Debtors' Prisons in the United States | Global Wealth Protection ^ See, e.g., Sarah Dolisca Bellacicco, Note, Safe Haven No Longer: The Role of Georgia Courts and Private Probation Companies in Sustaining a De Facto Debtors Prison System, 48 Ga. L. Rev. Donations from readers like you are essential to sustaining this work. Miss. Most importantly for present purposes, the debts at issue historically were contractual, not criminal. 14, 2015) (notes on file with Harvard Law School Library). Ultimately, debtors' prisons are not only unfair and insensible, they are also illegal. And the Court has made clear this discretion is central to the core penal goals of deterrence, incapacitation, and retribution.162 Against that baseline, the tradition of Bearden simply mandates that once a sentencing court has imposed a monetary obligation, it may not convert that obligation into imprisonment for failure to pay absent a special finding, a basic threshold that ensures the defendant isnt invidiously punished for being poor. art. But for those without friends in high places, debtors imprisonment could turn into a life sentence. Ann. Debtors' Prison Relief Act of 1792 - Wikipedia In addition, the ACLU asks for a "bench card" to remind judges in all courts across the state that jail is not a punishment for poverty. ^ See, e.g., Davis v. State, 185 So. at 133.). ^ For example, one author, writing in 1889, pointed out a number of ways in which the state bans were limited. . ^ See Recent Legislation, supra note 23, at 1313 n.13. This imposes direct costs on the government and further destabilizes the lives of poor people struggling to pay their debts and leave the criminal justice system behind. And other judges will consider all nonpayment to be willful, unless or until the debtor can prove that he or she has exhausted absolutely all other sources of income by quitting smoking, collecting and returning used soda cans and bottles, and asking family and friends for loans. (called for should hyperlink to. In this context, exemptions laws are provisions that exempt a certain amount of personal property from attachment and garnishment. The City of Sherwoods hot check court is part of a labyrinthine and lucrative system in which defendants charged with bouncing even a single for $15 have ultimately been charged thousands of dollars in court costs, fines, and fees payable to the city and the county. ^ See Settlement Agreement, Cleveland v. Montgomery, supra note 18, at 1. For instance, a number of constitutional provisions contained (or had read in) an exception for fraud.104 The fraud exception has been interpreted to cover cases of concealed assets or fraudulent contracting.105 In some cases, even leaving the state would count as fraud.106 And if a court ordered a party to turn over specific assets, that partys refusal to comply would give rise to the jailable offense of civil contempt of court without offending the constitutional bans.107 Second, courts have held a long list of monetary obligations not to count as debts. Some constitutional provisions limited the ban to debts arising out of contract, as opposed to tort or crime.108 In these places, failure to pay child support or alimony could give rise to arrest and incarceration.109 So too with criminal costs and fines.110 Thus, in most states today one can be imprisoned for failure to pay noncommercial debts, including debts stemming from tort,111 crime,112 taxes and licensing fees,113 child support,114 and alimony.115. Most importantly, explains John Pollock, the coordinator of the National Coalition for a Civil Right to Counsel, indigent defendants have a right to counsel in criminal cases, but not in civil ones. Between 1821 and 1849, twelve states followed suit. As noted above, the state bans on debtors prisons have been given short shrift in the legal literature and recent litigation.91 This Part begins by providing a brief historical overview of the state bans92 and then argues that ignoring them is a legal mistake: these imprisonment-for-debt provisions plausibly extend to some parts of contemporary debtors prisons. debtors' prisons in the United States as they existed in the early years of the Republic. Louisianas Debtors Prisons: An Appeal to Justice, https://www.aclumaine.org/en/news/prison-being-poor-time-end-debtors-prison-system-maine, https://www.aclu.org/news/aclu-maine-calls-legislature-end-debtors-prisons, filed lawsuits challenging "pay or stay" sentences, 2015, the ACLU of Maine called for an end to practices that result in the jailing of indigent people who cannot afford to pay court fines and fees. But the spirit behind them ought to drive other constitutional actors executives, legislators, and citizens to take swift action.167. In 2016, the ACLU of Maine helped to secure the passage of LD 1639, which includes a critical provision to help curb debtors prisons. Congress abolished debtors' prisons in 1833. ^ For an argument that awareness campaigns are more effective than litigation, see Eric Balaban, Shining a Light into Dark Corners: A Practitioners