Factoring in Family: Considerations of Parenthood in the Assessment, Enforcement, and Collection of Legal Financial Obligations (LFOs)

Abstract

Prior research has yet to address how criminal legal system actors take parenthood into account when imposing and enforcing LFOs. Drawing on evidence from 205 semi-structured interviews conducted across four states, this study explores the relationship between monetary punishment and parenthood from the perspectives of court and community corrections professionals. Engaging Kathleen Daly’s framework of familial paternalism (1987a, 1987b, 1989a, 1989b), we find that system actors obtain and interpret information about defendant circumstances to (1) consider family complexity, (2) construct deservingness and (3) curb spill-over punishment. Ultimately, we find that system actors consider parental status in relation to LFOs and defendants’ ability to pay, though their decisions also hinge on gender and the nature of parental involvement.

INTRODUCTION

Internationally, legal financial obligations (LFOs) are the most common form of sanction imposed across most criminal jurisdictions (O’Malley 2010). Such penalties pose various challenges for individuals involved in criminal legal systems beyond (Bögelein 2018; Todd-Kvam 2019; van Beek et al. 2021) and especially within the United States (Harris 2016). Of the millions of people in the United States with LFOs—fines, fees, restitution and other costs resulting from criminal justice contact—most endure economic insecurity (Colgan 2017) and a sizable share are parents supporting dependent children (Harris et al. 2010; 2017b). Emerging research suggests that monetary sanctions tend to compound disadvantages among defendants with children. People who fail to comply with LFOs experience prolonged system involvement, incarceration and other penalties (Bannon et al. 2010; Harris 2016; Martin et al. 2022; Slavinski and Spencer-Suarez 2021). For low-income parents, unpaid LFOs present an acute problem, as owing money to the court and correctional systems can make it difficult to provide food, shelter and other basic necessities for their children (Harris et al. 2010; 2017b). Such material hardship, along with incarceration for non-payment, may lead to punitive state interventions that extend beyond the criminal legal sphere, through child welfare interventions (Bell et al. 2020) and child support enforcement (Haney 2018).

Considering the ramifications of LFOs for socioeconomically marginalized parents, it is important to determine whether the system actors who impose and enforce monetary sanctions take the family status of obligors into account. Sentencing research provides evidence that defendants’ familial ties do have some bearing on how judges and other institutional authorities exercise discretion (e.g., Daly 1987a, 1987b, 1989a, 1989b). Much of this work is situated within a wider literature exploring gender dynamics and disparities in sentencing, and as such, defendants’ parental roles are typically examined through gendered frameworks (Pierce 2013). However, most empirical insights about how parents fare upon receiving LFOs have emerged as tangential findings in studies of criminal legal debt (Harris et al. 2010; 2011), and, thus, the potential impact of parental status and parent gender on the administration of LFOs remains largely unexplored.

Building on prior research addressing sentencing disparities, monetary sanctions and inequality, the present study uses data from 205 semi-structured interviews with judges, attorneys, court clerks and probation officers¹ gathered across multiple field sites in each of four US states—Georgia, Minnesota, Missouri and New York—to examine how system-involved individuals’ family roles figure into the assessment and enforcement of LFOs. In our interpretation of these dynamics, we use the theoretical framework of familial paternalism to explore how system actors consider a defendant’s familial obligations as they administer monetary sanctions.

BACKGROUND

Monetary punishment and parenthood

Research on monetary sanctions and family life primarily frame LFOs as a source of strain. Prior work demonstrates how debt burdens spill outward to be shouldered by defendants’ loved ones, leading to financial and interpersonal stress (Nagrecha et al. 2015; Pleggenkuhle 2018). Obligors who make efforts to pay their fines and fees often struggle to support their families (Harris et al. 2010; Pleggenkuhle 2018). Moreover, some system actors bully defendants into seeking money from all potential sources, and threats of incarceration for non-payment may be leveraged to induce payment from families (Boches et al. 2022).

Though scholars have started to examine how court and community corrections officials regard defendants’ families as resources from which LFO payments can be extracted (Boches et al. 2022), the literature says little about system actors’ consideration of defendants’ dependent children. Researchers from this study find that system actors will coerce LFO payments from family members who are not system involved; however, there was no discussion of whether the system involved people were parents themselves. This is a significant empirical blindspot, given indicators that a considerable proportion of those who carry criminal legal debt are parents and, further, that they tend to be economically disadvantaged. For example, in one study, most participants interviewed about the effects of their LFOs reported being responsible for supporting minor-aged children while living under adverse social and financial circumstances (Harris et al. 2010: 1777). Harris et al. (2011) note that, in the aggregate, men are assessed fines and fees in greater amounts than women. They suggest that this may be partly explained by the leniency afforded to defendants caring for dependent children, but the researchers do not go any further into this discussion or explicitly discuss how their findings support this claim. We extend this body of research by centering parenthood in our analysis, thus exploring system actors’ perspectives on how defendants’ family roles bear upon their approaches to handling monetary punishments.

