Blog
Civil Justice
By Nabanita (Neeta) Pal – 02/14/12
Crossposted at Huffington Post.
The long-anticipated foreclosure settlement announced last week by President Obama and the state attorneys general includes $5 billion that will flow to the states to support foreclosure prevention efforts, including the work of legal services and housing counseling providers. Given questions about whether the settlement will do enough for homeowners who are at risk of foreclosure, this funding for counseling and legal assistance is critical.
The track record of the five big banks at the heart of the settlement (Bank of America, JP Morgan Chase, Wells Fargo, Citigroup and Ally Financial) suggests they are unlikely to implement an effective and ambitious loan modification program without outside pressure and oversight. These loan servicers collect monthly mortgage payments when a loan is going well, and manage foreclosure proceedings and loan modification negotiations when a homeowner is struggling. But homeowners consistently complain that servicers lose documents, evade phone calls, and charge unwarranted fees. The shortcomings of the Obama Administration's HAMP program illustrate the dangers of relying on the banks' voluntary efforts to solve our foreclosure crisis.
Although the deal appoints an independent monitor to oversee implementation of the settlement, we need multiple watch dogs and facilitators. Legal advocates and counselors who meet with homeowners every day are well positioned to make sure people receive the relief they've been promised. The $5 billion allocated to the states should go to these programs and not be diverted.
For a second dispatch (see the first here), I spoke with Vicki Taitano of the Maryland Legal Aid Bureau. Vicki appears in the multimedia series, Fighting Foreclosure: Why Legal Assistance Matters, a joint project of the Brennan Center for Justice at NYU School of Law and the National Coalition for the Civil Right to Counsel, produced by Sarah Reynolds.
The series focuses on the perspectives of people who have experienced firsthand what happens when homeowners go up against banks and mortgage servicers without an advocate at their side. Now more than ever, these homeowners' stories are instructive: Whether this ambitious legal settlement is a substantial step toward solving our foreclosure crisis, or another missed opportunity, will depend in large part on whether struggling families have access to skilled legal assistance.
Dispatch #2: Vicki Taitano, Director, Maryland Legal Aid Bureau Foreclosure Legal Assistance Project
Vicki and her colleagues have assisted nearly 500 homeowners over the past two years. Louise Golden, a homeowner featured in today's video, was able to avoid foreclosure after Vicki got involved in her case.
What is one aspect of the foreclosure crisis that has been overlooked by the media?
The number of people who are just barely hanging on because of underwater mortgages and the refusal of banks to allow homeowners to refinance out of them. Homeowners are stuck paying high monthly mortgages on homes that are worth far less than the amount owed on them.
Many homebuyers did not realize how high the payments on their adjustable rate mortgages would go, and they were told at the time of purchase that they would be able to refinance before payments got too high. So there is a double whammy of high mortgage debt on houses that are now underwater, and monthly payments beyond their means. Millions of homeowners are stuck with homes that suck up all of their income and bring them no long-term financial security. They are glorified renters, who are responsible for taxes and insurance and upkeep of properties that are no longer assets. If they walk away, they are stuck with massive deficiency debt for which they will need to file bankruptcy to ever hope to recover.
From where you're sitting, what, in your view, is one of the main challenges facing homeowners in foreclosure?
Servicers, who are the middlemen in a foreclosure situation, are motivated financially as part of their own systems, to foreclose, and the legal system is unable and/or unwilling to intervene.
Despite the fact that banks have been bailed out, the government has not required them to modify loans when a modification makes economic sense. It is counterintuitive to think that they would not do this, but the servicer as middleman often results in a foreclosure when a less than drastic modification would have been financially better for both the investor and the homeowner. Servicers are set up to get the foreclosure rolling and get it completed.
For example, homeowners have difficulty getting information from servicers about steps they could take to help their situation. Servicers tell homeowners that their income is insufficient for a modification that may allow them to avoid a foreclosure sale. However, homeowners are often able and willing to rent out a room or work another part time job to increase their income and become eligible for a modification.
