UNIVERSITY OF PENNSYLVANIA LAW SCHOOL
JOURNAL OF LAW AND SOCIAL CHANGE
ASSOCIATE EDITOR
DIRECT APPLICATION
2014
Thank you for your interest in the Journal of Law and Social Change!
BACKGROUND
The University of Pennsylvania Journal of Law and Social Change (JLASC) is a student-run
journal and seminar that espouses a progressive and interdisciplinary approach to challenge
social injustice. JLASC publishes works from scholars, practitioners, activists, and students that
present thoughtful analysis of current social issues with implications beyond the legal
community. JLASC attracts articles from a diverse range of authors around the world, which
provides us with the flexibility to select articles and shape each journal issue.
JLASC encourages a comprehensive and collaborative journal experience. Unlike other journals,
all JLASC members are directly involved in the process of article evaluation, selection, and
editing. Through debate and discussion in weekly seminars, the members of JLASC decide as a
group which articles to publish. The seminar meets once a week throughout the academic year,
and requires reading an average of two to three articles per week (ranging from 30-60 pages
each). Board members and 3L senior editors also give brief presentations on legal issues
pertaining to social justice, and invite practitioners and article authors to speak during seminars
throughout the year.
During the upcoming academic year, JLASC will publish its eighteenth volume. In addition to
regular issues, JLASC publishes the Edward V. Sparer Symposium Issue, as part of the
distinguished Sparer Symposium. Each year, the Sparer Symposium brings together legal
academics and practitioners to provide insight into the dynamic relationship between scholarship
and practice in an area of public interest law, merging theory and practice. The theme for the
2014 Sparer Symposium was “Gender and Social Inequality: Why Women’s Rights Still Matter.”
JLASC members receive three academic credits for their work over the year: one credit for
editing, and two for the weekly seminar and article evaluations. JLASC does not require that
students produce a comment, but the journal will consider publishing student-written articles.
JLASC’S MISSION
JLASC’s mission is to generate a robust scholarly discourse that explores the relationship
between law and social justice, and is oriented toward widening discussion on social justice
topics. Our scholarship goals are two-fold: to be a practical tool for practitioners looking to
solve injustices within their fields, and to publish articles that reframe the way we think about
broader social justice issues, legal and constitutional frameworks.
1
APPLICATION INSTRUCTIONS
This early “Direct Application” for membership in JLASC consists of the following four parts,
explained in full below: (1) personal statement; (2) resume; (3) article evaluation; (4) article edit.
Please submit the completed application by 5:00pm on Friday April 11, 2014, to
jlasc@law.upenn.edu. If you have any questions, feel free to contact Marie Logan
(marie.logan@law.upenn.edu) or Sonya Shea (ssonya@law.upenn.edu).
(1) Personal Statement
You may write about anything. Radical originality is not required, nor is a chronology of good
deeds. We are interested in learning about why you chose to come to law school, what you hope
to do with your degree, and why you are interested in and why you would be a good fit for
JLASC. The statement should be no more than two double-spaced pages, using size 12point font and one-inch margins.
(2) Résumé
(3) Article Evaluation (Appendix A)
Please read, but DO NOT EDIT, the excerpt from Expanding Asylum Law’s Pattern-orPractice-of-Persecution Framework to Better Protect LGBT Refugees. We received and voted
on this article last year, and now we want your opinion. Please read the article and answer the
following questions in a clear, concise, and thoughtful way. Your evaluation should be
between 2-3 double-spaced pages, in 12-point font with one-inch margins.
A) What is the article’s topic? Is the subject novel or timely?
B) What is the article’s point? Does it embrace a perspective consistent with JLASC’s
mission? Why or why not?
C) Does the author engage in analysis, reach an original conclusion, or make
recommendations, or does the piece simply present information?
D) What specifically did you like? What did you dislike? What would you look for in the rest
of the article to complement or compensate for those strengths and weaknesses?
