1915); Gooch v. Stephenson, 15 Me. ^ 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. This kind of open-ended standard, taken on its own terms, may generate a number of problems. James, 407 U.S. at 140 (quoting Rinaldi, 384 U.S. at 309). In the late 80s and early 90s, she says, there was a major uptick in the number of rules, at the state level but also in the counties, indicating jail time for failure to pay various fines and fees.. 293, 294 (Ga. 1905) ([I]n enacting the statute now under consideration, the [l]egislative purpose was not to punish . art. . I, 16; Wyo. 7. 1892). Can we count on your support today? 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. 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. Similarly, some collections statutes explicitly redefine certain debts as civil for the purposes of collection. A conference called by advocates for the abolition of debtors' prisons voted unanimously for resolutions2 including the understanding that . Const. 939.12 (2014) (defining crime). Ann. 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. 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. Opinion | The New Debt Prisons - The New York Times XIII; Class Action Complaint at 5758, Jenkins v. City of Jennings, No. I, 21 (No person shall be imprisoned for debt arising out of or founded on contract, express or implied, except in cases of fraud or breach of trust.); In re Sanborn, 52 F. 583, 584 (N.D. Cal. art. .). ^ See Class Action Complaint at 13, Bell v. City of Jackson, No. Imprisonment for nonpayment of contractual debt was a normal feature of American commercial life from the colonial era into the beginning of the nineteenth century.93 But with the rise of credit testing and the replacement of personal lending networks with secured credit, imprisonment for nonpayment came to be seen as a harsh and unwieldy sanction,94 and a growing movement pressed for its abolition. Read More. . 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. at 60. Theres probably no principled reason to distinguish between attorneys fees and other costs, like a judgment fee or a clerk fee, but doctrinally the Court may have felt especially sensitive to discrimination with respect to assigning lawyers, given its recent decision mandating counsel for indigent defendants in Gideon v. Wainwright, 372 U.S. 335 (1963). art. ^ While constitutional carve-outs for fraud will capture some debtors, it cant plausibly lower the protections of the ban to the level of Bearden: the failure to search for a job or to seek credit is hardly fraudulent. Additionally, the Supreme Court of Missouri recently amended its rules to require municipal judges to push back deadlines or allow installment plans for debtors who couldnt pay court costs, fines, and fees. ^ Id. The Rise of "Debtors' Prisons" in the US - JONATHAN TURLEY Rev. 1312, 1316 (2015). After the War of 1812, a costly stalemate, more and more Americans were holding debt, and the notion of imprisoning all these debtors seemed increasingly feudal. Moreover, America was seen as a country of immigrants, and many European immigrants had come here to escape debt. . at 65 (Washington). 4:15-cv-00253 (E.D. 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]. at 42, 53. II, 13 (exempting fines and penalties imposed for the violation of law), and states where case law has specifically mentioned crime, e.g., Plapinger v. State, 120 S.E.2d 609, 611 (Ga. 1961). Const. In the underlying criminal proceeding, Mr. Vaughn was not represented by counsel even though he was unemployed, looking for work, and could not afford a lawyer. 753, 767 (1943) (citing as generally accepted the maxim that an act does not make one guilty unless the mind is guilty). And most troubling, debtors' prisons create a racially-skewed, two-tiered system of justice in which the poor receive harsher, longer punishments for committing the same crimes as the rich, simply because they are poor. Victims can avoid jail only if they pay the entire amount of outstanding court fines and fees up front and in full. Through public education and advocacy, the ACLU of Colorado ultimately secured the passage ofHB 1061, which was signed into law in May 2014 and now bans debtors' prisons in Colorado. In 19th Century Great Britain, more than half of all people incarcerated were there because of unpaid bills and debts. That decision came in a 1983 case called Bearden v. As a result, many languished in prison and died there for the crime of their indigence. The report documents local courts that have a pattern of criminalizing poverty and perpetuating racial injustice through the unconstitutional enforcement of low-level offenses. at 133.). 2014) (Liability on a claim; a specific sum of money due by agreement or otherwise. 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). III, 30; Mo. art. Nevertheless, three specific kinds of criminal monetary obligations might actually be covered by the bans: fines for regulatory offenses, costs, and definitionally civil debts. 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. 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. They ultimately settled. 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. . . See id. .); see also Jerome Hall, Interrelations of Criminal Law and Torts: I, 43 Colum. Why Are We Still Sending People to Jail for Being Poor? It's Time to ^ Id. 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. And finally (of course) some states havent taken much action, if any, to address the issue nor has it been raised in the federal courts within the last decade, apart from the litigation previously discussed. Laws at 457 (codified at Mo. ^ See id. (9 Allen) 489 (1864)). Second, costs. . Since a large portion of criminal justice debt is routed through municipal courts that arent courts of record,26 systemic, nationwide data arent easily generated. 99-37-13 (West 2015) ([A] default . Indeed, in People ex rel. 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. See Thacher v. Williams, 80 Mass. . L. Rev. ^ Id. See Charles Dickens, A Christmas Carol and Other Christmas Books 7172 (Robert Douglas-Fairhurst ed., Oxford Univ. 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. 161.685(2) (1973) (omission in original)). . . Read more. See Act of July 9, 2015, 2015 Mo. Debtors' prisons waste taxpayer money and resources by jailing people who may never be able to pay their debts. ^ See Bannon et al., supra note 34, at 6. 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. art. 