Guide to Successful Advocacy to Curb Debtors Prisons, 15 Loy. 575, 576 (Fla. 1939); Roach v. Oliver, 244 N.W. 13. Courts emphasize that the contempt lies in failing to comply with an injunction to turn over specific property that is currently under the debtors control.117 And that specific property must also be nonexempt under the states exemption laws.118 An injunction as a general rule is a drastic and extraordinary remedy.119 Accordingly, some states require that creditors attempt execution through in rem actions before resorting to in personam actions.120 Herein lies the attractiveness of the state bans to the civil debtor the protections offered to a qualifying debtor, as a general rule, far exceed those offered to the criminal debtor. What are your thoughts? (11 Allen) 264 (1865)). Where a state has chosen to ban debtors prisons, it shouldnt be able to welcome them back in surreptitiously, by grafting them onto the criminal system.164. The statute seems to have provided for a Bearden-like inquiry: [N]o convicted person may be held in contempt for failure to repay if he shows that his default was not attributable to an intentional refusal to obey the order of the court or to a failure on his part to make a good faith effort to make the payment. Credit: Michelle Frankfurter, Jacquelyn Martin / AP Photos, Support our on-going litigation and advocacy work. art. A century and a half later, in 1983, the Supreme Court affirmed that incarcerating indigent debtors was unconstitutional under the Fourteenth Amendments Equal Protection clause. at 60. You can also contribute via. Dist. ^ Cf., e.g., Kimble v. Marvel Entmt, LLC, 135 S. Ct. 2401, 241011 (2015) (identifying the ero[sion] of statutory and doctrinal underpinnings, id. Feb. 8, 2015) [hereinafter Complaint, Jenkins v. Jennings], http://equaljusticeunderlaw.org/wp/wp-content/uploads/2015/02/Complaint-Jennings-Debtors-Prisons-FILE-STAMPED.pdf [http://perma.cc/LM7S-LZW2]. II, 21; N.C. Const. 3:15-cv-732 (S.D. Read More. amend. In the latest pushback against the national scourge of debtors' prisons, the American Civil Liberties Union filed an October 2015 federal lawsuit challenging the illegal arrest and jailing of poor people in Biloxi, Mississippi, without a hearing or representation by counsel. Regular observers of the City court have never once seen an indigence or ability to pay hearing conducted in the past decade.). the united states abolished debtors' prisons in 1929 Through the Tennessee Coalition for Sensible Justice, the ACLU of Tennessee supported the passage of SB 802/HB 1173, which would amend the law to offer courts alternatives to revoking peoples licenses, including allowing a person to file an indigence affidavit and have all their fees and fines waived, giving courts the ability to permit restricted licenses to allow people to drive to work, school, recovery programs and other necessities, and setting up a payment plan to pay the fees over time. art. ^ See, e.g., Robertson, supra note 3 (describing how a debtors mother and sister scraped together what money they [could]). ^ See, e.g., Telephone Interview with Douglas K. Wilson, supra note 7. Can we count on your support today? An Appendix to this Note, available on the Harvard Law Review Forum, provides the critical language of each of the forty-one state constitutional bans. 833, 88687 (2013); Alexandra Natapoff, Misdemeanor Decriminalization, 68 Vand. In 2013, the ACLU of Michigan, the Brennan Center for Justice, and the Michigan State Planning Body filedan amicus briefin a debtors' prison case before the Michigan Court of Appeals, urging the issuance of guidance to lower courts to prevent debtors' prison practices. ^ To be found in the state bans of Arkansas, California, Iowa, Nebraska, New Mexico, Ohio, and Tennessee. 277 (2014). The percentage of people living in poverty in Biloxi has doubled since 2009. Instead, it seems to be driven primarily by the need to raise revenue, an illegitimate state interest for punishment, and one that, in practice, functions as a regressive tax.9 Second, imprisonment for criminal justice debts has a distinctive and direct financial impact. 448, 448 (La. November 6, 2017 By: Bobby Casey, Managing Director GWP Do an internet search on debtors' prisons, and the top searches will Though poverty has increased in Lexington County since 2012with poverty rates for Black and Latino residents at more than double the rate for white residentsthe County continues to rely on revenue from fines and fees in magistrate court cases. See Order Dated December 23, 2014, re: Rule 37.65 Fines, Installment or Delayed Payments Response to Nonpayment (Mo. 2d 227, 233 (Ala. Crim. ^ See, e.g., City of Danville v. Hartshorn, 292 N.E.2d 382, 384 (Ill. 1973) (describing violations of municipal ordinances as quasi-criminal in character [but] civil in form (quoting City of Decatur v. Chasteen, 166 N.E.2d 29, 39 (Ill. 1960))). . art. Matthew 18:24-26 . . VIII; id. Mo. ^ See Office of Judicial Servs., Supreme Court of Ohio, Collection of Fines and Court Costs in Adult Trial Courts (2015), http://www.supremecourt.ohio.gov/Publications/JCS/finesCourtCosts.pdf [http://perma.cc/43AE-V32F]; see also Taylor Gillan, Ohio Supreme Court Warns Judges to End Debtors Prisons, Jurist (Feb. 7, 2014, 7:14 AM), http://jurist.org/paperchase/2014/02/ohio-supreme-court-warns-judges-to-end-debtors-prisons.php [http://perma.cc/EA4L-BKHJ]. ^ See, e.g., State ex rel. ^ Two lawsuits against the City of Montgomery have settled. art. 1999) (The [creditors] are free to collect the judgment by execution, garnishment, or any other available lawful means so long as it does not include imprisonment.). ^ See Complaint, Jenkins v. Jennings, supra note 24. ^ See, e.g., Shepard, supra note 6, at 153132. ^ See, e.g., United States v. Balint, 258 U.S. 250, 25152 (1922) ([T]he general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime. art. art. 853, 855 (1973). James, 407 U.S. at 140 (quoting Rinaldi, 384 U.S. at 309). This section advances arguments from text, purpose, and original meaning, which in many cases converge on this result. The ACLU charges that DeKalb County and the for-profit company Judicial Corrections Services teamed up to engage in a coercive debt collection scheme that focuses on revenue generation at the expense of protecting poor people's rights. Const. I, 13; N.M. Const. 939.12 (2014) (defining crime). Her crime was a failure to pay the monthly fees mailed to her by a private probation company, called Judicial Correction Services. Ending Modern-Day Debtors' Prisons Nearly two centuries ago, the United States formally abolished the incarceration of people who failed to pay off debts. (It may be . Read more. at 39899; Williams, 399 U.S. at 242. art. III, 38; Mich. Const. I, 19; Kan. Const. art. Starting with the text, twenty-two state bans refer to debt or debtor without drawing further distinctions between different kinds of debts,125 and theres no textual reason why such words should exclude monetary obligations triggered by statutorily regulated conduct and owed to the state.126 Indeed, the presence of such qualifying language in the other bans127 strongly suggests that the words debt and debtor werent inherently limited to commercial life as a matter of the original meaning of the text just as they arent today. In 2014, the ACLU of New Hampshire secured the release of three people imprisoned for failing to pay court-imposed fines that they simply could not afford. ^ See Charles Warren, Bankruptcy in United States History 52 (1935). I, 14; N.J. Const. L. Rev. She thought she might get a ticket. . ^ Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2761 (2010). Others assert that certain prison conditions arguably violate the Cruel and Unusual Punishments Clause or the Thirteenth Amendments prohibition on involuntary servitude. ^ See, e.g., Debt, Blacks Law Dictionary (10th ed. The Twelve Tables, the oldest codification of Roman law we have, permitted its usage in 451 B.C. . If debtors imprisonment is unconstitutional, why does it happen? Debt collection practices like these have had a devastating impact on people of color in the Atlanta metropolitan area. that a State may impose unduly harsh or discriminatory terms merely because the obligation is to the public treasury rather than to a private creditor.82 The Court suggested that it was applying rational basis scrutiny, although in light of the Courts strong language some judges have read James as subjecting the classification to some form of heightened scrutiny.83, Similarly, the debtor in Fuller v. Oregon owed fees for an attorney and an investigator.84 But in Fuller, the Court upheld Oregons recoupment statute because the defendant wouldnt be forced to pay unless he was able.85 The majority found that the recoupment statute provided all of the same protections as those provided to other judgment debtors, and was therefore wholly free of the kind of discrimination that was held in James v. Strange to violate the Equal Protection Clause.86 Justice Marshall, joined by Justice Brennan in dissent, cited the Oregon constitutional ban on imprisonment for debt and pointed out that indigent defendants could be imprisoned for failing to pay their court-appointed lawyers, while well-heeled defendants who had stiffed their hired counsel could not.87 The majority opinion pointed out that this issue hadnt been preserved for appeal,88 and opined in dicta that the state ban on imprisonment for debt was an issue for state courts to decide.89 Justice Douglas, concurring in the judgment, agreed, but noted the apparent inconsistency between [the relevant state constitutional provision] and the recoupment statute.90. 