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S.C. High Court Upholds Jail for Indigent Parents

In South Carolina, family court judges can throw indigent parents behind bars for non-payment of child support even if they cannot afford attorneys.

The Palmetto State is one of only five states that don’t guarantee indigent parents the right to counsel in civil contempt hearings that can result in jail time, the S.C. Supreme Court said in a March 29 ruling (Price v. Turner, opinion no. 26793), which was ignored by other media outlets.

"We recognize that … we are adopting the minority position," Chief Justice Jean Toal, writing for the court, said in a footnote in the ruling. "However, we are persuaded that the minority position held by Florida, Maine, New Hampshire and New Mexico is sound and in keeping with controlling precedent."

The U.S. Supreme Court, however, in a 1981 ruling involving a North Carolina termination of parent rights case, said that the right of an indigent defendant to have an appointed attorney isn’t just reserved for criminal cases, noting that the "defendant’s interest in personal freedom … triggers the right to appointed counsel."

The five-member S.C. Supreme Court unanimously ruled against a coalition of state and national legal groups that submitted a joint legal brief urging the justices to set aside an Oconee County Family Court judge’s civil contempt order in 2008.

The groups included the S.C. office of the American Civil Liberties Union, the S.C. Association of Criminal Defense Lawyers, the National Association of Criminal Defense Lawyers, the National Legal Aid & Defender Association, and the Brennan Center for Justice at the New York University School of Law.

"The South Carolina Family Court nevertheless has imprisoned hundreds, and likely thousands, of indigent defendants for nonpayment of support without appointed counsel," the groups said in their friend-of-the-court brief.

"These defendants languish in modern-day debtors’ prisons after patently unfair proceedings, many of which lack any factual findings," the brief added. "Often the courts do not even inquire into the defendant’s ability to pay their support obligation."

The number of indigent parents imprisoned statewide on contempt charges is unknown, as are child support collection rates for that group. Neither the S.C. Judicial Department nor the state Department of Social Services keeps records on those numbers, according to spokeswomen for the agencies.

Total statewide child support collection rates are barely above 50 percent, DSS records show.

Victoria Middleton, executive director of the S.C. ACLU, told The Nerve last week that imprisoning indigent parents can wind up costing taxpayers more in the long run.

"The state really needs to adequately fund and administer a public defender system," she said.

The S.C. Supreme Court in recent years has been pressured by the S.C. Bar, the state’s professional organization for lawyers, to change the way private attorneys are appointed by courts to represent indigents because of shortfalls in state funds to pay those lawyers.

Greenville attorney Derek Enderlin, who handled the appeal of Michael Turner – the parent at the center of the Supreme Court ruling – told The Nerve last week that his client likely will appeal the March 29 decision.

Turner was sentenced by Oconee Family Court Judge Timothy Cain on Jan. 3, 2008, to one year in jail after he was found in civil contempt for failing to pay $5,728.76 in child support, court records show.

Turner, who appeared by himself, was not informed by Cain of his right to an attorney, according to the legal brief submitted by the ACLU and other legal groups.

Turner presented evidence that he was indigent, telling Cain he had broken his back and was seeking disability, though the judge made no finding on his indigent status, the groups said in their brief.

Turner served the full year in jail and has since served another six months, Enderlin told The Nerve, adding he was out for only a few months before he was ordered back to jail.

Turner in court papers contended his constitutional rights to an attorney and due process were violated. But the Supreme Court in its ruling said he wasn’t entitled to a lawyer because he was found in civil contempt, as opposed to criminal contempt.

"The purpose of civil contempt is to coerce the defendant to comply with the court’s order," the justices wrote. "In contrast, criminal contempt is intended to punish a party for disobedience and disrespect. … A (person) imprisoned for civil contempt is said to hold the keys to his cell because he may end the imprisonment and purge himself of the sentence at any time by doing the act he had previously refused to do."

The ACLU and other legal groups in their brief said that "whether the proceeding is deemed civil rather than criminal in nature does not diminish the defendant’s Sixth Amendment right to appointed counsel, because the defendant’s liberty interest is the preeminent factor."

"If this Court does not immediately address this obvious constitutional violation, it will be giving the lower courts carte blanche to imprison South Carolina citizens without ever providing them the benefit of an attorney to safeguard their rights," the groups said.

If imprisoning indigent parents improves collection rates, it’s hard to tell that by looking at the overall numbers. For last fiscal year, a total of $174.1 million in child support was collected in South Carolina out of $339.7 million owed, or a collection rate of 51.25 percent, according to DSS records.

Last year’s collection rate was slightly higher than in fiscal year 2008, though that rate was more than 10 percentage points below the national collection rate, records show.

Reach Brundrett at (803) 779-5022, ext. 106, or rick@scpolicycouncil.com.

Judiciary