Criminalizing (Poor) Fatherhood

Abstract

States prosecute and incarcerate thousands of fathers every year for failing to pay their child support obligations. Ostensibly, these prosecutions aim to foster the health and well-being of children, without requiring the child’s mother to bear the costs of raising the child. What may appear on the surface to be a system that balances out inequities is actually a deeply flawed government program, one that promotes criminal recidivism and reinforces the poverty of indigent fathers. Contrary to the common image of a “deadbeat dad” raking in money and staying on the lam to avoid helping a mother raise their child, the vast majority of fathers who owe large amounts of child support make little to no income. These fathers do not pay their child support obligations because they are unable to. Once a state prosecutes and imprisons an indigent father, his odds of being able to pay that debt diminish even more. The criminalization of failing to pay child support is unconstitutional and revives prohibited debtors’ prisons. Fathers of lesser means are being incarcerated for failing to pay a private debt owed to their child’s mother or for not reimbursing the government for costs provided to the mother in the form of state assistance. In other words, an indigent father may be criminally sanctioned for not subsidizing the government’s welfare programs. Relying on antiquated ideas about a father’s role in the family, the child support system punishes poor fathers for their reproductive choices, and morally condemns them for bringing a child into the world without being able to financially provide for her. This Article calls for an end to the criminalization of failing to pay child support, and proposes several fiscally responsible changes to the current system that will improve the welfare of children whose parents are no longer together.

Keywords: child support, criminal law, punishment, family law, race, gender, fees and fines, legal financial obligations