E) How much editing (Bluebook and content) would be required, to publish this piece?
F) Would you want to see this piece published in JLASC? Why or why not?
2
(4) Article Edit (Appendix B)
Please use Track Changes to edit the body of the provided text for grammar and content, as well
as the footnotes for Bluebook citation format. If it is unclear which rule applies, or whether a rule
applies at all, please enter a comment and identify the ambiguity. Also, if you think you do not
have enough information due to lack of access to the original source, make a note of that in a
comment. Finally, please note if you believe that a footnote is absent but necessary.
Please use track changes as you edit. We will not deduct points for overlooked errors. We
will award points for errors identified and corrected. Good luck!
Please note: The text has been modified from its condition at submission in order to produce a
thorough editing assignment; this is by no means indicative of the quality of submissions that are
regularly reviewed by JLASC.
3
APPENDIX A: EVALUATE ONLY, DO NOT EDIT
Note: The following excerpt is for evaluation purposes only, and may not be used outside this evaluation.
Expanding Asylum Law’s Pattern-or-Practice-of-Persecution Framework to
Better Protect LGBT Refugees
By Aaron Sussman
United States law regarding noncitizens’ eligibility for asylum or entitlement to withholding1
is markedly different from the many areas of U.S. law that insist on rigid applications of doctrine
and precedent, as well as from areas that purport to adopt the fact-specific or independentjudgment approaches that are hallmarks of asylum law. For example, in INS v. CardozaFonseca,2 one of only a handful of Supreme Court decisions wrestling with issues specific to
asylum or withholding,3 the Court made clear that the high stakes for asylum applicants justified
the flexible approach established by Congress and the Court’s decision to “increase[] that
flexibility” by rejecting the executive branch’s attempt to constrain the class of applicants
eligible for discretionary asylum.4 This flexible approach for immigration judges (IJs) and
asylum officers,5 combined with broad deference to the legislative and executive branches for
immigration matters,6 has resulted in relatively few judicially created standards for refugees.
For the refugees I focus on here—those seeking protection from persecution on grounds
related to their perceived LGBT identity7—the largely unconstrained nature of the relevant law
has created a landscape that eludes easy and generalizable characterization. While one
commentator might find “U.S. asylum law [to be] one of the most hospitable legal arenas for
lesbian, gay, bisexual, and transgender . . . litigants,”8 another might observe “that immigration
officials and judges make decisions based on . . . sexual stereotypes and culturally specific
notions of homosexuality, thus discriminating against those who do not conform.”9 Less
disputed is the notion that, for refugees generally and LGBT refugees specifically, the disposition
of an application for asylum is highly unpredictable, an issue underlying this Article’s proposal.
This Article contributes to the wealth of scholarship around LGBT refugee issues that has
emerged in particular after Matter of Toboso-Alfonso,10 in which the Board of Immigration
Appeals (BIA) held that sexual orientation could constitute “membership in a particular social
group,” one of the five statutory grounds for persecution that can constitute refugee status.11 I
expand on this scholarship by analyzing the nexus12 between membership (whether actual or
imputed by the persecutor) in a LGBT-based social group and a well-founded fear of persecution,
a nexus I argue is distinctly amenable to viewing persecution in light of the pattern or practice of
persecution in certain countries.13 Because of the distinctive characteristics of this nexus, I argue
(1) that the pattern-or-practice framework should be applied when specific factors of a country
are present and (2) that these factors should trigger a presumption of the likelihood of future
persecution as well as a presumption that past or future persecution was or would be on account
of the applicant’s actual or imputed LGBT identity. This proposal expands and promulgates
factors for employing this framework in LGBT cases, which has only been done in one
published, precedential opinion, the Ninth Circuit’s 2008 case Bromfield v. Mukasey.14
I.
