^ 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. Read More. 778, 787 n.79 (1969) (listing sources). 556.016 (2000), repealed and replaced by Act effective Jan. 1, 2017, 2014 Mo. ^ Id. Posted on . A. . See id. See Settlement Agreement, Cleveland v. Montgomery, supra note 18; Agreement to Settle Injunctive and Declaratory Relief Claims, Mitchell v. City of Montgomery, No. So what do we really know about modern-day debtors imprisonment how it returned, when, and where? Read More. ^ It may also be worth pointing out that James and Fuller dealt most concretely with attorneys fees. (9 Allen) 489 (1864)). Justice Douglas agreed the issue wasnt properly in front of the Court. In 19th Century Great Britain, more than half of all people incarcerated were there because of unpaid bills and debts. for the support of a spouse or dependent children, or for the support of an illegitimate child or children, or for alimony . 1055, 109899 (2015). Dec. 23, 2014) (en banc), http://www.courts.mo.gov/sup/index.nsf/d45a7635d4bfdb8f8625662000632638/fe656f36d6b518a886257db80081d43c [http://perma.cc/BTX3-4ERC]. Indeed, costs function more as fees for service or taxes than as punishments. The case was brought on behalf of Kevin Thompson, a black teenager in DeKalb County, Georgia. ^ See Recent Legislation, supra note 23, at 1313 n.13. art. Debra Shoemaker Ford, a citizen of Harpersville, Ala., spent seven weeks in the county jail without ever appearing in court. So far, the vast majority of academic commentators, litigators, legislatures, and other legal actors have focused on the federal protections extended under Bearden and its predecessors.165 Bearden represents a powerful tool for change, yet state law bans on debtors prisons could provide even greater protections for certain criminal justice debtors where the states interest in collecting isnt penal. II, 40(3), para. A provision of the law permits courts to waive mandatory fines in some circumstances. The courts had ordered their incarceration for non-payment of criminal justice debt without affording hearings to determine their abilitytopay or providing the option of paying through payment plans or community service. Experts say that the trend, though ongoing, coincided with the rise of mass incarceration.. Const. http://www.aclu.org/files/assets/InForAPenny_web.pdf, http://www.npr.org/blogs/codeswitch/2015/02/08/384332798/civil-rights-attorneys-sue-ferguson-over-debtors-prisons, http://www.economist.com/news/united-states/21589903-if-you-are-poor-dont-get-caught-speeding-new-debtors-prisons, http://equaljusticeunderlaw.org/wp/wp-content/uploads/2015/02/Complaint-Ferguson-Debtors-Prison-FILE-STAMPED.pdf, http://equaljusticeunderlaw.org/wp/wp-content/uploads/2014/07/Final-Settlement-Agreement.pdf, http://equaljusticeunderlaw.org/wp/current-cases/ending-debtors-prisons/, http://www.acluohio.org/wp-content/uploads/2013/04/2013_0404LetterToOhioSupremeCourtChiefJustice.pdf, http://static.aclu-co.org/wp-content/uploads/2013/12/2012-10-10-Bender-Dailey-Wallace.pdf, http://static.aclu-co.org/wp-content/uploads/2014/02/2013-12-16-Atchison-ACLU.pdf, http://www.supremecourt.ohio.gov/Publications/JCS/finesCourtCosts.pdf, http://jurist.org/paperchase/2014/02/ohio-supreme-court-warns-judges-to-end-debtors-prisons.php, http://www.theatlantic.com/national/archive/2015/08/judges-order-overhauls-fergusons-municipal-courts/402232, http://www.courts.mo.gov/sup/index.nsf/d45a7635d4bfdb8f8625662000632638/fe656f36d6b518a886257db80081d43c. We accept credit card, Apple Pay, and Google Pay. Do debtors' prisons still exist? | HowStuffWorks art. Facing this pressure from advocates and litigants, cities, courts, and legislatures have made some changes. Debtors' prisons waste taxpayer money and resources by jailing people who may never be able to pay their debts. More problematically, these monetary obligations, unlike most taxes, are not indexed to wealth, income, or any other proxy for ability to pay. See, e.g., Lea Shepard, Creditors Contempt, 2011 BYU L. Rev. ^ Id. . 2d 1066 (Ala. 2000) (applying Morissettes framework). 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. 2:14-cv-00186 (M.D. The late Professor William J. Stuntz also noted that regulatory crimes and core crimes like murder have dramatically different histories. Stuntz, supra, at 512. Const. As one might guess, the states have split on whether costs fall within the scope of the bans. at 132. The statewide lawsuit was filed on behalf of drivers who have had their drivers licenses suspended in violation of their statutory, due process, and equal protection rights. Now, those state debtors' prisons are making a comeback and, just like in the past, are having a disproportionate impact on the poor and working-class. L. 275 (2014). In 2014, the ACLU of Washington and Columbia Legal Services issuedModern-Day Debtors' Prisons: The Way Court-Imposed Debts Punish People for Being Poor. Read more. ^ See, e.g., Joseph