Nearly two centuries ago, the United States formally abolished the incarceration of people who failed to pay off debts. at 131. art. I, 18 (No person shall ever be imprisoned for debt. (emphasis added)). ^ Joseph Shapiro, Measures Aimed at Keeping People Out of Jail Punish the Poor, NPR (May 24, 2014, 4:58 PM), http://www.npr.org/2014/05/24/314866421/measures-aimed-at-keeping-people-out-of-jail-punish-the-poor. In the 1970s and 1980s, he says, we started to imprison more people for lesser crimes. 3:15-cv-732 (S.D. Yet, as noted, they may be jailed for failing to show up at a civil hearing or for not resolving civil debt. Mo. The percentage of people living in poverty in Biloxi has doubled since 2009. at 66162. The issue reached the U.S. Supreme Court in the 1970s, with two cases in which the Court found it unconstitutional to incarcerate people solely because they could not pay a public debt ( Williams v. at 15556 (discussing child support payments); id. 334, 34546 (2001). But some strict liability crimes, like statutory rape, are more easily analogized to traditional crimes despite the absence of a mens rea. The first is that judges may incarcerate debtors who fail to show up at debt-related proceedings. Rev. Peter J. Coleman, Debtors and Creditors in America: Insolvency, Imprisonment for Debt, and Bankruptcy, 1607-1900 (1974). Despite the Courts reluctance to rule on an issue not properly briefed, federal courts might return to the issue and confirm that states must apply their bans on imprisonment for debt to costs (and other quasi-civil debts) in a criminal case.150 In fact, the lawsuits against Ferguson and Jennings hinted at this argument,151 although neither complaint cited the Missouri Constitution. at 39899; Williams, 399 U.S. at 242. I, 12; Miss. A. 1983). VIII; Beth A. Colgan, Reviving the Excessive Fines Clause, 102 Calif. L. Rev. The report documents local courts that have a pattern of criminalizing poverty and perpetuating racial injustice through the unconstitutional enforcement of low-level offenses. ^ See, e.g., Harrison v. Harrison, 394 S.W.2d 128, 13031 (Ark. ^ See Class Action Complaint at 13, Bell v. City of Jackson, No. 2:14-cv-00186 (M.D. . In fact, the recent bench card promulgated by Ohio Supreme Court Chief Justice OConnor begins as follows: Fines are separate from court costs. As the literature has long recognized, the abolition of debtors prisons was tightly constrained in scope.103 The doctrinal limits on the bans coverage cabined them along two dimensions: First, debtors evading payment were sculpted out from the bans. 4; Wash. Const. What are some types of debt that people are sent to jail for not paying? (10 Allen) 199 (1865); Commonwealth v. Waite, 93 Mass. Debtors' prisons impose devastating human costs. The late Professor William J. Stuntz also noted that regulatory crimes and core crimes like murder have dramatically different histories. Stuntz, supra, at 512. amend. ^ See Peter J. Coleman, Debtors and Creditors in America 24956 (1974). at 5. Of course, while the disparity between how indigent and well-heeled defendants are treated, see supra note 87 and accompanying text, is arguably not right, it seems reasonable enough to pass rational basis scrutiny, see, e.g., FCC v. Beach Commcns, Inc., 508 U.S. 307, 31415 (1993); U.S. R.R. ^ E.g., In re Nichols, 749 So. It calls for reform through legislative action and court rules. . Bill of Rights, 16; Ky. Const. During this nation's early years, debtors were regularly imprisoned for failure to pay commercial debts. As of October 2015, the case had survived a contentious motion to dismiss the judge had initially dismissed, then reconsidered and reinstated, two allegations of unconstitutional imprisonment for debt and was moving toward trial. Read More. First, some of the responses leave unresolved the substantive definition of indigence for the purposes of ability-to-pay hearings.63 Without such a definition, discretion is left to the same courts that have been imprisoning criminal debtors thus far.64 Second, even tightly written laws,65 settlements, and resolutions need to be enforced, which requires accountability and monitoring.66 Abolishing the new debtors prisons is as much a test of moral and societal conviction as it is of sound drafting. . Second, even in states that allow contempt proceedings, most courts require a sharply limited (and debtor-favorable) inquiry. Alec Karakatsanis, a lawyer who last year brought one of the only lawsuits to successfully challenge a local court system for jailing indigent debtors, says that the first step was the normalization of incarceration. Victims can avoid jail only if they pay the entire amount of outstanding court fines and