U.S. Refugee Law (and Why Asylum Is Different)
4
The law related to refugees in the United States developed partially in accordance with and
partially independent of the 1951 United Nations Convention Relating to the Status of
Refugees.15 The U.S. law’s most significant connection to the Convention is the definition of
“refugee,” which Congress modeled on the Convention’s language, statutorily defining a refugee
as a person outside the country of their nationality “who is unable or unwilling to return to, and
is unable or unwilling to avail himself or herself of the protection of, that country because of
persecution or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.”16 With some limited exceptions
barring eligibility, a person meeting the refugee definition is eligible for U.S. asylum at the
Attorney General’s discretion. Congress clarified the procedures and standards for asylum
eligibility in the Refugee Act of 1980, which added a degree of stability to refugee law and more
firmly committed to the terms of the 1951 Convention. In particular, Congress codified the
Convention’s Article 33 doctrine of “nonrefoulement” (or withholding), which prohibits states
from returning noncitizens to a country where they are likely to face persecution.17 According to
the statute, the Attorney General cannot “remove an alien to a country if . . . the alien’s life or
freedom would be threatened . . . because of the alien’s race, religion, nationality, membership in
a particular social group, or political opinion.”18 Thus, as of 1980, several standards based on the
Supreme Court’s interpretation of the statute govern the discretionary granting of asylum and the
mandatory granting of withholding.
A.
Membership in a Particular Social Group
Of the five statutory grounds on account of which a refugee might be persecuted,
“membership in a particular social group” is the most open to interpretation and therefore the
most appealing19 for applicants whose persecution was not clearly on account of race, religion,
nationality, or political opinion.20 While Congress has neither defined this category nor
promulgated standards for inclusion within it, its meaning has developed through BIA and
federal appellate case law. The most influential early case interpreting this category was Matter
of Acosta21 in 1985, which, applying the interpretive canon of ejusdem generis,22 defined
“particular social group” as “a group of persons all of whom share a common, immutable
characteristic. The shared characteristic might be an innate one or in some circumstances it might
be a shared past experience.”23 The court clarified that an “immutable characteristic” could be
defined normatively as one that members of the group “should not be required to change because
it is fundamental to their individual identities or consciences.”24 The BIA’s definition in Acosta
has been adopted (or, as the decision of an administrative agency, deferred to) by multiple
circuits.25
B.
LGBT Status as a Basis for Membership in a Particular Social Group
LGBT people might seem like a fairly clear social group under the prevailing standards, but
such recognition by the United States was unlikely before 1990, when Congress refused to let
gay people immigrate,26 imposing on the Justice Department “a legal obligation to exclude
homosexuals from entering the United States” as part of the statutory ban on “sexual
deviation.”27 In 1990, the year this statutory provision was repealed, the BIA for the first time
recognized a particular social group based on its members’ sexual orientation. In Matter of
Toboso-Alfonso,28 a gay Cuban refugee was found eligible for asylum as someone persecuted on
account of his membership in the social group of homosexuals where the Cuban government
5
classifies homosexuality as a crime, “registers and maintains files on all homosexuals,”
arbitrarily detains people on the registry, had detained Toboso-Alfonso on multiple occasions for
days at a time for forced “health examinations,” had singled him out for sixty days of hard labor
for missing one day of work, and had told him that he could choose to either be imprisoned for
four years for being a homosexual or to leave Cuba.29 Additionally, Toboso-Alfonso was
harassed by an anti-gay mob at the factory where he worked, was pelted with eggs by his
neighbors after they learned he was gay, and had to depart Cuba in the middle of the night
because authorities feared mob violence.30
Toboso-Alfonso is a rare case in that the IJ granted Toboso-Alfonso’s withholding
application,31 and it was the government that appealed32 to the BIA to argue that Toboso-Alfonso
should be sent back to Cuba, stating that “socially deviated behavior, i.e. homosexual activity is
not a basis for finding a social group.”33 After the BIA dismissed the appeal, the case remained
unpublished (and thus non-precedential) until 1994, when Attorney General Janet Reno ordered