Shapiro, Civil Rights Attorneys Sue Ferguson over Debtors Prisons, NPR (Feb. 8, 2015, 9:03 PM), http://www.npr.org/blogs/codeswitch/2015/02/08/384332798/civil-rights-attorneys-sue-ferguson-over-debtors-prisons (Weve seen the rise of modern American debtors prisons, and nowhere is that phenomenon more stark than in Ferguson and Jennings municipal courts and municipal jails. .); Developments in the Law Policing, 128 Harv. They therefore impose the burden of funding the government on those individuals and communities least equipped to bear the weight. Thats confusing for debtors, too. From the late 1600s to the early 1800s2, many cities and states operated actual debtors prisons, brick-and-mortar facilities that were designed explicitly and exclusively for jailing negligent borrowers some of whom owed no more than 60 cents. Laying the provisions out in one place seems necessary, as the stringcites available in the legal literature are now outdated. Her crime was a failure to pay the monthly fees mailed to her by a private probation company, called Judicial Correction Services. Stories like Clevelands have inspired a naissance of advocacy and scholarship that challenge the legal basis for incarceration upon nonpayment of criminal justice debts.19 But existing approaches have failed to recognize an alternate potential font of authority: state bans on debtors prisons.20 Most commentators have thus far focused on the 1983 Supreme Court case Bearden v. Georgia.21 Bearden held that a court cannot, consistently with the Fourteenth Amendment, revoke parole for failure to pay criminal debt when the debtor has made sufficient bona fide efforts to pay.22 Bearden established a powerful (albeit somewhat vague) standard that protects debtors whose inability to pay isnt willful, by requiring courts to hold ability-to-pay hearings.23 But, as argued below, certain types of criminal justice debtors fall under an even higher degree of protection than Bearden provides. In the United States, debtors' prisons were banned under federal law in 1833. Second, even in states that allow contempt proceedings, most courts require a sharply limited (and debtor-favorable) inquiry. Miss. As much of the furor regarding contemporary debtors prisons revolves around municipalities, this is no minor point. at 6061. 7. Const. VI, 15; Tenn. Const. How debt can lead to prison - Vox ^ See Telephone Interview with Douglas K. Wilson, Colo. State Pub. The United States was, after all, the first major nation to get rid of debt prisons in the 1820s and 1830s and embrace "fresh starts" for bankrupts at a time when "debtors were imprisoned. monetary penalties imposed as a condition of a sentence, including, say, a traffic ticket; fees, which may include jail book-in fees, bail investigation fees5, public defender application fees, drug testing fees, DNA testing fees, jail per-diems for pretrial detention, court costs, felony surcharges, public defender recoupment fees, and on and on and on; and restitution, made to the victim or victims for personal or property damage. At the same time, however, legal commentators have been concerned about imprisonment for criminal debt since at least the 1960s. Credit: Michelle Frankfurter, Jacquelyn Martin / AP Photos, Support our on-going litigation and advocacy work. .). . 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. ^ See infra notes 10315 and accompanying text. Const. infra notes 5559 and accompanying text (discussing judicially created solutions in certain states). 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.). L. Rev. When (and why) did the courts revert to jailing debtors? In the first category are credit card debt, unpaid medical bills and car payments, and payday loans and other high-interest, short-term cash advances, which indigent borrowers rely on but struggle to repay. ^ See id. $250/year. https://harvardlawreview.org/2015/11/state-bans-on-debtors-prisons-and-criminal-justice-debt-appendix. In 1970, in Williams v. Illinois, the high court decided that a maximum prison term could not be extended because the defendant failed to pay court costs or fines. . at 138. Stat. identified property owned by and in the possession or control of the judgment debtor . at 558 (arguing that mens rea, like the act requirement, becomes little more than a point of orientation. 