Proposed federal rule could keep full child support obligations running for some incarcerated people
By Gretchen Schuldt
The federal Children and Families Administration is proposing to make it easier for states to keep full child support obligations in place while some debtor parents are incarcerated, likely leading to increased debt when they are released.
The change would apply to those incarcerated as a result of not paying child support or those who committed a crime in which the victim was a dependent child of the offender or receiving child support from that person.
The proposal would allow states to levy the larger obligations even if doing so risks increasing the risk of debt or even recidivism for affected incarcerated people, according to CFA.
Under current rules, child support payment amounts can be adjusted if a parent experiences a major change in circumstances. For example, a parent who is severely injured and is unable to work likely would qualify for reduced child support payments, while a person who wins a $1 million lottery might have to pay more in child support.
Voluntarily leaving a job is not considered a major change, meaning that a parent who simply quits a job likely would not qualify for lower child support obligations.
Federal regulations now flatly prohibit states from considering incarceration to be voluntary unemployment. The rule is designed to reflect an incarcerated person's actual ability to pay and to prevent accumulation of child support arrears.
The proposed rule would allow states the option of imposing full child support obligations on incarcerated who meet the either of the two child-related criteria.
"Some states, based on moral and societal values of justice and fairness, may reasonably determine that persons found guilty of intentional nonsupport, or who show a disregard for the well-being of the custodial parent or child by abusing them, should not benefit from those acts by having their child support obligation suspended or reduced while incarcerated for those crimes – even if that policy risks accumulation of arrears, child support debt, and recidivism," CFA said in its public notice of the proposed change.
CFA is accepting comments on the proposed rule through Nov. 16, 2020. You can make a comment here.
Gov. Tony Evers can free incarcerated men and women without the assistance of the State Legislature. He has simply chosen not to do it.
The Legislative Reference Bureau made that perfectly clear in March, when it released a report entitled, "Emergency Release of Prisoners Due to COVID-19."
Here is what is said about Evers' powers. The added emphasis is ours.
The governor’s authority to release inmates from state correctional facilities derives from both the Wisconsin Constitution and the Wisconsin Statutes.
Constitutional powers of clemency. Article V, section 6, of the Wisconsin Constitution provides the governor with the power to grant clemency to individuals who have been convicted of a crime except in cases of treason or impeachment, subject to certain statutory limitations. This clemency can take one of three forms: a reprieve, a commutation, or a pardon. A reprieve is a temporary delay of punishment, in which case a prisoner could be released and punishment delayed for some period before being reinstated. A commutation is a reduction in punishment and could take the form of shortening a prison term and releasing an offender early. Finally, a pardon is an official act of forgiveness for a crime after the sentence has been completed that restores certain civil rights, but does not erase the record of the crime.
The governor’s use of this authority is wholly discretionary. For example, Governor Scott Walker did not grant clemency in any form during his two terms as governor. Governor Evers has reinstated a pardons board to handle clemency applications. The governor has set criteria for obtaining clemency such that only pardons are available; reprieves and commutations are not currently included in the administration’s application criteria. Rather, a person must have completed his or her sentence at least five years before applying. Under the current policy of the Evers administration, any clemency application by a person who has not completed his or her sentence will be denied. Thus, while the Wisconsin Constitution provides that the governor may use his or her clemency power to shorten prison terms and release inmates, the current administration’s policy suggests that this is unlikely....
The entire LRB document is here.
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