its publication and directed all IJs and agency officials to adopt it as binding precedent.34 This
procedural history, combined with the BIA’s emphasis that its holding was based on TobosoAlfonso’s public identity as a homosexual and did not apply to persecution based on
“homosexual acts [or] assertion of ‘gay rights,’”35 foreshadows the dissent that has since been
issued by some commentators and judges over recognizing LBGT status or acts integral to that
status as comprising a particular social group for asylum eligibility.36
Since Toboso-Alfonso was published as a precedential opinion, many courts and agency
officials have found noncitizens eligible for asylum based on their membership in a social group
defined in relation to LGBT status or gender identity.37 Increasingly, judges are departing from
Toboso-Alfonso’s language indicating that the persecution must be based on the applicant’s
identity rather on conduct,38 an emphasis likely influenced by the Supreme Court’s holding four
years earlier that state “sodomy statutes” aimed at gay men were constitutional.39 The
identity/conduct dichotomy, which has been subject to much criticism,40 has evolved into a
standard under which asylum eligibility is essentially based on the judge’s or asylum officer’s
framing of how conduct—such as gay intercourse or men wearing feminine clothing—relates to
identity—such as a man self-identifying as gay or female-gendered.41 For example, a judge or
officer presented with a biologically male applicant who dresses in feminine clothing will likely
have wide discretion to decide if the persecution was merely on account of how he dressed
(conduct) or, in the Ninth Circuit’s language, on account of how he “manifest[ed] his sexual
orientation by adopting gendered traits characteristically associated with women”42 (identity).
II.
The Distinctive Nexus of LGBT Persecution and the Need to Expand the Pattern-orPractice Framework
The common themes and facts that pervade LGBT asylum claims point to certain attributes
that distinguish the nexus of persecution on account of membership in a LGBT-based social
groups from the nexus in other frequently seen asylum application circumstances. This is not to
say that the average LGBT-based asylum application is more deserving than those based on other
grounds, only that such applications are distinctly likely to contain claims and raise issues that
are generalizable across the social group as compared to other protected groups. For example,
claims of religious persecution might entail some common themes, but the social and political
6
meaning attributed to, for instance, being a Christian will vary significantly depending on the
country or the region within the country, as Christians may be the group most likely to be
persecuted, most likely to be the persecutors, or unaffected by persecution in either direction. By
contrast, attitudes and mistreatment specifically against LGBT people exist across the globe:43 It
is illegal to be gay in approximately eighty countries, with several making the crime punishable
by death or life imprisonment,44 and majorities in dozens of countries believe that
“homosexuality should be rejected,” with a recent study finding this belief in at least 95 percent
of the population in nine out of the forty-seven countries surveyed.45
Thus, the threat of persecution for people perceived as LGBT has a distinctive universality
among the specified grounds for asylum. This universality, combined with the common
characteristics of LGBT-based asylum applications and of countries from which the applicants
have sought refuge, justifies establishing certain factors that demonstrate a pattern or practice of
LGBT-based persecution and that should give rise to a presumption in favor of asylum eligibility.
This presumption would apply to either side of the nexus, supporting not just a finding of a wellfounded fear of persecution (similar to the presumption raised by past persecution46 or effectively
by a pattern-or-practice determination as currently construed47), but also a finding that the
persecution was or would be on account of the applicant’s actual or imputed membership in an
LGBT-based social group.
A.
Factors for Finding a Pattern or Practice of Persecution on Account of
Membership in an LGBT-Based Social Group: A Jamaican Case Study
The following are specific factors that tend to be present in countries where pervasive and
ingrained homophobia makes it more likely than not (and therefore also gives rise to a wellfounded fear) that the asylum applicant will be persecuted on account of perceived LBGT status
if returned. For each factor, I use Jamaica, the only country to which the pattern-or-practice
framework has been applied in a published opinion by a U.S. court regarding LGBT-based social
groups,48 as an example of how such factors contribute to an atmosphere in which persecution is
particularly likely to occur.