By some estimates, we are only halfway through our nation's foreclosure crisis. What is the biggest change we need to make in addressing this problem going forward?
Banks need to agree to lower the principal balances on underwater mortgages to reflect market value of the property. We need lenders and investors to recognize that prices are not going to return to the artificial heights caused by the housing bubble and that the idea of "moral hazard" on the part of homeowners ignores the role of the banks in putting homeowners in the situation they are in. When banks refuse to lower principal and instead foreclose, they end up selling the property below market value and incurring costs of foreclosure. This only reduces property values further. It makes no economic sense and is only done for fear of admitting their role in the mess.
Tags: Justice, Civil Justice, Civil Legal Aid
By Nabanita (Neeta) Pal – 02/07/12
Crossposted at Huffington Post.
Foreclosures aren't going away. By now, the abuses that brought us to this point and continue to sink us further into the crisis — predatory lending practices, hastily securitized loans and mortgage servicing errors — are well known. Accountability for these abuses, however, remains an open question.
As we await the outcomes of the 50-state attorneys general settlement and the Obama administration's new federal Financial Crimes Unit led by New York Attorney General Eric Schneiderman, we must not lose sight of the homeowners and communities who suffer the collateral damages of foreclosure.
The Brennan Center for Justice at NYU School of Law teamed up with the National Coalition for the Civil Right to Counsel and independent producer Sarah Reynolds to create a multimedia video series entitled Fighting Foreclosure: Why Legal Assistance Matters that tells the stories of homeowners around the country. The series focuses on the perspectives of people who have seen or experienced firsthand what happens when homeowners go up against banks and mortgage servicers without an advocate at their side. Time and again, with counseling and legal representation, homeowners are able to catch documentation fraud, lending violations and other unlawful practices, and negotiate a fair settlement to stay in their homes.
Community groups, legal aid lawyers, and housing counselors continue to act as first responders in a slow-moving foreclosure disaster that, according to the Center for Responsible Lending, is not even half-way over.
Dispatch #1: Sarah Ludwig and Josh Zinner, Co-Directors, Neighborhood Economic Development Advocacy Project (NEDAP) in New York City
NEDAP — a financial justice resource and advocacy center based in New York City — recently released a report showing that 345,435 mortgages were at risk of foreclosure in New York State in 2011. NEDAP's analysis confirms that the state has a long way to go before the foreclosure crisis is over. The report shows that neighborhoods of color continue to be disproportionately affected.
From where you're sitting, what, in your view, is one of the main challenges facing homeowners in foreclosure?
Servicers, servicers, servicers. We are years into the foreclosure crisis, and banks, through their mortgage servicers, continue to present serious obstacles to homeowners, resulting in millions of foreclosures that could and should have been averted. The problem should perhaps come as no surprise, since servicers generally continue to make more money from foreclosing on homes than from modifying mortgages, and public policy response has been slow at best in terms of requiring meaningful accountability by the industry. People who seek to negotiate effective loan modifications with servicers continue to get the major runaround, experiencing maddening delays and unreasonable denials of their loan modification applications. Meanwhile, the financial industry has spent millions upon millions of dollars lobbying against even the most basic reforms — to the profound detriment of families, communities, and the country.
What is one aspect of the foreclosure crisis that has been overlooked by the media?
The media, in general, have failed to address the fact that so little has been done to hold banks accountable — notwithstanding general consensus that banks and Wall Street caused the foreclosure crisis (enabled in no small measure by their regulators), and notwithstanding what we now know was a multi-trillion dollar bank bailout. Similarly, most media have categorically avoided core questions regarding the restructuring of our financial system to ensure fairness and equity going forward. Another glaring gap is coverage of the millions of people who've unfairly lost their homes to foreclosure. What's happened to them? Where are they now? Where's the redress?