LFOs and indigent defendants

Many people assessed LFOs, including parents, experience difficulty paying these burdens (Harris et al. 2010; Pleggenkuhle 2018). Indigent defendants, such as parents struggling to make ends meet, may seek relief from monies owed by requesting that the court evaluate their financial capacity. Further, local governments are constitutionally prohibited from locking up nonpayers without formally establishing that their non-compliance is ‘willful’, per the United States Supreme Court’s ruling in Bearden v. Georgia (1983). Yet, evidence shows that courts seldom hold hearings to determine the ability to pay (Menendez et al. 2019). Financial hardship proceedings, indigency waivers and other accommodations tend to be granted in a manner that is at best haphazard and is constrained by ‘underinclusive definition[s] of indigency’ (Zhen 2019: 203; see also Slavinski and Spencer 2021). Consequently, the courts will often treat defendants who are simply unable to meet their obligations as ‘willful’ nonpayers, exposing them to the threat of incarceration and other sanctions, including additional fines or fees (i.e., ‘poverty penalties’).

Interpreting non-compliance as willful not only obstructs defendants’ access to much-needed relief but also ‘legitmize[s] their perpetual indebtedness’ by constructing non-payment as a failure of personal and moral responsibility (Fernandes et al. 2022: 83). This resembles other ways the state disciplines the poor and poor families in particular. The inability to meet material obligations often results in sanctions, surveillance and stigmatization, for instance, through processes carried out by child welfare agencies and child support enforcement (Cammett 2014; Bell et al. 2020). Such disciplining of the poor, and especially poor families, goes hand in hand with pathologizing, often racialized stereotypes, like those of the ‘welfare queen’ and the ‘deadbeat dad’ (Cammett 2014). Monetary sanctions present yet another mechanism of state authority that disproportionately targets and adversely affects the poor.

FAMILIAL PATERNALISM, GENDER AND SENTENCING DISPARITIES

In her work conceptualizing familial paternalism, Daly (1987a) explores the factors legal actors consider when determining sentencing outcomes. Across multiple studies, Daly (1987a,1987b, 1989a, 1989b) finds that court actors often pay attention to parental status when forming judgments about defendants and determining sentences. However, court actors explicitly focused on the in versus out when asked about sentencing decisions, and this meant that they predominately discussed their decision-making in cases where a defendant would receive jail time or probation (1987a). In a later piece (1989b), Daly discussed how judges assumed that sentencing meant sentencing to jail or not where a prior record was the most frequent factor unless the offense was violent or serious. A limitation of Daly’s studies is that they do not explicitly focus on system actors’ decisions around sentencing, enforcing and collecting LFOs.

In addition, court actors across Daly’s studies (Daly 1987a, 1987b, 1989a, 1989b) interpret women’s familial labour ‘more essential than economic support in maintaining families’ and thus mothers tend to receive more lenient sentences than fathers. System actors utilize gender stereotypes, namely the father/breadwinner and mother/caregiver dichotomy when discussing leniency in sentencing decisions (Daly 1987a, 1987b, 1989a, 1989b; Gathings and Parotta 2013). There also was a dichotomy between familied defendants and non-familied defendants, where court actors assumed that familied women would fulfil their caregiver obligations more responsibly (Daly, 1987a, 279).

Other studies beyond Daly’s research also find patterns of women eliciting greater leniency than men emerge in numerous studies of differential sentencing outcomes by gender (e.g., Doerner and Demuth 2014; Freiburger and Romain 2018). Though extant research yields mixed findings (e.g., Tasca et al. 2019), some studies show that women with dependent children receive more favourable treatment in the courts than women without children (Koons-Witt 2002) and men with dependent children (Bickle and Peterson 1991). Daly (1989a) proposes that defendants’ family circumstances can explain gender disparities in sentencing outcomes, showing that the increased likelihood that men will be sentenced to incarceration compared to women is mediated by family ties (e.g., financial support). Thus, having dependent children can mitigate severity in sentencing outcomes, an effect which appears to convey an inclination among system actors to protect the interests of those children.