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. J. Pub. Yet, citizens like Sanders and Ford are, to this day, routinely jailed after failing to repay debt. Also, criminal-justice debt affects private creditworthiness and eligibility for a drivers license, making it harder to get a job, get a home, get a loan, or otherwise find a way to avoid jail, repay the debt and regain solid economic footing. References: George Philip Bauer, "The Movement against Imprisonment for Debt in the United States" (Ph.D. 4:15-cv-00252 (E.D. They are still generally accepted as such in this country. Jerome Hall, Prolegomena to a Science of Criminal Law, 89 U. Pa. L. Rev. for the enforcement of a judgment.); Mo. a failure to pay a debt, but . ^ See, e.g., Robertson, supra note 3 (describing how a debtors mother and sister scraped together what money they [could]). ^ Id. Perhaps this pushback will resolve the concerns described above. See Act of July 9, 2015, 2015 Mo. The report documents the routine jailing of poor people across the state solely for their failure to pay court-imposed fines and fees. In these cases, the crime is not failure to pay, but rather failing to appear in court, disobeying a court order, or contempt of court.. See Charles Dickens, A Christmas Carol and Other Christmas Books 7172 (Robert Douglas-Fairhurst ed., Oxford Univ. ^ See id. Const. Why have two tests? See Appendix, State Bans on Debtors Prisons and Criminal Justice Debt, 129 Harv. Nevertheless, three specific kinds of criminal monetary obligations might actually be covered by the bans: fines for regulatory offenses, costs, and definitionally civil debts. Matthew 18:24-26 . As the Ohio Supreme Court put it: In todays society, no one, in good conscience, can contend that a nine-dollar fine for crashing a stop sign is deserving of three days in jail if one is unable to pay.140. See sources cited supra note 95. In this context, exemptions laws are provisions that exempt a certain amount of personal property from attachment and garnishment. Meanwhile, with the advent of bankruptcy law, individuals were given a way out of insurmountable debt, and creditors were made to share some of the risk inherent in a loan transaction. ^ 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. 359, 360 (N.Y. Sup. . I, 21; Minn. Const. ^ Recent Legislation, supra note 23, at 1314. So, in 1833, Congress abolished the practice under federal law. Stat. at 58 (Douglas, J., concurring in the judgment); see also id. 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. ^ See Sarah Stillman, Get Out of Jail, Inc., New Yorker (June 23, 2014), http://www.newyorker.com/magazine/2014/06/23/get-out-of-jail-inc [http://perma.cc/5SU8-EF72]. 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. The ACLU of North Carolina is a member of the Court Costs and Fees Working Group, which is working to end the practice of modern-day debtors' prisons in North Carolina. . To start, state debtor protections would not merely duplicate the federal ones. Laws 453. 18; Md. 543, 550 n.45 (1976); Note, Imprisonment for Debt: In the Military Tradition, 80 Yale L.J. May Day and Abolition - CounterPunch.org See U.S. Const. Const. As of the time of publication, Equal Justice Under Law had litigated (or is litigating) similar issues against Jennings, Missouri; Ferguson, Missouri; New Orleans, Louisiana; Jackson, Mississippi; and Rutherford County, Tennessee. at 61 (Marshall, J., dissenting); see also id. 1976) (en banc); Zeitinger v. Mitchell, 244 S.W.2d 91, 9798 (Mo. The law implements the recommendations of Maines Intergovernmental Pretrial Justice Reform Task Force, which was convened in 2015 to make recommendations to lessen the human and financial cost of keeping so many people in jail who dont need to be there. Others assert that certain prison conditions arguably violate the Cruel and Unusual Punishments Clause or the Thirteenth Amendments prohibition on involuntary servitude. ^ See Tate, 401 U.S. at 400; Williams, 399 U.S. at 242 n.19. This kind of open-ended standard, taken on its own terms, may generate a number of problems. ^ See id. ^ But cf. See Vogt, supra note 94, at 335 n.9; Note, Body Attachment and Body Execution: Forgotten but Not Gone, 17 Wm. ^ See Bannon et al., supra note 34, at 6. . In the latest front in the nationwide fight against debtors' prisons, on June 1, 2017, the American Civil Liberties Union filed a proposed class action lawsuit in federal court to challenge the illegal arrest and incarceration of poor people in Lexington County, South Carolina, without a hearing or representation by counsel. ^ E.g., In re Nichols, 749 So. And it seems ill-equipped to protect impoverished debtors who see no reason to embark upon, much less document, futile searches for credit or employment. Because the purpose of costs is not purely or even mostly to punish, they are arguably debts within the text of the state bans. The question was, how? . 