By some estimates, we are only halfway through our nation's foreclosure crisis. What is the biggest change we need to make in addressing this problem going forward?
Broadly speaking, we need to forge a coherent, comprehensive federal housing policy that is grounded in principles of fairness and equity, and that emphasizes non-speculative housing models, such as community land trusts, mutual housing, and limited equity cooperatives. It is also vital that we address pervasive unemployment, underemployment, and the lack of a living wage. In terms of the mortgage industry, servicers should be held to strict rules and legal standards, such as a fundamental duty to work in good faith with distressed homeowners. The rules should require servicers to reduce principal for people underwater on their loans, for example, and include meaningful enforcement mechanisms and strong penalties for non-compliance.
Tags: Justice, Civil Justice, Civil Legal Aid
By Mark Ladov – 01/25/12
In last night’s State of the Union address, President Obama announced a potentially important new partnership between the federal prosecutors and state attorneys general who are investigating our nation’s mortgage crisis. Critically, the investigation will be chaired by New York State Attorney General Eric Schneiderman, who has spoken out on the need to hold banks accountable for predatory and risky practices, and who has used his office to help provide struggling homeowners with much-needed foreclosure prevention counseling and legal services. We applaud this move and will be watching closely to see that it succeeds in its promise of helping families and communities around the nation.
As the President explained: “I am asking my Attorney General to create a special unit of federal prosecutors and leading state attorneys general to expand our investigations into the abusive lending and packaging of risky mortgages that led to the housing crisis. This new unit will hold accountable those who broke the law, speed assistance to homeowners, and help turn the page on an era of recklessness that hurt so many Americans.”
This announcement offers hope that the long-delayed (and much-criticized) 50-state settlement talks over “robo-signing” by foreclosing lenders will be only a first step. The reported rumors surrounding the talks have suggested that a handful of major lenders (Bank of America, JPMorgan Chase, Wells Fargo, Citibank, and Ally Financial) would be required to contribute up to $8 billion for foreclosure prevention and refinancing efforts. This is in addition to setting aside $17 billion for principal reductions for underwater mortgages.
In exchange, the banks would receive waivers of liability for past unlawful practices. The critical question is how broad these liability waivers will be. If the banks are let off the hook, not just for “robo-signing,” but also for abusive and misleading practices in their loan origination and securitization, then there will be little leverage left to ensure future settlements that are better matched to the enormity of the current crisis. Attorney General Schneiderman has been a key critic of any deal that would let lenders off the hook, and his participation in this new effort is a positive sign.
President Obama also illustrated a keen awareness of the roots of this problem. As he said: “Let’s remember how we got here…In 2008, the house of cards collapsed. We learned that mortgages had been sold to people who couldn’t afford or understand them. Banks had made huge bets and bonuses with other people’s money. Regulators had looked the other way, or didn’t have the authority to stop the bad behavior.”
More than three years later, we are only halfway through our nation’s foreclosure crisis — but we have yet to see accountability for this misconduct. Instead, lenders have dragged their feet on helping to get borrowers back on track with their payments — despite the fact that foreclosure prevention will benefit families, communities, and the lenders themselves by helping the housing market to recover.
We need a serious investigation into the origins of this crisis. And we need federal and state authorities to leverage those investigations, and to press lenders to finally embrace the kind of large-scale modifications of failing and at-risk mortgages that must take place to dig us out of our economic malaise. We hope this federal/state initiative will help provide the leadership needed to steer us out of this crisis once and for all.
Tags: Justice, Civil Justice, Civil Legal Aid
By Mark Ladov & Neeta Pal – 01/20/12
Governor Cuomo got it exactly right in his State of the State address:
The financial crisis has taken a terrible toll on our state’s homeowners, forcing many out of their homes and putting many others at risk of foreclosure. Banks are unable or unwilling to renegotiate loans, and many of their foreclosure practices were questionable.