CURRENT STUDY

Defendants’ parental status appears to be a key factor with regard to ability to pay, non-payment consequences and gender disparities in LFOs (Harris et al. 2011; Pleggenkuhle 2018). Yet, to date, minimal attention has been paid to the way system actors weigh parenthood during the assessment, enforcement and collection of LFOs. Guided by the framework of familial paternalism, the current study analyses interviews in which system actors discuss their perspectives and professional experiences related to parents owing criminal legal debt. Criminal legal debt includes fines, fees, restitution and other costs resulting from criminal legal contact. Amongst the topics discussed were participants’ attitudes and enactments of leniency; that is, under what conditions or for whom they would make adjustments (e.g., waivers, reductions, payment alternatives or extensions). In order to develop an understanding of family status as an element in decision-making, we primarily focus on circumstances in which judges and other actors may exercise at least some degree of discretion.

DATA AND METHODS

Research site selections

This analysis utilizes data from four states included in a larger, multi-phase study of LFOs: Georgia, Minnesota, Missouri and New York (Harris et al. 2017a, 2022). We selected these states for both geographic and control regime diversity (Phelps 2017). Our sites also differ from one another in their respective statutes concerning maximum fines for felonies, fees for public defense, community service alternatives to LFOs, incarceration for willful non-payment and voting restrictions on criminal legal debtors (Harris 2016). Finally, we chose these states for variation in their processes of determining indigency and the degree to which judges’ discretionary authority permits leniency in the sentencing of LFOs. Each has its own statutory guidelines regarding ability to pay determinations and which LFOs can be lessened or waived. In Georgia, recently enacted policy stipulates that if a defendant is determined to be at serious risk of financial hardship, the court must waive, reduce or convert LFOs to community service (Shannon, 2020). Minnesota law provides that the court may reduce a fine to no less than $50 if the defendant qualifies for a public defender, is deemed indigent, or if it is established that payment to the courts would create hardship (Harris et al. 2017a). Missouri state law directs the courts to consider the financial resources of a defendant when making judgments regarding LFOs (Harris et al. 2017a). Given statutory requirements in New York State, system actors’ discretionary authority is mostly limited to the post-sentencing phase (e.g., payment extensions) (Harris et al. 2017a; Friedman et al. 2022).

Interview data

We utilize semi-structured interview data drawn from a broader study of LFOs policies and practices across eight states (Harris et al. 2017a; 2017b). Interviews were conducted with judges, attorneys, clerks and probation officers in multiple regions in each state.²Table 1 shows the distribution of participants by state and occupation. In each state, we purposely selected diverse field sites, carrying out data collection in urban, rural and suburban jurisdictions with varying racial, socioeconomic and political compositions (Harris et al. 2017a). In Georgia, 50 system actors across 6 field sites participated in interviews. About 64 system actors in Minnesota were interviewed across 6 field sites. In Missouri, 47 system actors were interviewed across 7 field sites. Finally, the 44 interview participants in New York were spread across 11 field sites.

Table 1.

Interview sample, criminal legal system actors by job title

Job title	GA	MN	MO	NY	Total	Percent
Defense attorney	10	21	8	19	58	28.43
Prosecutor	6	17	4	4	31	15.20
Judge	16	11	14	12	53	25.98
Clerk	7	6	8	9	30	14.71
Probation officer	11	9	12	0	32	15.68
Total	50	64	46	44	204	100.00

At each site, researchers developed relationships with court personnel and, when feasible, relevant agencies outside the court setting (e.g., service provider organizations, community supervision offices). While conducting fieldwork in the courts, researchers solicited system actors for interviews, often during breaks between court sessions and immediately after sessions ended. Researchers also sent emails to solicit participation and, in some cases, used a snowball sampling approach, seeking referrals from those who agreed to be interviewed. As observed by Atkinson and Flint (2001), this strategy of recruiting participants at multiple population entry points increases sample diversity and reduces the potential for selection bias. Interviews took place in various settings, usually in and around the courthouse (e.g., judges’ chambers, public defenders’ offices, court cafeterias), and were approximately one hour in duration.

During interviews, we asked participants to discuss defendant circumstances, behaviours and attributes that might garner leniency in the form of reductions, waivers, extensions and payment alternatives. We did not explicitly inquire about characteristics or conditions that may elicit more punitive treatment, though responses did at times veer in this direction. Questions included, for instance: ‘Could you walk us through the process of how someone is ordered to pay fines, surcharges, and fees?’; ‘What kinds of information are you asking about in terms of determining someone’s ability to pay?’ and, ‘Do you feel like the characteristics of the defendant affect the fines and fees they are assessed?’