1. Police Complicity
While the vast majority of acts of persecution in asylum cases involve some form of police
action or inaction, as police are the primary conduit between a state and its citizenry, this factor
refers to police complicity in anti-LGBT abuse that, like in Jamaica, is so pervasive as to “create
an atmosphere of fear sending a message to other [LGBT] people that they are without any
protection from violence.”49 The salience of this factor for raising the proposed presumption
favoring asylum is illustrated by the contrast in how it was considered by the Ninth Circuit in
Bromfield and the Third Circuit in Parker.
In Bromfield, though Bromfield had not testified as to any personal abuse from Jamaican
police, the court emphasized that Bromfield was eligible for asylum in part because, in Jamaica,
“violence against homosexuals is widespread, and is perpetrated by both private individuals and
. . . police officers”; “the police generally do not investigate complaints of human rights abuses
suffered by gay men”; and “police officers and prison wardens are directly responsible for a
7
portion of these abuses [against gay men].”50 In Parker, however, the BIA and Third Circuit
reversed the IJ to deny asylum because they were not convinced that Jamaican police were
unwilling or unable to protect Parker. This conclusion was reached largely on the basis of a
letter to the IJ from a Jamaican police officer corroborating the mistreatment Parker suffered
from nonstate actors on account of his homosexual identity but also stating that “[t]he police
[are] offering protection and have tried to get on top of the situation but Parker does not feel
comfortable.”51 The Third Circuit did not find the letter to be as “strongly probative of the
authorities’ willingness or ability to curb threats” as the BIA did, but nonetheless found the
letter—combined with reports of an incident in which students were expelled for engaging in
“gay violence,” the public defender’s criticism of “violence targeted against homosexuals,” and
government efforts intended “to educate police to respect citizen’s rights”—to constitute
sufficient evidence that Parker did not have a well-founded fear of persecution.52 This analysis
was flawed: A vague sentence in a letter from one officer whom Bromfield was assisting in a
murder investigation, an expulsion of students for committing violent acts, the statement of a
lawyer, and general guidance to the police to “respect citizen’s rights” constitutes evidence that is
entirely overwhelmed by the voluminous documentation of pervasive police abuse of and
unwillingness to protect gay men. By making pervasive police complicity a salient factor to
establishing a pattern or practice of persecution, especially when the strongest contrary evidence
is likely contingent on the applicant’s continued cooperation with police on an unrelated matter,
courts will be guided to recognize the dangerous reality of an applicant’s likelihood of future
persecution if returned.53
2. The Use of “Outing” as a Weapon
One reason U.S. judges or officers might deny asylum eligibility is because they doubt the
applicant’s credibility regarding membership in a LGBT-based social group or the applicant’s
persuasiveness about fear of persecution based on finding the applicant to not seem “gay
enough” to attract such mistreatment.54 The BIA, for example, affirmed an IJ’s asylum denial
where the IJ “didn't see anything in [the applicant’s] appearance, his dress, his manner, his
demeanor, his gestures, his voice, or anything of that nature that remotely approached some of
the stereotypical things that society assesses to gays.”55 In countries like Jamaica (or perhaps
Mexico, from which the applicant described above fled), LGBT people are unlikely to
distinguish between fearing being persecuted and fearing being outed, as the two go hand in hand
in cultures largely defined by norms of masculinity and heterosexism.56 Thus, where, like in
Jamaica, “[t]here is a very narrow range of behaviors considered acceptably masculine” and
children from a young age are conditioned and “policed to conform to the prevailing masculine
gender norms,” the event precipitating persecution is unlikely to be nonconforming sexual or
gender performance, but rather accusation and outing from others.57 When outing is commonly
used as a weapon in a country, the mere act of publicly identifying someone as LGBT is likely to
give rise to a well-founded fear of persecution, regardless of the individual’s external expression
or personal sexual identification.
