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More Shocking Data: Do Some Massachusetts Probate and Family Court Judges Incarcerate Men at Excessive Rates?

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March 21st, 2013 by Ned Holstein, MD, MS, Founder and Chairman of the Board
Incarcerations of Men vs. Women in Massachusetts


Last week, we reported the data gathered by Fathers and Families member Terry Brennan on the number of men and women incarcerated from Massachusetts Probate and Family Courts for incomplete payment of child support. We found that 95% to 98.5% of those incarcerated in Massachusetts for this violation from 2001 through 2011 were men.

I then took Terry’s data and compared it to national data on rates of child support payment. I found that mothers in arrears are incarcerated at lower rates even though they have higher rates of incomplete payment, pay a smaller percentage of their child support order, and have larger arrears than fathers. In fact, mothers with child support arrears in Massachusetts are incarcerated at approximately one-eighth of the rate that would be justified by their numbers if fathers and mothers in arrears were treated equally.

I am not aware that comparable data have been obtained and published anywhere else in the United States. If anyone knows of such data elsewhere, I would be eager to see it.

These analyses constitute strong evidence, although not absolute proof, of strong gender bias in the incarceration of parents who are behind on their child support payments.

Widely Variable Rates of Incarceration by County: Summary

This week, I take a look at whether the rates at which men are incarcerated from the Probate and Family Courts in Massachusetts are reasonably uniform, or whether they vary dramatically from county to county. My findings: there are extremely wide variations in the incarceration rates from one county to the next.

These results strongly suggest, but do not absolutely prove, that some judges recklessly order far more incarcerations than others, or than are proper. In one comparison, the incarceration rate was eighteen times greater in Plymouth County than in Essex County! The wide differences from one county to another in incarceration rates cannot be explained by differences in median household income, county population, number of contempt cases heard, or number of probate and family court judges.

For all three years I looked at (2009-2011), by any measure I used, Plymouth County had the highest rates of incarceration except in one measure in one year, usually by a large margin, and Essex County always had the lowest rates of incarceration. Plymouth County, which stands out in this analysis, incarcerated men at rates relative to their population of 3 to 4.5 times the average rate for all of Massachusetts. Berkshire and Barnstable counties also had consistently high rates by every measure, while Essex and Hampshire counties consistently ranked low. The complete analysis can be found HERE.

Because there are only a few probate and family court judges in most counties, these data strongly suggest, but do not absolutely prove, that individual judges have widely differing rates of incarceration, and that these variations cannot be accounted for by median household income, population, number of judges, or number of contempt cases of the counties. For example, Berkshire County has only one sitting Probate and Family Court Judge, yet consistently ranked high in incarceration rates compared to other counties. Assuming that most of the time one particular judge sat on the bench rather than a rotating band of judges, the numbers suggest this judge is much quicker to incarcerate than his/her peers.

In More Detail

To analyze this information, I began with Terry Brennan’s data on the number of men incarcerated from Massachusetts Probate and Family Courts per year, broken down by county. He also collected the number of contempt cases that were heard each year in each county. I then researched the median household income, the population, and the number of Probate and Family Court judges by county, and correlated these with Terry’s data.

I analyzed the information for men only, because too few women have been incarcerated to allow meaningful or statistically stable comparisons between counties. I eliminated Hampden, Bristol, Worcester, and Nantucket counties because these jurisdictions had been either unwilling or unable to provide the incarceration data to Terry. I also eliminated from the analysis any county that had incarcerated five or fewer men in a year in order to avoid statistical instability from low numbers. This eliminated Franklin and Dukes County from the analyses. This left eight counties for analysis.

Incarcerations relative to county population

I first looked at the number of men incarcerated compared to the population of each county. (See HERE for ten detailed tables of analysis.) The results in 2011 ranged from a high of 0.28 incarcerations of men per 1,000 people in Plymouth County to a low of 0.02 in Essex County, a fourteen-fold difference! The mean rate throughout all fourteen counties in Massachusetts was 0.07 incarcerations per 1,000 people. Thus, Plymouth County had an incarceration rate of men four times higher than the average rate for all of Massachusetts! Other high counties included Berkshire (0.23 per 1,000) and Barnstable (0.20 per 1,000).
In 2010, the highest rate of incarceration was again in Plymouth County, where the rate was eighteen times higher than in the lowest county, Essex! In 2009, Plymouth and Essex again showed the highest and lowest rates of incarceration respectively, with a ratio of 9 to 1. (See Summary Table below.)

Effect of median household income

One might expect the highest rates of incarceration for incomplete child support payment to come from the poorest counties, since inability to pay has been found repeatedly in many studies to be the primary factor in incomplete payment. On the other hand, one might expect the highest rates to come from wealthy counties, since wealthy counties would have higher child support orders on average, and therefore might have higher dollar amounts of arrearages. Since Massachusetts is reimbursed by the federal government with incentive payments based in part on how many dollars they collect, this could provide an incentive to incarcerate wealthier fathers who owe more, as opposed to poorer fathers who owe little.

Neither of these economic hypotheses is supported by the data. The highest rate of incarceration comes from Plymouth County, which has the fourth highest median household income among all fourteen counties in Massachusetts. The next two highest rates of incarceration in 2011 come from Berkshire County (the lowest median household income in Massachusetts) and Barnstable County (right in the middle of the pack). Median household income does not predict incarceration rates.

Average number of incarcerations per judge

I analyzed the average number of incarcerations of men per Probate and Family Court judge in each county. Once again, widely different rates of incarceration are found. In 2011, for instance, Berkshire County incarcerated 30 men per Probate and Family Court judge, while Essex County incarcerated only four men per family court judge. In other words, the one sitting judge in Berkshire County incarcerated 7.5 times as many men on average as did the average of four sitting Probate and Family Court judges in Essex County. In 2010 and 2009, the highest number of incarcerations per Probate and Family Court judge occurred in Plymouth County, and the lowest numbers again occurred in Essex County. The ratios between highest and lowest were 9 to 1 in 2010, and 4.5 to 1 in 2009.