fees up front and in full. art. I, 11; S.C. Const. In February 2014, the Supreme Court of Ohio released a new "bench card" giving much-needed instructions to Ohio judges to explain how to avoid debtors' prison practices in their courtrooms. art. L. Rev. 522, 525 (Fla. 1926); Plapinger v. State, 120 S.E.2d 609, 611 (Ga. 1961); Boyer v. Kinnick, 57 N.W. ^ This carve-out can be found in the state bans of Michigan, New Jersey, South Dakota, and Wisconsin. Feb. 8, 2015) [hereinafter Complaint, Fant v. Ferguson], http://equaljusticeunderlaw.org/wp/wp-content/uploads/2015/02/Complaint-Ferguson-Debtors-Prison-FILE-STAMPED.pdf [http://perma.cc/MVJ9-Q9CQ]. art. II, 40(3), para. This report details the findings of an almost year-long investigation into the ways Nebraskas criminal justice system handles fines and fees imposed on low-income Nebraskans. I, 11; Mont. art. $95/year. ^ See, e.g., Alicia Bannon et al., Brennan Ctr. State law allows the Department of Motor Vehicles to suspend the licenses of people who have willfully failed to pay these fines and fees, but most California traffic courts do not give drivers a meaningful opportunity to prove that their failure to pay is due to poverty, rather than willful non-compliance. at 13233 (The statutes vary widely in their terms. Id. ^ See id. . (quoting Lamar v. State, 47 S.E. for Justice, Criminal Justice Debt: A Barrier to Reentry 18 (2010), http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf [http://perma.cc/6SVB-KZKQ]; Human Rights Watch, supra note 32, at 23. Is this debt private or public? Rev. II, 18; Ark. I, 19; Idaho Const. The report documents the routine jailing of poor people across the state solely for their failure to pay court-imposed fines and fees. ^ Recent Legislation, supra note 23, at 1314. c. 62) was an Act of the Parliament of the United Kingdom of Great Britain and Ireland that aimed to reform the powers of courts to detain debtors . VI, 15; Tenn. Const. Read more. By leaving this mens rea determination to individual judges, rather than providing bright-line criteria as to how to make the distinction, the justices left open the possibility that a local judge with high standards for indigence could circumvent the spirit of Bearden and send a very, very poor debtor to jail or prison. at 132. ^ The 1849 Virginia statute took this approach, which was carried over into West Virginia when that state broke away from Virginia. shall become a judgment in the same manner and to the same extent as any other judgment under the code of civil procedure.157 In Florida, convicted indigents assessed costs for due process services are expressly provided with the same protections as civil-judgment debtors.158 But not all collections statutes are so explicit, of course.159. Others assert that certain prison conditions arguably violate the Cruel and Unusual Punishments Clause or the Thirteenth Amendments prohibition on involuntary servitude. See Thacher v. Williams, 80 Mass. Oct. 9, 2015) [hereinafter Complaint, Bell v. Jackson], https://assets.documentcloud.org/documents/2455850/15-10-09-class-action-complaint-stamped.pdf [https://perma.cc/3CKT-XXX4] (describing reduction of debt at a rate of $58 per day of work); Karakatsanis, supra note 3, at 262 ($25 per day). art. Cf. ^ See Recent Legislation, supra note 23, at 1313 n.13. ^ For example, in 1855, Massachusetts passed a statute saying: Imprisonment for debt is hereby forever abolished in Massachusetts. Appleton, 71 Mass. Const. How to define the category? The crusade to abolish debtors' prisons also garnered strong public support from Freeman Hunt and Hezekiah Niles, influential newspaper editors and ardent reformers. Sometimes called legal financial obligations (LFOs), the total debt generally includes a mix of fines, fees, court costs, and interest.5 And unlike civil collection actions (for the most part6), incarceration is very much on the menu of sanctions that the unpaid creditor, usually a municipality,7 can impose. art. art. Debt collection practices like these have had a devastating impact on people of color in the Atlanta metropolitan area. Despite arising out of a criminal proceeding, costs are cleanly distinguishable from fines, restitution, and forfeiture in their basic purpose: compensating for or subsidizing the governments marginal expenditures on criminal proceedings. If debtors imprisonment is unconstitutional, why does it happen? Mo. Debtors' prisons were supposed to have gone out with the 19th century, but there is evidence that they still exist today in the United States. 