On March 4, Equal Justice Under Law sued the state of Missouri for suspending the driver’s licenses of those too poor to pay child support. Tens of thousands of people in Missouri cannot drive as a result of their licenses being suspended over child support they are unable to pay. It’s a federal class-action lawsuit called Wright v. Family Support Division.
Low-income people with cars have access to 30 times as many jobs as low-income people dependent on public transit, notes transportation expert Randal O’Toole of the Cato Institute: “Transit speeds average just 15 mph while average auto speeds in most cities are twice that.” Moreover, “autos allow users to go where and when they want to go, while transit riders must go where and when the transit goes, which often means less direct routes than they could drive.”
So government restrictions on poor people’s ability to drive reduce their ability to get a job. Such restrictions also lead to people getting worse jobs, or working fewer hours than if they could quickly drive to work. That shrinks the size of the economy, and increases the federal budget deficit.
But very often, people’s driver’s licenses are suspended when they are behind on their child support payments. That leaves them even less able to work and pay their child support. Often, they get behind on their child support because they lost their job. Losing their drivers’ license makes it even harder for them to find a job to resume paying their child support. The Urban Institute noted years ago that only 4% of noncustodial parents manage to get their monthly child support payments reduced when they lose their job, even though jobless people can’t afford to pay as much as people with jobs. Their unpaid child support just grows and grows, leading to them losing their driver’s license and access to most potential jobs.
Child support obligations are often set too high to begin with. When California commissioned the Urban Institute to investigate why parents were often behind on their child support, it reported that the number one reason for arrearages was that “orders are set too high relative to ability to pay.”
Earlier, I described how design flaws typical of state child-support guidelines lead to child support obligations often exceeding low-income fathers’ ability to pay, including in a 2014 op-ed in the Richmond Times-Dispatch.
Equal Justice Under Law is suing Missouri on behalf of Nathan Wright and Camese Bedford. Mr. Wright is in arrears for support of his daughter, who is now 19. He is unable to pay off his arrears. As a result, Missouri suspended his driver’s license. Mr. Wright has custody of his two younger children, ages nine and four, and he is their sole provider and caretaker.
Mr. Bedford is a 31-year-old Navy veteran. His license was suspended because he owes over $2,500 in child support arrears that he cannot pay. Mr. Bedford is currently unemployed, and his only income is the $140 he receives monthly in disability benefits, which covers only a fraction of his monthly expenses. Mr. Bedford’s license suspension has made it impossible for him to see his six-year-old daughter regularly.
At its website, Equal Justice Under Law explains why it brought the lawsuit:
In Missouri, the Family Support Division (FSD) has made the inability to complete childcare payments the first step in a downward spiral of criminal culpability. The FSD has the authority to suspend the driver’s license of any person who owes at least three months’ worth of child support payments or at least $2,500, whichever is less. While designed to coerce support out of non-custodial parents, this punishment, when enforced against parents who are struggling financially, makes it more likely that payments will be missed.
Their practice of total license suspension until the debt is paid makes it less likely that the government will ever receive its intended fees. No punishment can increase the likelihood that a person will pay a debt that they are unable to pay, especially when their means of transportation is revoked.
The FSD does not provide ability-to-pay hearings for those affected, so many parents whose licenses are suspended face an impossible choice: comply with the suspensions and lose their jobs, homes, and ability to care for their families, or drive illegally and face the threat of further debt and criminal charges if they are caught.
Suspending the driver’s licenses of non-custodial parents makes it more difficult for them to see their children regularly, pick them up for visitation, or share in caring for them by taking them to doctor’s appointments and participating in school activities. These license suspensions harm the interests of the children who are meant to benefit from child support enforcement by making it virtually impossible for non-custodial parents with limited means to play a meaningful role in their children’s lives as well as ensuring that parents are unable to earn the money that they would gladly use to support their children.
We are challenging this practice on the grounds that it violates Equal Protection and Due Process rights and the fundamental right to travel. The law is counterproductive — attempting to coerce payment by taking away people’s ability to drive, thereby impeding their ability to work and earn money — and therefore fails rational basis review. The law also punishes people simply for being poor, a violation of their substantive due process rights. Automatic suspension also deprives impoverished drivers of a protected property interest, their driver’s licenses, without an ability-to-pay hearing, a violation of their procedural due process rights.
As I described in the Times-Dispatch, parents also sometimes get jailed for not paying child support that they are simply unable to pay. In theory, inability to pay is a defense to being jailed, but noncustodial parents facing jail typically do not have a lawyer or understand the rules of evidence. Courts often fail to accord them even the minimal due-process safeguards mandated by the Supreme Court’s decision in Turner v. Rogers. Some court rulings have cited a father’s failure to pay for an appeal bond as a basis for not hearing his appeal of his incarceration, even though a parent who is too broke to pay child support will also be too broke to afford the cost of an appeal bond. That can put low-income parents in a Catch-22 situation.
When parents are jailed due to their inability to pay excessive child support obligations, their relatives may have to empty their pockets to pay off the arrears, to get their family member out of jail. It can look a lot like holding someone for ransom. A South Carolina judge called this the “magic fountain” — jail a person who couldn’t pay their child support, and, as if by magic, the money may appear, courtesy of desperate relatives.
But if you live in a poor black neighborhood or rural area, there may be no prosperous relative around to ransom you from jail. In 2002, Murray Steinberg of the Family Resolution Council told me that a majority of parents jailed in Virginia over child-support were black, even though blacks were only a minority of those ordered to pay child support. He also said that excessive child-support obligations were driving African-American men into the black market. He served on Virginia’s child-support guidelines review panel.
(Note: I am not divorced, and I don’t owe child support).