However, Governor Cuomo’s budget proposal failed to include a much-needed restoration of the $25 million appropriation for the Foreclosure Prevention Services Program that last year’s budget eliminated. This statewide network of housing counselors and legal aid lawyers has saved New York money by keeping families in their homes, and deserves the Governor’s support.
Foreclosures are devastating families and neighborhoods, particularly in low-income communities and communities of color. The foreclosure crisis is also dragging down our housing market. Financial analysts say that a strong response to help struggling homeowners is needed to lift our state and nation out of the current financial downturn. As Governor Cuomo declared, “We need to resolve this crisis so we can move on.”
Governor Cuomo’s budget proposal recognized that foreclosures are one of the critical issues facing New York State. Notably, he proposed the creation of a Foreclosure Relief Unit in the Department of Financial Services. This unit will focus on educating homeowners on the foreclosure process and its various rules and regulations, and will hopefully play an important role in mobilizing New Yorkers.
In addition, the governor should be applauded for proposing a judiciary budget that includes $25 million for civil legal services, a boost in state funding that will help ensure that general legal services are not further eroded due to sinking IOLTA funds and recent cuts to the federal Legal Services Corporation. Yet this $25 million is separate from what New York has been providing — and what is needed — to support the Foreclosure Prevention Services Program, which does not receive funding from the state’s judiciary budget, and which funds vital housing counseling in addition to legal services.
We have to tackle our state’s foreclosure problem on multiple fronts — by educating homeowners, but also by providing them with ongoing counseling and legal support. Since 2009, the Foreclosure Prevention Services Program has assisted more than 80,000 homeowners. The state’s $50 million investment in this program has saved New Yorkers billions of dollars by preventing families from slipping into homelessness, shoring up property values in struggling communities, and preserving our state's property tax base. This is money well spent.
Restoring the program’s funding is absolutely necessary to ensure homeowners have a voice in the foreclosure process — a judicial proceeding that is full of legal complexities. We urge Governor Cuomo and the state legislature to heed advocates’ call to restore the $25 million dedicated to housing counseling and legal services for New Yorkers at risk of foreclosure. As the Brennan Center has stated, this is a much-needed investment that will pay off for all of us.
Tags: Justice, Civil Justice, Civil Legal Aid
By Roopal Patel – 11/29/11
The foreclosure law firm of Steven J. Baum, P.C. is about to close its doors. Baum’s firm is a “foreclosure mill,” one of the largest law firms in New York State representing banks and financial institutions in foreclosure proceedings against homeowners. The firm recently came under increased scrutiny after Joe Nocera of the New York Times reported on a Baum firm Halloween party where employees dressed up as homeless people to mock those they had foreclosed upon. He followed this up by describing Baum’s foreclosure practices.
Baum’s firm was already being investigated for shoddy legal practices prior to the media attention. The firm had been under investigation by New York Attorney General Eric Schneiderman, the Department of Justice had investigated whether the firm had filed misleading or erroneous documents and required the firm to pay $2 million to the United States, and MFY Legal Services, which defends homeowners, filed a class action claiming the firm failed to file necessary papers. The end was in sight once Fannie Mae and Freddie Mac barred its loan servicers from referring new cases there.
Baum’s impending closure should be lauded as a demonstration that shoddy legal practices have consequences. Any organization that conducts legal work in an allegedly unprincipled manner cannot be entrusted with such high stakes work.
As one of the largest foreclosure mills in the state, Baum’s firm represented financial institutions in thousands of foreclosure proceedings. New York State authorities should monitor the foreclosure proceedings carefully to make sure the transition of Baum’s cases to new lawyers is a smooth one. Families facing foreclosure should not be stuck in a legal limbo or saddled with unnecessary fees and accrued interest due to delayed proceedings. There also should be no impact on homeowners’ ability to modify their mortgages.