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. I, 17; Wis. Const. Read More. 1, 11; Ga. Const. ch. ^ State v. Blazina, 344 P.3d 680, 685 (Wash. 2015). ^ See id. ^ See, e.g., Colo. Const. Read More. For case law, see, for example, Towsend v. State, 52 S.E. . If the debtor fails to show up, or if the judge deems that the debtor is willfully not paying the debt, the judge may write a warrant for the debtors arrest on a charge of contempt of court. The debtor is then held in jail until he or she posts bond or pays the debt, in a process known as pay or stay.. This practice both aggravates known racial and socioeconomic in-equalities in the criminal justice system8 and raises additional concerns. ^ See, e.g., Mich. Const. Its interesting to note that the Illinois state constitution specifically includes criminal fines. ^ See Tate, 401 U.S. at 400; Williams, 399 U.S. at 242 n.19. 13. except the homestead exemption.78 Avoiding broad commentary on the general validity of various state recoupment statutes,79 the Court nonetheless expressed concern with the classification drawn by Kansass recoupment statute, which strip[ped] from indigent defendants the array of protective exemptions Kansas ha[d] erected for other civil judgment debtors,80 including state exemptions from attachment and restrictions on wage garnishment.81 While a state could prioritize its claim to money over other creditors (say, by giving its liens priority), [t]his does not mean . 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. Ann. Victims are told they can avoid jail only if they pay the entire amount of outstanding court fines and fees up front, in full, and in cash. Instead, Sanders, who lives in Illinois, was arrested and taken to jail. ^ See, e.g., City of Fort Madison v. Bergthold, 93 N.W.2d 112, 116 (Iowa 1958); Voelkel v. City of Cincinnati, 147 N.E. Debtors' prison - Wikipedia See id. L. Rev. Laws 941, 1152 (to be codified at Mo. 560.031(5) (2000) ([T]he fine may be collected by any means authorized for the enforcement of money judgments.) (to be transferred to Mo. The report exposes a counterproductive system for the collection of criminal justice debt. ^ Two lawsuits against the City of Montgomery have settled. Comeback of debtors' prisons: U.S. courts revive Dickensian practice of jailing people for failing to pay legal fees United States abolished debtors' prisons in the 1830s, but more than a third of . art. for the enforcement of a judgment.); Mo. For example, violations of municipal ordinances boil down to the regulatory crimes category in states where municipalities are not empowered to imprison. Ala. Nov. 12, 2013) [hereinafter Complaint, Cleveland v. Montgomery], http://www.splcenter.org/sites/default/files/downloads/case/amended_complaint-_harriet_cleveland_0.pdf [http://perma.cc/Y4CM-99AK]. These courts have ordered the arrest and jailing of people who fall behind on their payments, without affording any hearings to determine an individual's ability to pay or offering alternatives to payment such as community service. To be fair, provisions limiting the ban to debts arising out of contract (four states)128 or stemming from civil cases (seven states)129 would seem to leave regulatory offenses uncovered. See id. In the process, we were lowering our standards for what constituted an offense deserving of imprisonment, and, more broadly, we were losing our sense of how serious, how truly serious, it is to incarcerate. And in the face of mounting budget deficits at the state and local level, courts across the country have used aggressive tactics to collect these unpaid fines and fees, including for traffic offenses and other low-level offenses. The American tradition of debtors imprisonment seems to be alive and well. I, 1, XXIII; Haw. Why Are We Still Sending People to Jail for Being Poor? It's Time to 293, 294 (Ga. 1905) ([I]n enacting the statute now under consideration, the [l]egislative purpose was not to punish . The prevailing sentiment reflected a view that the inability . I, 14 (No person shall be imprisoned for failure to pay a fine in a criminal case unless he has been afforded adequate time to make payment, in installments if necessary, and has willfully failed to make payment.). 778, 787 n.79 (1969) (listing sources). See U.S. Const. ^ Id. 448, 448 (La. 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. ^ Stillman, supra note 11. 