7. the united states abolished debtors' prisons in 1929 The threat of imprisonment may create a hostage effect, causing debtors to hand over money from disability and welfare checks, or inducing family members and friends who arent legally responsible for the debt to scrape together the money.10, Take the story of Harriet Cleveland as a window into the problem: Cleveland, a forty-nine-year-old mother of three from Montgomery, Alabama, worked at a day care center.11 Starting in 2008, Cleveland received several traffic tickets at a police roadblock in her Montgomery neighborhood for operating her vehicle without the appropriate insurance.12 After her license was suspended due to her nonpayment of the ensuing fines and court costs, she continued to drive to work and her childs school, incurring more debt to Montgomery for driving without a license.13 Over the course of several years, including after she was laid off from her job, Cleveland attempted to chip[] away at her debt while collection fees and other surcharges ballooned it up behind her back.14 On August 20, 2013, Cleveland was arrested at her home while babysitting her two-year-old grandson.15 The next day, a municipal judge ordered her to pay $1554 or spend thirty-one days in jail.16 She had no choice but to sit out her debt at the rate of $50 per day.17 In jail, [s]he slept on the floor, using old blankets to block the sewage from a leaking toilet.18. This Part outlines those limits, which stem from two main lines of cases in the 1970s and early 1980s, and undergird almost all debt-imprisonment litigation today. at 6061. Yet, recent years have witnessed the rise of modern-day debtors' prisonsthe arrest and jailing of poor people for failure to pay legal debts they can never hope to afford, through criminal justice procedures that violate their most basic rights. II, 27; Neb. ^ See, e.g., State v. Blazina, 344 P.3d 680, 68081, 684 (Wash. 2015); ACLU of Wash. & Co-lumbia Legal Servs., Modern-Day Debtors Prisons 3 (2014), http://aclu-wa.org/sites/default/files/attachments/Modern%20Day%20Debtor%27s%20Prison%20Final%20(3).pdf [http://perma.cc/X66N-G5EA] ([T]he average amount of LFOs imposed in a felony case is $2540. Rev. ^ Id. Underlying the debts is a range of crimes, violations, and infractions, including shoplifting, domestic violence, prostitution, and traffic violations.27 The monetary obligations come under a mix of labels, including fines, fees, costs, and interest, and are generally imposed either at sentencing or as a condition of parole.28 Arrest warrants are sometimes issued when debtors fail to appear in court to account for their debts, but courts often fail to give debtors notice of summons, and many debtors avoid the courts out of fear of imprisonment.29 When courts have actually held the ability-to-pay hearings required by Bearden30 and theyve often neglected to do so31 such hearings have been extremely short, as many misdemeanor cases are disposed of in a matter of minutes.32 Debtors are almost never provided with legal counsel.33 The total amount due fluctuates with payments and added fees, sometimes wildly, and debtors are often unaware at any given point of the amount they need to pay to avoid incarceration or to be released from jail.34 Multiple municipalities have allowed debtors to pay down their debts by laboring as janitors or on a penal farm.35 One Alabama judge credited debtors $100 for giving blood.36, The problem is widespread. The doctrinal carve-outs for crime suggest that the state bans wouldnt apply to criminal justice debt. ^ See, e.g., State ex rel. "Murther, murther, murther, murther " shouted Free-born John Lilburne from prison. ^ This includes the state constitutional bans of Alabama, Alaska, Arizona, Florida, Georgia, Hawaii, Idaho, Indiana, Kansas, Kentucky, Minnesota, Mississippi, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas, Utah, Vermont, Washington, and Wyoming. Rev. . Ct. 1834); Werdenbaugh v. Reid, 20 W. Va. 588, 593, 598 (1882) (discussing Virginia and West Virginia). May Day and Abolition - CounterPunch.org 1968) (en banc). 18; Md. Instead, Sanders, who lives in Illinois, was arrested and taken to jail. at 65 (Washington). The question was, how? To the contrary, regulatory offenses became prominent within American criminal law only after the abolition of debtors prisons.131 The Court in Morissette v. United States132 identified the pilot of the [regulatory offenses] movement in such crimes as selling liquor to an habitual drunkard and selling adulterated milk, citing cases from 1849,133 1864,134 and 1865.135 A law review article published in 1933 called the steadily growing stream of offenses punishable without any criminal intent whatsoever a recent movement in criminal law,136 placing the beginnings of the trend in the middle of the nineteenth century.137 By comparison, all but a few states had enacted their bans on debtors prisons by the 1850s.138 So reading the carve-outs as unrelated to regulatory crimes is consistent with both text and original meaning. I, 19; Pa. Const. . Id. ^ Id. Eliminating the Criminal Debt Exception for Debtors' Prisons In the end, however, imprisonment for debt was abolished not by an organized reform movement but, instead, by substantial changes in commercial practices and the corresponding . Courts, however, did make clear that the legislature couldnt criminalize the mere nonpayment of commercial debt as a constitutional workaround.

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