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. Const. In 2011, the ACLU and the ACLU of Michiganfiled lawsuits challenging "pay or stay" sentencesimposed onfive peoplewho were jailed by Michigan courts for being too poor to pay court fines. Accessibility, A Christmas Carol and Other Christmas Books, The Collapse of American Criminal Justice, Investigation of the Ferguson Police Department, Criminal Justice Debt: A Barrier to Reentry, In for a Penny: The Rise of Americas New Debtors Prisons, Office of Judicial Servs., Supreme Court of Ohio, Collection of Fines and Court Costs in Adult Trial Courts, http://www.nytimes.com/2015/09/18/us/suit-alleges-scheme-in-criminal-costs-borne-by-new-orleanss-poor.html, http://aclu-wa.org/sites/default/files/attachments/Modern%20Day%20Debtor%27s%20Prison%20Final%20(3).pdf, http://www.newyorker.com/magazine/2014/06/23/get-out-of-jail-inc, http://www.splcenter.org/sites/default/files/downloads/case/amended_complaint-_harriet_cleveland_0.pdf, http://www.splcenter.org/sites/default/files/downloads/case/exhibit_a_to_joint_settlement_agreement_-_judicial_procedures-_140912.pdf, http://equaljusticeunderlaw.org/wp/wp-content/uploads/2015/02/Complaint-Jennings-Debtors-Prisons-FILE-STAMPED.pdf, http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf, https://www.hrw.org/sites/default/files/reports/us0214_ForUpload_0.pdf, http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf, https://assets.documentcloud.org/documents/2455850/15-10-09-class-action-complaint-stamped.pdf, http://www.nytimes.com/2015/10/20/us/for-offenders-who-cant-pay-its-a-pint-of-blood-or-jail-time.html. That decision came in a 1983 case called Bearden v. 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? I, 11; S.C. Const. And when Massachusetts abolished imprisonment for petty debts in 1811, the 2 See Matthew 18:29-31 (New International Version) on imprisonment for debt. See sources cited supra note 95. Nonprofit journalism about criminal justice, A nonprofit news organization covering the U.S. criminal justice system, Intimate portraits of people who have been touched by the criminal justice system. See J.C. Thomson, Imprisonment for Debt in the United States, 1 Jurid. 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. art. But aside from clear policy concerns, they may violate constitutional laws at both the federal and state levels. at 55 (Georgia); id. 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. Other. Read more. ^ A more complete history would undoubtedly be helpful, but remains outside the scope of this Note. . Now, those state debtors' prisons are making a comeback and, just like in the past, are having a disproportionate impact on the poor and working-class. The investigation revealed that Ferguson law enforcement including both police and the municipal court was deployed to raise revenue.43 In March 2010, the citys finance director emailed thenPolice Chief Thomas Jackson: [U]nless ticket writing ramps up significantly before the end of the year, it will be hard to significantly raise collections next year. III, 38 ([A] valid decree of a court . 293, 294 (Ga. 1905) ([I]n enacting the statute now under consideration, the [l]egislative purpose was not to punish . Bearden and imprisonment-for-debt claims could operate side-by-side in a manner thats both administrable and functionally appealing. 2:13-cv-00732 (M.D. I, 18; Tex. But, as argued below, the state bans on debtors prisons can supplement Bearden and they may well be relevant to the inquiry under James. ^ See, e.g., Karakatsanis, supra note 3, at 26364. art. Imprisoning someone because she cannot afford to pay court-imposed fines or fees violates the Fourteenth Amendment promises of due process and equal protection under the law. [A]ny broadside pronouncement on their general validity would be inappropriate. Id. Read More. Court costs and fees are civil, not criminal, obligations and may be collected only by the methods provided for the collection of civil judgments. Office of Judicial Servs., supra note 57 (citing Strattman, 253 N.E.2d at 754). 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. 2010). For example, a state could plausibly maintain that imprisonment for nonpayment of costs attendant to crime helps to deter criminal behavior, such that abolishing such imprisonment for civil debts, while maintaining it for criminal debts, is reasonable. 1509, 152627. Copyright 1887-2023 Harvard Law Review. 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. Debtors' Prison Relief Act of 1792 was a United States federal statute enacted into law by the first President of the United States George Washington on May 5, 1792. It shows that poor defendants are being jailed at increasingly alarming rates for failing to pay legal debts, creating a racially-skewed, two-tiered system of justice that violates the basic constitutional rights of poor people. 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. Def., Office of the State Pub. 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. Code Ann. v. Rodriguez, 411 U.S. 1, 10506 (1973) (Marshall, J., dissenting); Johnson v. Bredesen, 624 F.3d 742, 749 (6th Cir. Can we count on your support today? ^ The constitutional imprisonment-for-debt provisions are as follows: Ala. Const. Knowing that youre behind us means so much. at 133.). art. I, 14; N.J. Const. Most recently, it filed a successful petition for habeas corpus for Richard Vaughan, a man sentenced to 18 days in jail for failing to pay a $895 fine that he could not afford.
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