Regarding demographic characteristics (see Appendix), most participants (79%) identified as white. This is broadly consistent with demographic data on state and federal judiciaries (George and Yoon 2017; Federal Judicial Center 2020). Judiciaries are much less diverse than general populations (i.e., white and male overrepresentation) (George and Yoon 2017). Among participants who specified their gender, men outnumbered women (51% versus 43%). Mean reported ages of participants were 59 years for judges, 48 years for prosecutors, 47 years for probation officers and 43 years for both defense attorneys and court clerks.

Coding

Interviews were audio recorded, transcribed and imported into the qualitative software program NVivo. The first round of analysis consisted of open coding. Each of the eight state-based research teams in the Multi-State Study of LFOs developed a set of preliminary codes, which were then compiled by the Washington State team. Next, researchers refined the codebook through group discussions and interrater reliability testing. Following a series of revisions, researchers used the final codebook to analyse their respective states’ interview data. In the current study, we reanalysed coded interview transcripts from the four selected states. Using the sensitizing concept of ‘parenthood’ as the foundation of our analysis (Blumer 1954), we reviewed all passages linked in the prior coding phase to a subset of codes relevant to the present study. After narrowing our data across these nodes in NVivo, we carried out an additional analytic phase, following the procedures of thematic coding and writing memos to develop themes (Charmaz 2014). While engaging in each phase of analysis, we did not find any patterns within system actor groups across states, instead we found that discussions of parenthood and LFOs were consistent across and between positions for our sample.

FINDINGS

This study centres on the perceptions, attitudes and priorities of system actors as they relate to LFOs sentencing and post-sentencing processes. We examined how judges, attorneys, court clerks and probation officers form judgments about parent-defendants assessed LFOs, and how they described their approaches to handling these cases. How do these actors consider defendants’ parental obligations alongside their ability to pay fines and fees? How do these assessments affect how they carry out their professional duties and exercise discretion in the sentencing and enforcement of LFOs? Three interrelated themes emerged from this analysis, which we refer to as ‘the three C’s’ of system actor responses to defendant parental status.

Considering family complexity

First, considering family complexity describes the emphasis that system actors place on the size and composition of defendants’ families. These factors came up routinely during interviews; however, we observed divergence in how participants framed them. To some, multi-partner fertility (i.e., having children with multiple partners) and the number of children one has represented crucial background information that must be incorporated into the assessment of a defendant’s ability to pay. On the other hand, some either dismissed these factors or noted them while disparaging certain types of defendants.

The frequency of participants’ discussions around defendants’ number of children was particularly notable since this was not always an established evaluative criterion by each state’s criminal legal system. For instance, a probation officer in Minnesota stated that, while children are taken into account during LFOs enforcement, ‘it’s not in writing anywhere that’s a consideration’. Yet elsewhere, as in Missouri, formal assessments do ask for specification of the defendant’s number of children. Multiple participants in Missouri noted that this appears on the application for indigent defense, including a judge who explained, ‘I just ask them what their income is because they’ve already filled out a statement for the public defender…how many kids they have and how many dependents they have in the household…’

Over half of our participants mentioned real or hypothetical numbers of children when describing defendants’ challenging socioeconomic circumstances, and when explaining how system actors attempt to reconcile defendants’ personal obligations with the financial obligations imposed on them. When asked how defendants’ financial capacity is assessed, a Missouri probation officer replied:

The court would have to establish that the person is employed, has income from that employment that exceeds their expenses. For example, the mom who’s cleaning houses and trying to raise five kids--you’re never going to get to that standard.

A court clerk in New York offered a similar response regarding ability to pay factors, which include ‘their income. “I’m not working right now…I’ve been incarcerated so I lost my job. You know, I have six kids at home”’.

Interviews suggested that family size plays into discretionary LFOs processes—decisions on fine amounts, alternatives to payment, and so forth—in ways both routine and individualized. Whereas some states formally inquire as to how many children a defendant has, whether they have children with multiple partners only emerged in system actor discussions as a subjective, tacit consideration. At times, participants alluded to multi-partner fertility when describing some of the complicated situations that defendants have to navigate concurrently with criminal legal involvement and debt. For instance, a defense attorney in Minnesota explained, ‘A lot of times, with females, you’ve got multiple kids from multiple dads, there [has] been child protection involvement. It’s an ugly situation’. This statement also illustrates how system actors tended to focus on the strains experienced by mothers, as opposed to the more cynical stance taken toward fathers. That being said, participants did sometimes express concern about the implications of family complexity for fathers’ ability to pay LFOs, usually drawing connections to child support obligations. A judge in Georgia offered the following statement:

Well, the child support would be [a factor]. Oftentimes that will come more from the defendant [rather] than the attorney. He’ll say, ‘Oh, baby’s mama is coming after me in court’. ‘Well, let’s prioritize that… You’re going to need to deal with that’. But that’s of the same vein [as] if you’ve got three kids. Sometimes the way it comes up, that the person has three kids, is, ‘I owe my babies’ mamas’. It’s often plural, a lot of money. That, to me, is compelling.