The closing of Baum’s firm does not end the need for the New York State attorney general to remain vigilant in monitoring the fairness and legality of foreclosure proceedings originating from Baum’s firm — or for the other families who face the loss of their homes due to the foreclosure crisis at large.
The Brennan Center will continue fighting for adequate legal representation for those facing foreclosure, and urges Attorney General Schneiderman to continue its monitoring and investigation to ensure that homeowners are treated fairly. The lawyers representing the banks in proceedings need to be held to the highest ethical standards and understand the seriousness of the cases. The closure of Baum’s firm is one of many necessary steps in ensuring fairness and due process for New York’s homeowners.
Tags: Justice, Civil Justice
By Laura Klein Abel – 10/24/11
This post originally appeared on the White House Champions of Change blog.
On October 13, Attorney General Eric Holder recognized me as a Champion of Change for helping low-income people get their day in court. Of course, the real heroes are the people who fight daily in court to protect their lives and their families, despite an inability to find a lawyer, language barriers, and other obstacles. Here are two of their stories.
Charles Guider was late making a mortgage payment after his mother died. When he tried to pay, none of the banks or mortgage servicers that had bought and sold the mortgage over the years would take the money. One of them filed for foreclosure. He’s still in his home today because his civil legal aid lawyer persuaded the lender to accept the money and drop the foreclosure.
Charles is one of the lucky ones. Record numbers of people are turning to the courts for help dealing with the effects of the financial crisis on their lives, including foreclosure, eviction, unjust denial of subsistence benefits, and domestic violence. The vast majority cannot afford a lawyer and cannot find one to help them for free. Nonetheless, the House of Representatives is pushing for a 27% cut in funding for the Legal Services Corporation, which provides lawyers for low-income families needing legal help. To spur discussion about the need for civil legal aid, my colleagues and I produced a series of short videos telling the stories of Charles and other homeowners. Please watch them and join us in the push for civil legal aid funding.
Maythe Ramirez tried to warn the judge in her child custody case that her husband had beaten her and might harm the children. But Ms. Ramirez speaks Spanish, and there was no interpreter in the courtroom. She later told a New York Times reporter, “It is really as if you are doing nothing in court, standing still and not being able to explain what’s really happening.”
Ms. Ramirez had the misfortune to be in court in California, a state that provides interpreters for some court cases but not others. But her story is prompting change. Colorado, Ohio, Pennsylvania and Utah are among the states that have vastly improved their court interpreter programs in the past few years. And the American Bar Association is developing a historic set of standards for language access in courts, which will help the courts educate legislators and others about the need to fund this important aspect of access to the courts.
I have spent over a decade building a national program that uses advocacy, policy analysis, scholarship, public education and litigation to ensure that the justice system works when low-income communities need it. When I hear Charles’s and Maythe’s stories, I know our work is far from over. I am proud to have the opportunity to work with my fellow Champions of Change to hold our nation to its promise of “equal justice under law.”
Tags: Justice, Civil Justice, Civil Legal Aid, Language Access
By Molly Alarcon & Neeta Pal – 07/08/11
Yesterday, a House subcommittee cleared a bill that would reduce federal funding for civil legal services for the poor to its lowest level in more than a decade. The House Appropriations Subcommittee on Commerce, Justice, Science and Related Agencies reported out of committee a proposal to cut the budget of the Legal Services Corporation (LSC), which funds 136 non-profit civil legal aid providers around the country, by a staggering 26 percent, or $104 million.
Under the proposal, funding would be reduced to $300 million, the same level of funding in 1999, without adjusting for inflation. The proposed cuts, which await approval by the full Appropriations Committee next week, would severely hamper the ability of already strained legal aid providers to represent low-income Americans in civil cases such as mortgage foreclosure, eviction, domestic violence, and child custody. These service cuts occur at a time when legal aid providers are already stretched thin— for every client served, one eligible client is also turned away due to lack of resources.
