Use of county jail by Smith County for child support scofflaws contributes to overincarceration

Smith County District Judge Carole Clark writes in to the blog Smith Counth: Tell the Truth to explain under what circumstances the county incarcerates probationers for non-payment of child support, a practice the county began in 2002. The optional program puts child support scofflaws on a "civil" probation that uses the county jail to enforce payments. Judge Clark said the program is:

aimed at the thirty percent of the population who do not pay their child support as ordered and for which there had not previously been adequate tools to enforce these obligations. The program uses laws currently in place which allow for people who have been found in contempt for failure to pay child support when able to do so to be on probation. This probation is civil probation but has many of the same requirements as criminal probation. They report to a probation officer regularly, pay a fee to support the program, work and pay their support.

The program began with 100 people and one probation officer. It now has six probation officers and appx. 1100 persons. The history of this program is quite amazing. For many of the persons on probation, working and paying support are new experiences and many owe tens of thousands of dollars in delinquent support.

If someone on probation does not comply with the probation requirements, their probation officer , after attempts to remediate the situation fail, will ask the Office of the Attorney General to file papers with the court requesting the probation be revoked. The maximum jail time is 180 days.

The most common conditions of probation I see violated are reporting to probation and paying the child support. An arrest warrant is issued and when arrested the person is brought to court on a Monday or Thursday afternoon. I see people twice a week as the law requires me to see them quickly.

If after hearing, I find a person did violate their probation and has no reasonable excuse for doing so, some jail time is awarded as a means of "getting their attention." Some of these people are not regulars in the jail and for them, it is usually a "wake up call." For some, unfortunately, jail for violation of probation is a familiar story.

After a time in jail, I call the person over to court and let them go to the AIC for more intensive monitoring. However, a number of these folks violate criminal laws while they are not paying child support and I cannot deal with their case until the criminal case is handled.

If AIC [ed. note: the Alternative Incarceration Program, discussed here] is appropriate, I send them. The results are very gratifying. Many are now working and paying. Last Friday, 149 were in the AIC. Not all are child support. Of those, 110 were working. Many have never worked at a legal job.

If AIC doesn't work, the law provides referral to the DA's office can be made for criminal prosecution for a state jail felony.

All in all, the programs are collecting in excess of 3.5 million dollars per year, plus fees for probation, court costs and child support.

Here's the problem: It costs more than $6,000 to incarcerate someone in the Smith County Jail for 180 days, more than $7,000 if they're housed in rented beds. So if the county jail handles a significant volume of extra inmates revoked under this "civil probation," there's an extra cost to the taxpayers in addition to the benefits to child support recipients.

If prosecutors put scofflaws behind bars for a state jail felony, that's a mandatory two-year sentence at an additional cost to taxpayers of $32,000. The county doesn't pay that money, but taxes paid by Smith County residents sure do, and it doesn't matter to the taxpayer, at the end of the day, which governmental hand is in their pocket.

Judge Clark's rendition of the process has her using jail to "get the attention" of civil probation violators the very first time they fail to meet their obligations and come before their court. I'm sure that does get their attention, but it's a big contributing factor to local jail overcrowding, and it's a lot more aggressive approach than other counties take with the same population. After all, if you incarcerate a person for any significant period of time, they leave jail unemployed and with no income to make child support payments.

It makes a lot more sense to use the AIC to keep these folks employed than in jail, even if the county has to pay their wages. Think about it: Is it worth up to $40,000 to the taxpayers to force compliance with child support payments that wouldn't come close to that amount over the same period? If you're going to do that, a cheaper approach might be for the county to just pay the child support and place a lien on future income.

I commend Judge Clark for explaining the program to a local blog, and recognize the good intentions behind the use of the county jail in this fashion - but they are the type of intentions with which the road to hell is paved, as these offenders have become a significant contributor to local jail overcrowding. Now that the AIC is in place (it wasn't when the program started), it should be the first-line sentence for these offenders instead of requiring "get attention" jail time. And given the cost of incarceration, it would behoove the county to create public works jobs, WPA style, compared to the cost of incarcerating those same folks.

This is a great example of how much of the overincarceration in Smith and other counties is mostly volitional, based on choices made by elected officials, not on population increases or big-picture demographics.

Getting people to pay child support is smart. Filling up Texas jails and prisons with non-criminals isn't. There has to be a way to achieve goals in civil society without only ever resorting to incarceration as a stick to compel behaviors we want.

RELATED: See "Greg Abbott's Cash for Kids," from the Austin Chronicle.