Many participants talked about family complexity and its constituent elements in a manner that implied a degree of conscientious concern about defendants’ socioeconomic and personal circumstances. Occasionally, participants mentioned family size or defendant ties to multiple co-parents only to wave them off as irrelevant, or to describe other system actors doing so. Characterizing a typical discussion about a defendant’s ability to pay, one Minnesota prosecutor said, ‘It’s always stuff. “I’ve got six kids,” or, “I’m in between jobs”…all kinds of excuses’.

At times, participants’ views went beyond minimizing concerns about complex familial circumstances and descended into ridicule. A former prosecutor and current defense attorney from Georgia made a handful of negative remarks, for example, ‘They’ve always got a boatload of dependents, no income. You know, 50 more kids on the way. They don’t have a job, but they know how to procreate. I don’t give a shit.” He later added:

If you’re truly indigent, you ain’t going to have any money, then … you’re going to start hemming and hawing, a’ boo-hoo and a’ belly-aching. Of course, you can probably do that with a new phone, new hair, new nail extensions, and pregnant again.

While the level of contempt that this individual expressed for defendants was unique among participants, other participants did distort defendants’ family circumstances (e.g., ‘he’s got 97 kids, 3 wives’). In all, these interviews demonstrate how some system actors views of system-involved people’s familial status can contribute to outcomes that reinforce underlying structures of inequality.

Constructing deservingness

Second, constructing deservingness covers the explicit and implicit criteria that guide system actors’ informal judgments of defendants and formal actions when handling their cases. In addition to demonstrating economic hardship and efforts to comply with court orders, about 28% of our sample discussed how familied defendants are expected to demonstrate a moral commitment to fulfilling their parental responsibilities if they are to be considered worthy of accommodating treatment by the court or community corrections.

When institutional players have leeway to take actions not predetermined by statute—for instance, setting discretionary fines rather than mandatory surcharges—individual decision-making takes on a great deal of importance. In such circumstances, statutory guidelines remain in force though they may be less rigid, permitting system actors to exercise their own judgment in applying them to individual cases. Our interview data suggest that this is true of ability-to-pay determinations, granting of waivers and reductions, among other decisions concerning leniency in the assessment and enforcement of LFOs. These decision-making processes involve, both explicitly and implicitly, appraisals of defendants’ deservingness. Participants related a number of elements on which these decisions turn, including expectations that defendants demonstrate efforts to comply with LFOs and other court orders, that they comport themselves in a manner deemed appropriate during court proceedings and other interactions with authorities (Clair 2020), and that they show clear, documented evidence of financial incapacity if they are seeking adjustments to their LFOs. For example, a probation officer indicated that the probation office will work with individuals based on their circumstances. The probation officer then discussed a case they are currently working:

I have a female that’s on my caseload right now that her daughters’ had two open heart surgeries. She’s an infant, so we work with them. We’ll make sure we’ll give them time until they can actually start paying their fines and fees. I don’t think she’s actually had to make a payment for the past six months.

With families-defendants, participants put forth an additional, distinctly moral criterion: parental responsibility. In other words, parents who were perceived as deserving leniency from the court or community supervision were those that maintained a firm commitment to providing and caring for their dependent children.

According to system actors, parental status decontextualized from specific family circumstances does not reveal much about whether a defendant has the ability to pay LFOs, nor about whether they are worthy of leniency. A system-involved parent achieves deservingness in the eyes of the court by engaging in parental labour and/or financial support, not by simply having children. Replying to a question about the specific types of information the court uses when making such an assessment, a Georgia judge answered:

Kids, I focus on that. The discussion is, ‘I appreciate you have five kids, but how often do you see them? Do you support them?’ ‘Actually my kids are in Tennessee’. ‘All right, then that’s not a basis to say to me don’t make me pay X, Y, or Z’.

This focus on demonstrating deservingness by supporting one’s children, and not through parental status itself, emerged repeatedly during interviews. And when these statements concerned fathers, more often than not, child support became the primary metric. Take, for instance, the following passage in which a Missouri probation officer explained that noncustodial fathers must provide proof that they are paying child support in order for probation to ‘work with [them]’. Asked how often they inquire about ability to pay, the participant replied:

Everyday. When they enroll in the program, that’s what we would do. And if a guy said he’s paying child support for 12 kids, we need verification of it, and then we will work with the individual.