Federal support for civil legal aid is crucial. The 136 providers who rely on LSC for some portion of their organizational budgets have seen other sources of funding shrink dramatically in recent years, while demand for services has increased. Interest pooled from lawyers’ trust accounts, or IOLTA, which have historically constituted a significant source of private revenue, are at record lows. Legal Services of New Jersey, for example, received $40.2 million from IOLTA accounts in 2007. In 2010, IOLTA-generated income fell nearly 78 percent to $8.9 million. State funding for civil legal aid is also disappearing as legislatures tighten their budgets. This Brennan Center state-by-state overview details the funding cutbacks under which civil legal aid providers are forced to operate while demand for services continues to rise.
These proposed cuts come at a time when an increasing number of Americans are struggling financially, relying on LSC programs to address their legal needs. A record 63 million Americans are now eligible for LSC services. According to LSC data, from 2009 to 2010, foreclosure cases increased 20 percent at LSC-funded programs, unemployment compensation cases increased 10.5 percent, landlord-tenant disputes increased 7.7 percent, bankruptcy, debt relief, and consumer finance cases increased 5 percent, and domestic violence cases increased 5 percent. Providers have struggled to meet this rising demand, and have been forced to turn away eligible clients (whose legal needs are likely to go unmet). According to LSC’s preliminary estimates, about 235,000 low-income Americans eligible for civil legal assistance at LSC-funded programs would be turned away if the proposed cuts were enacted.
Congressional members in both parties recognize the importance of civil legal aid for the fair administration of justice for low-income Americans. Earlier this year, Republicans and Democrats voted down a proposal to eliminate all LSC program funding, citing the importance of civil legal aid to the livelihoods of so many Americans in rural districts and low-income communities. The proposed budget for LSC threatens the integrity and the efficiency of our justice system, while saving the federal government relatively little money. Congressional leaders must reverse these proposed cuts and restore full funding for legal aid.
Tags: Justice, Civil Justice, Civil Legal Aid
By Rebekah Diller – 06/20/11
In a mixed result for the rights of indigent parents, the Supreme Court today held that the year-long incarceration of a South Carolina man for failure to pay child support violated the Constitution because adequate safeguards had not been in place to ensure that his failure to pay was willful. However, the Court also ruled that parents facing jail time for failure to pay child support do not have a categorical right to a court-appointed defense attorney when the other parent is unrepresented.
The case, Turner v. Rogers, involved an appeal of an order finding Michael Turner in civil contempt because of his failure to pay child support. At the hearing, Mr. Turner had been unrepresented by counsel and had attempted to explain to the judge why he could not pay his debt. The judge did not make any finding as to Turner’s ability to pay the arrears and nonetheless ordered Turner to serve a year in prison.
Debt collection proceedings not addressed by ruling
At the outset, it’s worth noting that the Court explicitly confined its ruling to cases in which an unrepresented custodial parent brings a petition for civil contempt. The Court appeared especially concerned about the potential for an imbalance of power if those in debt were appointed counsel while those seeking to collect the arrears — often mothers supporting their children — were not.
Thus, the Court did not address the question of whether counsel is required in the vast number of cases involving state agencies seeking to collect past due child support. Nationally, about half the outstanding child support debt is owed to the government, which obtains the right to collect from recipients of welfare benefits.
In addition, the decision did not address situations in which a court uses contempt or other proceedings to enforce court orders to pay fees arising out of criminal cases. A Brennan Center report last year found that out of 15 states studied, 11 had statutes or practices that authorize incarceration for willful failures to pay criminal justice debt, often under the guise of civil contempt.
Nor did the Court address “unusually complicated” cases in which counsel might be necessary to fully flesh out the issues.