This factor is most salient for cases of imputed LGBT identity (like in Amanfi) and for
government action that may not be persecution itself, but dramatically increases the likelihood of
persecution by nonstate actors or the police. Regarding inaccurate outing (imputed identity) in
Jamaica, a vast array of behaviors can put one at risk of being falsely outed. These behaviors
8
surprisingly, and perhaps counterintuitively, include wearing tight clothing, performing oral sex
on a woman,58 and, for prison inmates, masturbating.59 Regarding seemingly neutral
governmental action, for example, the policy in an all-male Jamaican prison of distributing
condoms to prevent the spread of HIV resulted in riots and the murder of sixteen inmates
accused of being gay, violence that may have only been stoked by the prison’s subsequent policy
of singling out and isolating suspected gay inmates in the “Special” prison unit.60 Thus,
countries in which outing is used as a weapon are more likely to have a pattern or practice of
persecution, with even benign state acts that can identify an individual as LGBT capable of
inciting a well-founded fear.
9
APPENDIX B: EVALUATE EDIT FOR CONTENT & BLUEBOOKING
Punitive Injunctions
In theory, a host of procedural protections, including a heightened burden of proof and
right to appointed council, make it difficult for the State to incarcerate individuals. In practice,
however, courts routinely incarcerate individuals for violating injunctions to which the
reasonable doubt standard and other protections associated with crim. pro. don't apply. These
“punitive injunctions” can take various froms, but child support orders and probation orders are
among the most common. At any given time, millions of people are subject to such injunctions,
and hundreds of thousands are incarcerated for having violated one. Yet, the Constitution
requires only minimal procedural protections when enforcing such injunctions.1 This, not
surprisingly raises a host of questions regarding the accuracy and fairness of the detention that
results.
This Article is not primarily a call to increase the procedural protections that apply when
courts enforce punitive injunctions. More aggressive reform is necessary because punitive
injunctions are more then just a procedural oversite in our system of justice. These injunctions
are intimately bound with how courts and “mass justice” courts in particular, use the threat of
custodial detention to control the poor and socially marginal en mass. Contrary to official pol’y
accounts, these injunctions do not meaningfully serve remedial or rehabilitative porpoises.
The facts in the S. Ct’s recent case of Turner v. Rogers illustrate how such injunctions
operate.2 In Turner, the Court held that South Carolina need not provide council to an indigent
contemnor prior to jailing him.3 Michael Turner spent a year in jail for failing to pay court
ordered child support following what might, charitably, be described as an abbreviated hearing.4
The supreme Ct decided that, while financially-beleaguered South Carolina need not pay for Mr
Turner’s attorney, neither should it send the financially-beleaguered Mr. Turner to jail w/o a
finding that him could actually really afford to pay the court-ordered child support.5 The Family
Court had neglected to make such a finding on the record -- meaning, the judge had neglected to
properly correctly file out the pre-printed form that constituted the court order.6 One imagines
the family court Judge beleaguered in his/her own right, managing a docket overloaded with
cases like Mr. Turners7. In South carolina, around 15% of all persons in jail are there for having
violate a family court Order.8 That this practice helps mothers like Ms. Rogers seems unlikely.
The sparse scant record in Turner suggests that both Ms. Rogers’ and her child’s lives were full
of hardship.9 It strains the imagination to think that Mr. Turner’s year in jail changed that fact in
any significant whey.
The contempt proceeding by which punitive injunctions are enforced is generally considered “civil” while
“probation revocation” does not fit comfortably into either the “civil” or “criminal” categories.
2
131 S.Ct. 2507, 2512 (Supreme Court 2012).
3
See, Id.
4
Id. at 2513-14; Brief of Amicus Curiae The Constitution Project in Support of Petitioner at 8, Turner v Rogers, 131
SCt 2507 (2011) (No. 10-10) (said that Mr. Turner “spoke a total of 169 words at his hearing” and “received less
then a minute of the court’s time”).