A Minnesota judge similarly emphasized child support payment:

We have a [process] … where not in a criminal case, but in a civil case, you could qualify for a court filing fee waiver. And so, I’ve signed a lot of those in my career, so I’m mindful that someone might have a job making $15 an hour. I might fine them $75, but [if] they have seven kids, I might not fine them $75 … I mean, we might have a guy that has 12 kids, but he’s never lived with them or paid a nickel in child support.

Here, the judge depicted a common scenario, in which a low-income individual with multiple children might, on the basis of need and deservingness, receive a fee waiver or reduced fine. The participant immediately followed this up with a counterexample, contrasting the deserving responsible parent with the undeserving absent father.

To determine defendant mothers’ deservingness of LFO leniency, leniency is afforded to single mothers who are viewed as deserving if they are taking care of their children, particularly when they do so without assistance from the fathers. Our findings here connect to the familial paternalism literature, which indicates that system actors often rely on stereotyped attributions of familied defendants to make decisions (Daly 1987a, 1987b, 1989a, 1989b). While the legal actors in our sample often held men to standards of financial responsibility, they implicitly held women too much more expansive standards of material and caregiving responsibility. Page et al. (2019) point out that care work tends to involve great financial sacrifice, as women earn significantly less than men or are not compensated. A judge in Georgia explained how on multiple occasions leniency was provided for single mothers in court because of lack of financial support and inability to make payments.

... No, I mean, I can remember occasions where single mom says, look, I barely can make ends meet, dad doesn’t pay child support, I have no support. All right, let’s figure out a way.

Similarly, system actors across multiple states discussed single mothers ‘going to school’ or ‘working part time jobs’ as reasoning for leniency in the assessment of LFOs. In New York, a defense attorney recounted providing more information to the judge about the defendant than parental status when prompting leniency in an LFO sentence.

So then for me to stand up there, you know, then it is Judge, single mother of two, works part time, goes to school full time. This is what she makes.

A judge in Georgia provided an example of a single mom who is working or going to school when leniency in LFOs is discussed during the court process.

Yeah, like if somebody’s in college or they got … single mom got three kids and she’s trying to go to school or whatever. I mean those kind of things they bring to your attention.

When a defense attorney in Missouri was asked about who is given leniency in the LFOs assessed, they provided an example of a poor single mother, but started off by acknowledging that she just started working.

This lady just got a job. She just came out of a DV shelter. She’s got four kids. She’s at 78% of the poverty. We’re just gonna let her … We’re just gonna stay them.

While our participants mentioned that men would be judged based on their ability to provide monetarily, women appeared to be held to a higher standard when afforded leniency. In many cases, women were expected to care for children, which included financial responsibility, and were sometimes afforded leniency on the basis of additional educational and employment responsibilities.

Curbing spill-over punishment

Finally, curbing spill-over punishment denotes system actors’ concerns about the potentially deleterious impact of LFOs on defendants’ families. About 10% of participants construed leniency in assessment and enforcement (e.g., waivers, reductions, payment extensions) as ways of mitigating collateral effects, particularly for the sake of defendants’ blameless children. This aligns directly with the findings from Daly’s studies, where many court actors focused specifically on lessening negative impacts on children (1987a, 1987b, 1989a, 1989b).

Assessing parents’ LFOs frequently exacerbates hardship for them and their children, something that system actors expressed they want to avoid. System actors said they consider parental status during the assessment of LFOs because they do not want to exacerbate the hardships and burdens experienced by defendants who are caring for children. System actors primarily expressed that they are concerned about the well-being of defendants’ children. The great concern over defendants’ children is in contrast with literature suggesting that system actors take little issue, expect, or pressure adult relatives into paying LFOs (Boches et al. 2022), yet supports the general premise of familial paternalism that system impacted parents are afforded leniency (Daly 1987a). This general attitude was expressed by a judge in Georgia:

No, I don’t want kids going hungry. I’ll even ask them, are you on WIC? If you’re not on WIC, then we might need to look and try to get you some help to get these kids some milk or whatever you got to do. There’s other things to do that come into play.

A judge and prosecutor from Minnesota, in separate interviews, voiced similar views, arguing that punishment should be imposed on the defendant and should not be borne by their family.

Judge: Trying to end up saying, well if the idea is to punish somebody, then you really got to make sure that you actually punish the person who did something wrong, not the kids, not the spouse.

Prosecutor:... the approach of our office is that any regular payment is deemed sufficient, because what you want is for that person to show that they’re trying to make amends. You’re not trying to bankrupt their family.