Challenges to enforcement
While Turner wisely left these situations for another day, it created a thorny set of implementation questions for the lower courts. Following the suggestion of the Solicitor General, the Court held that due process requires the following alternative procedures before an unrepresented parent can be incarcerated for failing to pay:
- Notice that ability to pay is the issue to be decided;
- A form to elicit information about financial circumstances;
- An opportunity to respond to questions triggered by the form; and
- An express finding by the court that the defendant has the ability to pay.
Such procedures are more than warranted and may well provide sufficient safeguards in a select number of cases. However, while the Supreme Court’s holding is the law of the land, it is unfortunately not self-executing. As my colleague Laura Abel has written, enforcement of these standards will require vigilance by the courts and bar alike.
What happens, for example, when a judge fails to make a finding about ability to pay, as the judge did here? Or when a court fails to make the right inquiries based on the responses to a form? Who will notice?
When counsel isn’t appointed at the outset, it’s all too easy for people to slip through the cracks and languish behind bars, as documented in this Brennan Center report on Florida’s criminal justice debt. Take the case of Rafael E. from Highlands County, Florida, who spent four months in jail several years ago for failing to pay court debts of less than $750, which no judge had ever determined he had the ability to pay. It was only after he happened to come to the attention of the local public defender that his release was secured.
With scant checks in the system, it is hard to take comfort in the procedural changes mandated by the Supreme Court. They will only work if state courts — already struggling with budget cuts and rising caseloads — find time to take extra care in their dealings with those who are unrepresented.
In a mixed result for the rights of indigent parents, the Supreme Court today held that the year-long incarceration of a South Carolina man for failure to pay child support violated the Constitution because adequate safeguards had not been in place to ensure that his failure to pay was willful. However, the Court also ruled that indigent parents did not have a categorical right to a court-appointed defense attorney in child support hearings when the other party is unrepresented.
The case, Turner v. Rogers, involved an appeal of an order finding Michael Turner in civil contempt because of his failure to pay child support. At the hearing, Mr. Turner had been unrepresented by counsel and had attempted to explain to the judge why he could not pay his debt. The judge did not make any finding as to Turner’s ability to pay the arrears and nonetheless ordered Turner to serve a year in prison.
Debt collection proceedings not addressed by ruling
At the outset, it’s worth noting that the Court explicitly confined its ruling to cases in which an unrepresented custodial parent brings a petition for civil contempt. The Court appeared especially concerned about the potential for an imbalance of power if those in debt were appointed counsel while those seeking to collect the arrears — often mothers supporting their children — were not.
Thus, the Court did not address the question of whether counsel is required in the vast number of cases involving state agencies seeking to collect past due child support. Nationally, about half the outstanding child support debt is owed to the government, which obtains the right to collect from recipients of welfare benefits.
In addition, the decision did not address situations in which a court uses contempt or other proceedings to enforce court orders to pay fees arising out of criminal cases. A Brennan Center report last year found that out of 15 states studied, 11 had statutes or practices that authorize incarceration for willful failures to pay criminal justice debt, often under the guise of civil contempt.
Nor did the Court address “unusually complicated” cases in which counsel might be necessary to fully flesh out the issues.
Challenges to enforcement
While Turner wisely left these situations for another day, it created a thorny set of implementation questions for the lower courts. Following the suggestion of the Solicitor General, the Court held that due process requires the following alternative procedures before an unrepresented parent can be incarcerated for failing to pay:
1) Notice that ability to pay is the issue to be decided;
2) A form to elicit information about financial circumstances;
3) An opportunity to respond to questions triggered by the form; and
4) An express finding by the court that the defendant has the ability to pay.
Such procedures are more than warranted and may well provide sufficient safeguards in a select number of cases. However, while the Supreme Court’s holding is the law of the land, it is unfortunately not self-executing. As my colleague Laura Abel has written, enforcement of these standards will require vigilance by the courts and bar alike.
What happens, for example, when a judge fails to make a finding about ability to pay, as the judge did here? Or when a court fails to make the right inquiries based on the responses to a form? Who will notice?
