitive.

Ronald B Mincy receives funding from W.K Kellogg Foundation, National Institute of Child and Human Development, Russell Sage Foundation. He is affiliated with the National Fathers Leaders Group.