A defense attorney in New York explained that attorneys must make it very clear to the judges why an individual will not be able to make payments if they are sentenced to pay a fine or restitution. The example provided is an indigent single parent, either mother or father.

The other pieces are things like what are the demands? In other words, if the person is a single father or a single mother and they’ve got two or three kids they obviously can’t afford to pay fines, especially if they’re socio-economically distressed. There’s a lot of that kind of stuff where you really have to play the equities and play it not as a game, but make it real clear to the court that there’s some serious reasons why this person cannot pay the fine or cannot pay the restitution.

In addition to the hardship associated with owing LFOs, system actors also acknowledged the extreme poverty that many system-involved parents experience. A probation officer in Georgia discussed at length how LFOs can have negative impacts on families and in particular the children of people who are system involved.

… I’ve had some cases where they would rather pay their light bill or put food on the table for their children than paying probation fees. And fines. And, you know, in situations like that, that’s where the hardship forms come in. But, it can have a negative impact financially on families, I have seen it.

Despite the gendered expectations of care presented above, this last theme highlighted the focus of the system actors on the well-being of children. We note that the focus on who is punished potentially reflects a commitment to views about blameworthiness extended beyond concerns about culpability and gender (e.g., Spohn 2009).

DISCUSSION

The current study highlights that parental status is pertinent in determining LFO sentencing and enforcement across all four states. When evaluating LFOs for system-involved parents, system actors engage in the three C’s: considering family complexity, constructing deservingness and curbing spill-over punishment. For system actors, family status on its own was not viewed as a useful measure for evaluating LFO sentences; rather, they used the number of dependent children and multi-partner fertility to determine LFO amounts. In addition, parents were perceived as deserving of leniency from system actors when they showed a commitment to providing for dependent children. System actors also indicated that they do not want to create hardships for the defendants’ children. Taken together, the three C’s show that harshness or leniency in LFO sentences for system-involved people does not end with the assessment but continues until their criminal legal debt is paid off, waived, or they are incarcerated. Thus, it is necessary to look beyond sentencing to fully understand the relationship between parental status and leniency in LFOs. Although we find that system actors take parental status into account, it often does not lessen the negative implications of owing debt to the criminal legal system as many system involved people are not having all of their LFOs waived. In addition, specific circumstances lead to decisions of leniency not solely being a familied system involved person such as providing financial support as well as being physically around children.

Our findings build on previous literature investigating the relationship between leniency in criminal legal sentencing and family status (Daly 1987a, 1987b, 1989a, 1989b).Consistent with Daly’s original theoretical lens that investigates leniency in prison sentencing, we find that system actors provide leniency in the assessment of LFOs for individuals with dependent children due to the ‘social costs of punishment’ for familied defendants (1989b). Judges in Daly’s study worried that innocent family members (i.e., children) would be punished by breaking up families and/or removing the sources of economic support or care. Our findings are similar but diverge in the sense that system actors were worried about diverting financial and material support away from children when assessing, collecting and enforcing LFOs.

While we find that actors do express a desire to curb spill-over punishment, especially for children, this ultimately is mismatched with the reality of how LFOs negatively impact system-involved people and their families. Here, past research has demonstrated the overall punitive effect that any amount of legal financial debt has on the children of defendants (Harris et al. 2010; Montes et al. 2021; Pleggenkuhle 2018). However, it is unclear whether court actors fully understood how legal debt creates cumulative disadvantage for defendants. Thus, there may be a disconnect between how court actors think about the impact of legal financial debt on families and the reality of the impact itself.

We further expand Daly’s original framework by exploring how LFOs are enforced and collected, rather than solely for whom LFOs are assessed during the sentencing process. We accomplish this by specifically discussing the processes system actors undergo when making decisions about who is deserving of leniency and who is not. Our work is unique because it exposes how policymakers may lessen hardships for people assessed LFOs via information about how this enforcement and collection process operates. In contrast to our findings, court actors across Daly’s studies do not focus as heavily on the number of children. This may be due to the focus primarily on the in/out sentencing decisions Daly indicates her participants discussed (1987a, 1987b, 1989a, 1989b).

Our study contributes to the growing research using system actors’ perspectives on sentencing disparities and areas of discretionary decision making. Previous studies explore system actors working in community supervision (Jones and Kerbs 2007; Hyatt et al. 2020; Lecoq et al. 2021; Ruhland and Scheibler 2021) or the court system as prosecutors and judges (Cox and Gripp 2021; Tuesta 2021). The current study captures discretionary decision-making from system actors across all parts of the court and punishment process.