3, 2013), http://www.acluohio.org/wp-content/uploads/2013/04/2013_0404LetterToOhioSupremeCourtChiefJustice.pdf [http://perma.cc/R3T5-WPEL]. art. 556.061(29)) (defining infraction). Contact us at [email protected] or (919) 391-7290. I, 1, XXIII (There shall be no imprisonment for debt.); Tex. In December 2016, the ACLU of Nebraska released Unequal Justice: Bail and Modern Day Debtors Prisons in Nebraska. This section advances arguments from text, purpose, and original meaning, which in many cases converge on this result. Donations from readers like you are essential to sustaining this work. L.Q. The Rise of "Debtors' Prisons" in the US - JONATHAN TURLEY Debtors' Prisons, Then and Now: FAQ | The Marshall Project Legal commentators have long recognized that the federal constitution imposes limits on imprisonment for criminal justice debt under the Equal Protection and Due Process Clauses. ^ Id. Def. Most importantly for present purposes, the debts at issue historically were contractual, not criminal. ^ While outside the scope of analysis here, Professor Beth Colgan has argued that incarceration for criminal justice debt might also violate the Excessive Fines Clause of the Eighth Amendment. . ^ See id. (It may be . Stat. 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. 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. II, 12 (No person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors in such manner as shall be prescribed by law, or in cases of tort or where there is a strong presumption of fraud.); Md. 359, 360 (N.Y. Sup. A century and a half later, in 1983, the Supreme Court affirmed that incarcerating indigent debtors was unconstitutional under the Fourteenth Amendment's Equal Protection clause. The baseline principle, of course, is that a court may consider a defendants financial resources to inform its decision whether to impose jail time, fines, or other sanctions.161 Without this discretion, courts might impose prison terms unnecessarily, to avoid the risk of assessing a fine on a judgment-proof defendant. Most importantly for present purposes, the debts at issue historically were contractual, not criminal. art. . ^ E.g., S.D. Bd. Stat. This tiered regulatory model thus gives each state the ability to pursue multiple legitimate ends including both punishment and subsidizing the criminal justice system so long as it doesnt discriminate in applying its own law. Why Are We Still Sending People to Jail for Being Poor? It's Time to 2d 1066 (Ala. 2000) (applying Morissettes framework). at 48 n.9 (majority opinion). In Williams v. Illinois,67 the defendants failure to pay a fine and costs would have resulted in a term of imprisonment beyond the statutory maximum.68 And in Tate v. Short,69 the defendants failure to pay would have resulted in imprisonment when the statute didnt allow for imprisonment at all.70 The Court struck down imprisonment in each case.71 The third and most discussed case in the trilogy, Bearden v. Georgia, struck down the automatic revocation of parole for nonpayment of criminal justice debt.72 Bearden established a bona fide efforts test that asks how seriously one has tried to secure employment and credit, in addition to measuring assets.73 The Bearden line of cases thus endeavors to shield criminal justice debtors making a good faith effort to pay, while leaving willful nonpayment unprotected.74, The second line of cases limits states ability to treat civil debtors differently based on the procedural origins of their debt. Debtor prisons weren't formally abolished until the mid-19th Century. ^ Id. In 2016, the ACLU of Texas sued the City of Sante Fe for unconstitutionally jailing people for low-level offenses simply because they are poor. at 61 (Marshall, J., dissenting); see also id. While blacks make up 54 percent of the DeKalb County population, nearly all probationers jailed by the DeKalb County Recorders Court for failure to pay are black a pattern replicated by other Georgia courts. The ACLU Racial Justice Program and allies across the country are bringing lawsuits and advocacy to expose and challenge these practices. The issue reached the U.S. Supreme Court in the 1970s, with two cases in which the Court found it unconstitutional to incarcerate people solely because they could not pay a public debt (Williams v. and is the first known codification of debt Until that time, failure to pay what you owed could and did land you in jail. In these cases, the creditor a predatory lender, a landlord, or a utility provider or a debt collector (hired by the creditor) may bypass bankruptcy court and take the debtor straight to civil court. Dec. 23, 2014) (en banc), http://www.courts.mo.gov/sup/index.nsf/d45a7635d4bfdb8f8625662000632638/fe656f36d6b518a886257db80081d43c [http://perma.cc/BTX3-4ERC]. I, 18; Utah Const. For one, indigent debtors do not know whom to negotiate with the DMV, which mailed the speeding ticket, or the debt collector that now seems to be pursuing the matter. [A]ny broadside pronouncement on their general validity would be inappropriate. 