When counsel isn’t appointed at the outset, it’s all too easy for people to slip thro
In a mixed result for the rights of indigent parents, the Supreme Court today held that the year-long incarceration of a South Carolina man for failure to pay child support violated the Constitution because adequate safeguards had not been in place to ensure that his failure to pay was willful. However, the Court also ruled that indigent parents did not have a categorical right to a court-appointed defense attorney in child support hearings when the other party is unrepresented.
The case, Turner v. Rogers, involved an appeal of an order finding Michael Turner in civil contempt because of his failure to pay child support. At the hearing, Mr. Turner had been unrepresented by counsel and had attempted to explain to the judge why he could not pay his debt. The judge did not make any finding as to Turner’s ability to pay the arrears and nonetheless ordered Turner to serve a year in prison.
Debt collection proceedings not addressed by ruling
At the outset, it’s worth noting that the Court explicitly confined its ruling to cases in which an unrepresented custodial parent brings a petition for civil contempt. The Court appeared especially concerned about the potential for an imbalance of power if those in debt were appointed counsel while those seeking to collect the arrears — often mothers supporting their children — were not.
Thus, the Court did not address the question of whether counsel is required in the vast number of cases involving state agencies seeking to collect past due child support. Nationally, about half the outstanding child support debt is owed to the government, which obtains the right to collect from recipients of welfare benefits.
In addition, the decision did not address situations in which a court uses contempt or other proceedings to enforce court orders to pay fees arising out of criminal cases. A Brennan Center report last year found that out of 15 states studied, 11 had statutes or practices that authorize incarceration for willful failures to pay criminal justice debt, often under the guise of civil contempt.
Nor did the Court address “unusually complicated” cases in which counsel might be necessary to fully flesh out the issues.
Challenges to enforcement
While Turner wisely left these situations for another day, it created a thorny set of implementation questions for the lower courts. Following the suggestion of the Solicitor General, the Court held that due process requires the following alternative procedures before an unrepresented parent can be incarcerated for failing to pay:
1) Notice that ability to pay is the issue to be decided;
2) A form to elicit information about financial circumstances;
3) An opportunity to respond to questions triggered by the form; and
4) An express finding by the court that the defendant has the ability to pay.
Such procedures are more than warranted and may well provide sufficient safeguards in a select number of cases. However, while the Supreme Court’s holding is the law of the land, it is unfortunately not self-executing. As my colleague Laura Abel has written, enforcement of these standards will require vigilance by the courts and bar alike.
What happens, for example, when a judge fails to make a finding about ability to pay, as the judge did here? Or when a court fails to make the right inquiries based on the responses to a form? Who will notice?
When counsel isn’t appointed at the outset, it’s all too easy for people to slip through the cracks and languish behind bars, as documented in this Brennan Center report on Florida’s criminal justice debt. Take the case of Rafael E. from Highlands County, Florida, who spent four months in jail several years ago for failing to pay court debts of less than $750. It was only after he happened to come to the attention of the local public defender that his release was secured.
With scant checks in the system, it is hard to take comfort in the procedural changes mandated by the Supreme Court. They will only work if state courts — already struggling with budget cuts and rising caseloads — find time to take extra care in their dealings with those who are unrepresented.
ugh the cracks and languish behind bars, as documented in this Brennan Center report on Florida’s criminal justice debt. Take the case of Rafael E. from Highlands County, Florida, who spent four months in jail several years ago for failing to pay court debts of less than $750. It was only after he happened to come to the attention of the local public defender that his release was secured.
With scant checks in the system, it is hard to take comfort in the procedural changes mandated by the Supreme Court. They will only work if state courts — already struggling with budget cuts and rising caseloads — find time to take extra care in their dealings with those who are unrepresented.
Tags: Justice, Civil Justice, Civil Right to Counsel
Page 2 of 5 pages < 1 2 3 4 > Last »
Permalink