The salient themes of considering family complexity and constructing deservingness also speak to how hegemonic gender norms inform system actors’ perspectives regarding family roles and gendered (and racialized) stigmas. Although system actors rarely (if ever) spoke explicitly about the race of those they sentenced, they often drew on racial stereotypes, most notably the ‘deadbeat dad’ trope (and to a lesser extent, the ‘welfare queen’). Gender, however, was discussed openly and distinctions between mothers and fathers can cut both ways. Although participant narratives suggest a somewhat more responsive approach toward women with dependent children, mothers were often held to a different subjective standard of parental responsibility. Fathers had to be financially involved in parenthood (i.e. making child support payments), but they were regarded more cynically. Crucially, system actors’ gender-normative ‘perceptual shorthands’ did not adequately account for the various non-traditional co-parenting arrangements that frequently occur in low-income families (Edin and Nelson 2013).

Our study is not without limitations. First, while our study does provide important insights into how system actors consider parenthood status in cases involving LFOs, we do not have access to administrative court records across states in our sample to triangulate our findings. Future research would do well to accompany system actor interview data with data that measures their behaviour in order to analyse the extent to which behaviours in court match claims of behaviour outside of court. Next, due to access issues, we rely on fewer interviews from certain segments of system actors (i.e. prosecutors). Whilst it is beyond the scope of this article, in future work we plan to examine the extent to which parental status affects the experience of system-involved individuals. This would provide important insights into how these individuals negotiate owing legal debt, and, moreover, would provide useful knowledge about how court actor attitudes and decisions might impact the experiences of justice-involved individuals. We also were unable to differentiate between types of LFOs when discussing leniency as we did not ask about individual types of monetary sanctions when interviewing system actors. The current study explores the assessment, enforcement and collection of LFOs but does not specifically investigate how this process may change when system involved people return to court on new chargers. Future studies should look into how system actors may shift their perceptions of deservingness of leniency to familied defendants when they return to court. Last, the current study does not find variation across geographical regions in how parental status influences system actor claims about lenient decision-making regarding LFOs, although as previous research has shown, some variation between American states may exist. Future scholarship should explore the nuanced ways that geographic location either does or fails to impact the way that system actors’ factor in family in discretionary decision-making on LFOs.

In all, understanding why and in what forms system actors use their discretion to provide leniency, as well as other differences in court processes across geographical locations, provides crucial knowledge for scholars and policymakers. It is clear from the findings of this study that parental status is a salient factor in determining criminal legal sentencing, however, the primary systematic way system actors address inequity in sentencing for defendants who are parents is through the number of dependent children. The two additional themes addressed across research participants were less structured and based on perspectives informed by hegemonic gender norms. These findings connect directly to Friedman et al’s (2022) discussion of how state-mandated policies on the ability to pay LFOs impact defendants in disparate ways. More research is needed to identify specific policies that will lessen disparate LFO sentences, however, one avenue for policy change is allowing more statutory waivers for system actors to use. Our findings are also similar to Daly’s (1987a; 1989a; 1989b) findings on imprisonment in some of the ways parental status is taken into account.

As demonstrated in this study, there are several ways familial status is mobilized to justify claims of leniency in decision-making around LFOs. Our findings that system actors assert that they take family status into consideration in LFO sentencing decisions is an important and new contribution of this study. However, we emphasize, even if system actors’ actions match their discourse in that they sentence familied defendants to reduced LFOs, we know from other research (Harris et al. 2010; Pleggenkuhle 2018) that this reduction does not eliminate the financial burdens of LFOs on families. There is still significant financial debt imposed on familied defendants with potentially cascading consequences. The current study findings do not contradict this, but rather, suggest that the burdens of LFOs on parents are so great that even those who work in the system are sympathetic and make efforts to ameliorate these harms.

APPENDIX

Table A1.

Interview sample by background characteristics

Background characteristics	System actors (N = 205)	System actors (%)
States
Georgia	50	24.39
Minnesota	64	31.22
Missouri	47	22.93
New York	44	21.46
Age
18–29	10	4.88
30–39	52	25.37
40–49	34	16.59
50–59	51	24.88
60–69	33	16.10
70–79	6	2.93
No response	19	9.27
Race
White	162	79.02
Black	22	10.73
Asian	2	0.98
Native American	2	0.98
Bi-or Multi-racial	2	0.98
No response	15	7.32
Gender
Man	105	51.22
Woman		43.41
No response	11	5.37

FUNDING

This research was funded by a grant to the University of Washington from Arnold Ventures (Alexes Harris, PI). Partial support for this research came from a Eunice Kennedy Shriver National Institute of Child Health and Human Development Research infrastructure grant, P2C HD042828, to the Center for Studies in Demography & Ecology at the University of Washington.