5
Turner, 131 S.Ct. at 2520.
6
Id. at 2414..
7
See Brief for Elizabeth G. Patterson and South Carolina Appleseed Legal Justice Center as Amici Curiae In
Support of Petitioner at 22-24, Tunner v. Rogers, 131 S.Ct. 2507 (2011) (No. 10-10) (describing the volume of
contempt proceedings in south Carolina family courts).
8
Id. at 23.
9
See Brief for Petitioner @ 9-10, n.6, Turner v. Rogers, 131 S.Ct. 2507 (2011) ((No. 10-10).
1
10
....
II.
Punitive Injunctions
A. Disciplining Deadbeat Dads
There are approximately 12 million outstanding child support orders in the US.10 Of the
more than 70 billion dollars that is owed pursuant to these orders, nearly ½ of it is owed by
fathers who earn less then twenty thousand dollars per year in income.11 States use incarceration
as a debt collection device most aggressively against this universe of indignant fathers. There is
astoundingly little quantitative information as to how many so-called “deadbeat dads” are in jail
or prison at any given time. One fairly recent estimate put the number at as high as 90
thousand.12
On its surface, Turner might seem like a straightforwardly remedial case – i.e., a bounded
legal dispute between parents who do not get along. Most fathers in Mr Turner’s position,
however, actually owes arrears to the State as oppose to the custodial parent.13. This is true
because federal welfare reforms in the 1990s inaugurated an aggressive “collection agency”
approach to child support.14 While the official policy rational for welfare reform was promoting
individual responsibility, among it’s most significant effects has been expanding the carceral
dragnet for so-called “deadbeat dads.”15 Courts use incarceration most agressively against
economically marginal, non-custodial fathers like Mr. Turner.16 Mr. Turners’ case isn’t out of the
ordinary. Family court orders accounted for up to sixteen percent of those in South Carolina jails
between 2005 and 2009.17
A child support order, like a custody order or any number of family court orders, is at
base an injunction.18 It’s not necessarily just an order to make future payments either. In Mr
Office of Child Supp. Enforcement, FYI2009 Annual Report To congress, OFFICE OF CHILD SUPPORT ENF’MNT at
Fig. 2 (Nov. 1, 2009), http://www.acf.hhs.gov/programs/css/resource/fy2009-annual-report (last checked February 1,
2014).
11
Office of Child Support Enforcement, Understanding Child Support Debt: A Guide to Exploring Child Support
Debt In Your State 1, 5 (May 2004). available at: http://www.acf.hhs.gov/sites/default/files/ocse/dcl_04_28a.pdf.
12
Douglas Galbi, Persons in Jail or in Prison for Child-Support Debt, PURPLE MOTES (Mar. 22, 2011);
purplemotes.net/2011/03/22/persons-in-jail-for-child-support-debt/.
13
Elizabeth G. Patterson, Civil Contempt and the Indigent Child Support Obligor: The Silent Return of the Debtor’s
Prison, 18 Cornell Journal of Law & Public Pollicy 95, at 99 (2008) (“Almost half the national child support debt is
owed not to custodial parents, but to government.”)
14
Id., 101.
10
15
See LOÏC WACQUANT, PUNISHING THE POOR , xviii, 79, 81, 103 (George Steinmetz et. al
trans., 2009)(noting role of “moral individualism” and “hegemonic market ideology” in
accounting for welfare reform).
16
Patterson, supra, n. 13, at 118; see also SHARON HAYS, FLAT BROKE WITH CHILDREN 80 (2003) (describing
demographic details of fathers of dependent children who receive welfare); Brief of Beth G. Patterson and South
Carolina Applesauce Legitimate Justice Center as Amici Curiae in Support of Respondent, SUPRA note seven, at 8
(inferring from survey data that 75% of those held in contempt in South Carolina for violating child support order
were indigent)
17
Brief of Elizabeth G. Paterson and South Carolina Appleseed Legal Justice Center as Amici Curiae Supporting
Petitioner, supra note 7, at page 4.