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]. . PDF Department of Economics Working Paper Series Laying the provisions out in one place seems necessary, as the stringcites available in the legal literature are now outdated. ^ See id. ^ In some circumstances, courts can exercise their contempt power to imprison debtors for failure to pay civil debts. at 133.). I, 17; Ariz. Const. In October of 2010, the American Civil Liberties Union published a report titled In for a Penny: The Rise of America's New Debtors' Prisons. On this understanding of the law, debtor protections co-vary quite straightforwardly with the states interest in collecting. The second is that the Supreme Court, in Bearden, did not define two key terms: indigent and willful. How are judges supposed to decide whether a debtor is indigent or, rather, is willfully refusing to pay? The Twelve Tables, the oldest codification of Roman law we have, permitted its usage in 451 B.C. More problematically, these monetary obligations, unlike most taxes, are not indexed to wealth, income, or any other proxy for ability to pay. 575, 576 (Fla. 1939); Roach v. Oliver, 244 N.W. Press 2006) ([B]efore [our debt is transferred from Scrooge] we shall be ready with the money; and even though we were not, it would be a bad fortune indeed to find so merciless a creditor in his successor.). See id. (Oct. 21, 2014) (notes on file with Harvard Law School Library). 22-4513(a) (Supp. ^ See Armstrong v. Ayres, 19 Conn. 540, 546 (1849); Johnson v. Temple, 4 Del. And when Massachusetts abolished imprisonment for petty debts in 1811, the 2 See Matthew 18:29-31 (New International Version) on imprisonment for debt. Also in this category are costs of imprisonment (billed to inmates in 41 states), and of parole and probation (44 states). 775.08(3) (2015); Mo. The proper textual and analytical hook for that question is the Excessive Fines Clause.163 They would, however, challenge a states use of collection methods unavailable to civil creditors. The history of the United States is intertwined with debt and immigrants. App. ^ See id. Kenneth Edson St. Clair, "Debtor Relief in North Carolina during Reconstruction," NCHR 18 (July 1941). . 558.006 by Act effective Jan. 1, 2017, 2014 Mo. 1968) (en banc). Despite that, state judges continued to send people to jail for failing to pay court debts. I, 22; Iowa Const. Const. I, 20; Nev. Const. ^ See Complaint, Jenkins v. Jennings, supra note 24. Const. Take Wisconsin, where the municipal inability to create crimes prohibits them from punishing infractions by either fine or imprisonment. At the same time, however, legal commentators have been concerned about imprisonment for criminal debt since at least the 1960s. .); see also Jerome Hall, Interrelations of Criminal Law and Torts: I, 43 Colum. ^ See, e.g., Debt, Blacks Law Dictionary (10th ed. The "Abolition" of Debtors' Prisons The problems posed by nineteenth-century debtors' prisons in the United States differ in many ways from the challenges posed today by criminal justice debt. Many judges, including J. Scott Vowell, a circuit court judge in Alabama, felt pressured to make their courts financially self-sufficient, by using the threat of jail time established in those statutes to squeeze cash out of small-time debtors. ^ Strattman v. Studt, 253 N.E.2d 749, 753 (Ohio 1969). . Lanz v. Dowling, 110 So. Read More. Sept. 16, 2015); Complaint, Fant v. Ferguson, supra note 48; Equal Justice Under the Law, Shutting Down Debtors Prisons, http://equaljusticeunderlaw.org/wp/current-cases/ending-debtors-prisons/ [http://perma.cc./56WT-6RLC]. 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. That decision came in a 1983 case called Bearden v. How debt can lead to prison - Vox Did the United States abolished debtors prisons in 1929? .); Developments in the Law Policing, 128 Harv. The ACLU works in courts, legislatures, and communities to defend and preserve the individual rights and liberties that the Constitution and the laws of the United States guarantee everyone in this country. 357 (1889). (called for should hyperlink to. In January 2015, the ACLU filed a federal lawsuit challenging debt collection practices that have resulted in the jailing of people simply because they are poor. ^ See Mass. Murder is the crime, and help is the . ^ Id. ^ A state, of course, could repeal its ban on debtors prisons, but any attempt to do so would create an unlikely coalition of criminal and civil debtors, and the political-action costs of doing so are likely too high. In this process, indigent people who cannot afford to pay court fines and fees are routinely incarcerated in violation of their constitutional rights. For both regulatory offenses and costs, a reviewing court must assess and characterize the debt as civil or quasi-civil for the purposes of coverage under the state ban.