Average number of incarcerations per contempt of court case

Finally, I used Terry Brennan’s data on number of contempt cases heard in each county, and the number of men incarcerated relative to the number of contempt cases. Once again, in all three years examined, Plymouth County had the most incarcerations per contempt hearing, while Essex County had the lowest number of incarcerations per contempt case heard. The ratios between the incarceration rates in the highest county (Plymouth) and the lowest county (Essex) in 2009, 2010, and 2011 were 8 to 1, 10 to 1, and 7 to 1 respectively.

Summary and Discussion

In summary, incarceration rates of men by county from Massachusetts Probate and Family Courts were analyzed in 2009, 2010, and 2011 in relationship to county median household income, population, number of Probate and Family Court judges, and number of contempt cases heard. Plymouth County consistently showed the highest incarceration rates of men by every measure in every year except one, sometimes by a substantial margin. Berkshire and Barnstable counties also ranked high in most years by most measures. Essex and Hampshire counties usually ranked low by most measures in most years.

What is the correct incarceration rate? There is no question whatsoever that some men who have the ability to pay their child support orders consciously refuse to do so. Incarceration is both proper and fair in many (but not all) such cases.

On the other hand, federal data shows that 70% of all overdue child support dollars are due from people who earn less than $10,000 per year. In other words, incomplete payment of child support is largely a problem of poverty—while poor women and children need child support, they can’t get it from men who earn less than $10,000 per year, and no amount of incarceration will squeeze blood out of a stone.

Even in the middle class, a significant percentage of non-payment is due to simple inability to pay. The Massachusetts Child Support Guidelines produce very high child support orders, as we have shown previously. Thus, middle class and poor payers in Massachusetts have their financial backs against the wall even when fully employed. Any small event can push them under. Loss of a job, a small decrease in income (for instance, decreases in overtime, commissions, or bonuses), or an unexpected expense such as a hospitalization immediately puts them behind on child support. In many such cases, these fathers have paid over 90% of the total amount they were required to pay over the years, but are in danger of incarceration because a current financial crisis has caused them to fall a few percent short of their total lifetime obligation.

Even prior to the drastic increase in the Guidelines in January, 2009, researcher Sanford Braver found that for most combinations of father/mother income, the standard of living of the custodial parent in Massachusetts was “dramatically” higher than that of the non-custodial parent after payment of taxes and payment or receipt of child support. Since child support orders were raised very substantially in 2009, these “dramatic” differences in standard of living are now even worse. Thus, like the poor, many middle class cases of child support arrears are also due simply to the inability to pay.

Judges tend to take a cynical view of child support payers who claim inability to pay. They find that, except for the very poor, when they incarcerate these people (mostly fathers), payments magically appear a few days later. They attribute this to either hidden income or hidden assets. While this is true in many cases, our experience suggest that in many other cases, the payments come from desperate parents, siblings, aunts, uncles, and friends of the incarcerated father.

Judges tend to take a cynical view of child support payers who claim inability to pay. They find that, except for the very poor, when they incarcerate these people (mostly fathers), payments magically appear a few days later. They attribute this to either hidden income or hidden assets. While this is true in many cases, our experience suggest that in many other cases, the payments come from desperate parents, siblings, aunts, uncles, and friends of the incarcerated father.

Based on these factors, my personal opinion is that the “correct” incarceration rate is somewhere near the lower end of the observed spectrum, not at the high end. In most cases, the ability to pay is simply not present, and incarceration will not magically cure this problem. We do not incarcerate people for any other form of debt in America. Moreover, we have a constitutional amendment that prohibits incarceration for debt. Calling the offense “contempt of court” rather than “indebtedness” is simply a fig leaf that obscures the truth.

Fathers and Families firmly believes that children need to be supported by both parents, and that incarceration is sometimes necessary. But there are many reasons to suspect that many judges carry an ironclad attitude of “Pay No Matter What.” Now this suspicion is greatly strengthened by the data presented above. This data suggests that certain judges in Massachusetts are abusing their discretion and recklessly incarcerating fathers at rates five to eighteen times greater than other judges, and three to four times greater than the overall average in Massachusetts. We call on the Chief Justice of the Probate and Family Court to conduct a judge-by-judge analysis of incarceration rates to determine whether this is true, and to publish the results, indicating the names of the judges. This study should also include a properly selected sample of cases to be studied in detail to determine whether incarceration was warranted and whether it was useful to the child in light of all the facts and circumstances. Is it too much to ask that a study of this sort be done given that around 700 fathers per year (taking into account the four counties that did not provide data) are incarcerated for debt without trial by jury, rules of evidence, rules of procedure, and often without legal representation?

Ratio of Highest to Lowest Incarceration Rates of Men From Massachusetts Probate and Family Courts
Men Incarcerated per 1,000 People
Men Incarcerated Per Contempt Case
Men Incarcerated Per Probate and Family Court Judge
2009
9
8
4.5
Highest: Plymouth
Highest: Plymouth
Highest: Plymouth
Lowest: Essex
Lowest: Essex
Lowest: Essex
2010
18
10
9
Highest: Plymouth
Highest: Plymouth
Highest: Plymouth
Lowest: Essex
Lowest: Essex
Lowest: Essex
2011
14
7
7.5
Highest: Plymouth
Highest: Plymouth
Highest: Berkshire
Lowest: Essex
Lowest: Essex
Lowest: Essex
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