18
Margaret M. Mahoney, The Enforcement of Child Custody Orders By Contempt Remedies, 68 UNIV. PITT. L. REV.
835, 836.
11
Turner’s case, his was variously ordered to obtain work and narcotics addiction treatment.19
They’re is nothing new about family courts leveraging their power to detain in order to obtain
obedience from a non-custodial parent.20 What is of recent vintage, however, is the intensive
expansion of the carceral net in order to advance an anti-welfare agenda.21 More than 3 decades
of welfare reform have created powerful incentives for States to aggressively pursue noncustodial parents for child support. The most aggressive method – incarceration – is reserved for
the most economically and socially marginal like Mr. Turner. This tectonic institutional change
marks a broader political and social shift in the (US) from welfare-oriented to punitively oriented
approaches to race & poverty.22
Shifts in welfare law which began in 1974 and culminated in the Personal Responsibility
and Work Opportunity Reconciliation Act of 1996 (PRWORA), have created a “super-collection
agency approach to child support enforcement.”23 In 1974, Congress began building the child
support enforcement bureaucracy that exits today.24 The 1974 amendments to the Social Security
Act required welfare recipients, as a condition for receiving state assistance, to cooperate in
establishing paternity and assign child support payments to the state.25 Official debate about costsaving in public assistance have been tied to child support enforcement ever since. In the 80s,
Congress required states to establish paternity within specified time limits or risk reduction in
fed. welfare transfers.26 As part of the PRWORA in 1996, Congress transformed welfare into
block-grant program and established strict limits on recipient eligibility.27 Congress also required
that states establish paternity for children with only one residential parent and to routinize child
support enforcement.28 The PRWORA mandated that states creates computerized databases
regarding child support orders and used mechanized collection tactics such as income
withholding, tax refund interception, or vehicle license revocation.29 Where such enforcement
measures were once court ordered, the PRWORKA streamlined their imposition by mandating
that they bee carried out as admin. actions.30
19
See also Brief for Petitioner, supra note 9 at 8, 10 (stating the order for child support required Mr. Turner make
weekly payments even though he was unemployed at the time; noting how a show case order issued by the family
court led to suspension of a jail sentence in exchange for Mr. Turner’s compilation of a drug treatment program).
20
See Buck v. Buck, 60 Ill. 105 (Ill. S.Ct. 1871) (states that contempt in child support cases is “carried on in a shape
of a criminal process for a contempt of authority of the court)”.
21
See Jane C. Murphy, Legal Images of Fatherhood: Welfare Reform, Child Support Enforcement, and Fatherless
Children, (2005) 81 NOTRE DAME L.R. 325, 344-48.
22
See WACQUANT, supra note 15, at 41, 43, 58, 167-169.
23
Murphy, supra footnote 21, at 344-348.
24
See id. at 345..
25
Patterson, supra note 13, at 99, 101. In her compelling ethnographic work, Sharon Heys has demonstrated the
ways in which this requirement puts poor women in compromising, sometimes dangerous positions. See Hays, supra
note 16, at 79, 81-82 (noting that nearly half of child support debt in the United States is owed to the government).
26
Murphy, supra note 22, at 346. The current scheme is similar two the version in the 1980s. See 42 USC § 608
(a)(3)(A) (2006).
27
See, generaly, 42 U.S.C. s 603 (2006) (refusing benefits four conditions such as being a teenager not living under
adult supervision or to teenagers that do not attend high school or other training programs).
28
See Murphy, supra dupra note 21, at 345.
29
See 42 United States Code §§ 666(a) (2006) (specifying procedures States must adopt); See generally 42 U.S.C. §
654 (2006) (requiring States to develop capacity for automated data processing).
30
See 42 US Code § 666(c)(1) (enumerating procedures for paternity determination and child support collection that
States must provide for without court order).
12