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. Daley v. Datacom Systems Corp., 585 N.E.2d 51 (Ill. 1991), the Supreme Court of Illinois held that municipal fines counted as debts for the purposes of the Collection Agency Act. 277 (2014). at 5. TCH: From Debtors' Prison to Bankruptcy - LinkedIn 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. Def. art. for the support of a spouse or dependent children, or for the support of an illegitimate child or children, or for alimony . The first is that judges may incarcerate debtors who fail to show up at debt-related proceedings. ^ James v. Strange, 407 U.S. 128, 130 n.3 (1972) (emphasis added) (quoting Kan. Stat. debtors' prisons in the United States as they existed in the early years of the Republic. In many jurisdictions, debtors were not freed until they acquired outside funds to pay what they owed, or else worked off the debt through years of penal labor. at 13233 (The statutes vary widely in their terms. Id. Regulatory offenses are assessed to deter low-level misbehavior, and costs are assessed to replenish the coffers of the criminal justice system, or to fund the government. . art. III, 38; Mich. Const. ^ See Fla. Stat. As much of the furor regarding contemporary debtors prisons revolves around municipalities, this is no minor point. v. Fritz, 449 U.S. 166, 179 (1980). VI, 15; Tenn. Const. Cf. Debt collection practices like these have had a devastating impact on people of color in the Atlanta metropolitan area. ^ See Natapoff, supra note 1, at 1098 & n.208; Developments in the Law Policing, supra note 5, at 1734. ^ See ACLU, In for a Penny: The Rise of Americas New Debtors Prisons 17 (2010), http://www.aclu.org/files/assets/InForAPenny_web.pdf [http://perma.cc/2C7C-X56S] (Louisiana); id. During the 20th century, on three separate occasions, the Supreme Court affirmed the unconstitutionality of incarcerating those too poor to repay debt. Two signatories of the Declaration of Independence, James Wilson, an associate justice of the Supreme Court, and Robert Morris, a close friend of George Washingtons, spent time in jail after neglecting loans. amend. PDF New American Debtors' Prisons - Harvard University 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. Const. Complaint, Fant v. Ferguson, supra note 48, at 53 (arguing governments may not take advantage of their position to impose unduly harsh methods of collection); Complaint, Jenkins v. Jennings, supra note 24, at 5859 (same). 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 . . The ACLU and ACLU affiliates are uncovering how debtors' prisons across the country undermine the criminal justice system and threaten civil rights and civil liberties. This ACLU report presents the results of a year-long investigation into modern-day debtors' prisons in Louisiana, Michigan, Ohio, Washington, and Georgia. The debt in James had this characteristic, as the underlying statute specified that the total amount . art. Const. I, 5. The Shackles Return: Why Debtors' Prisons Are - Prison Legal News 22-4513(a) (Supp. She was on probation because of a traffic violation. art. 1968) (en banc). Credit: Michelle Frankfurter, Jacquelyn Martin / AP Photos, Support our on-going litigation and advocacy work. Dir., ACLU of Ohio, et al., to Chief Justice Maureen OConnor, Ohio Supreme Court (Apr. Leaving traditional fines and restitution outside the scope of the state bans, this proposal would nonetheless engage with the most problematic types of criminal justice debt. L. Rev. ^ See, e.g., Alec Karakatsanis, Policing, Mass Imprisonment, and the Failure of American Lawyers, 128 Harv. art. Next came the fiscal crisis of the 2000s, during which many states were contending with budget deficits and looking for ways to save4. Read More. . 2:13-cv-00732 (M.D. PDF Abolition Is Not Just for Slavery: Abolishing Debtors' Prison in And many debtors currently caught in the cogs of the criminal justice system would have no such property. Lanz v. Dowling, 110 So. the act of securing the money or property of another with a fraudulent intent . . ^ See id. 227, 234 (2013). In fact, under the state law protections, criminal justice debtors would face a much friendlier inquiry than they would under Beardens freestanding equal protection jurisprudence.160 This is true under either of the two rules detailed above. art. Sch. ^ See DOJ, Ferguson Investigation, supra note 29, at 3, 910. ^ Cf., e.g., Kimble v. Marvel Entmt, LLC, 135 S. Ct. 2401, 241011 (2015) (identifying the ero[sion] of statutory and doctrinal underpinnings, id. Ct. 1834); Werdenbaugh v. Reid, 20 W. Va. 588, 593, 598 (1882) (discussing Virginia and West Virginia). Debtors' Prisons, Then and Now: FAQ | The Marshall Project The city of Montgomery settled in 2014, agreeing to conduct the constitutionally required hearings, produce audio recordings,55 provide public defenders, and adopt a presumption of indigence for defendants at or below 125% of the federal poverty level.56 In Ohio, Chief Justice Maureen OConnor took rapid action, issuing guidance materials to clarify the procedures trial and municipal judges should take before imprisoning debtors for failure to pay.57 The Supreme Court of Washington confirmed in March 2015 that the sentencing judge must make an individualized inquiry into the defendants current and future ability to pay before the court imposes [criminal justice debt].58 And in August 2015, Ferguson Municipal Judge Donald McCullin withdrew almost 10,000 arrest warrants issued before 2015.59 As for legislatures, in 2014, the Colorado General Assembly almost unanimously passed a bill requiring courts to make ability-to-pay determinations on the record before imprisoning debtors for nonpayment of debt.60 And in 2015, both the Georgia61 and Missouri62 legislatures passed laws addressing the issue. Despite that, state judges continued to send people to jail for failing to pay court debts. I, 20; Nev. Const. This talk will explore how modern-day debtors' prisons push peoplepredominantly people of colorinto cycles of poverty, debt, and the criminal legal system and will examine promising solutions. art. amend. art. I, 19; Pa. 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. At the same time, however, legal commentators have been concerned about imprisonment for criminal debt since at least the 1960s. Cleveland sued the city, alleging that Montgomerys debt collection procedures and her resultant incarceration violated the Alabama and U.S. Constitutions. And more than 30 years ago, the U.S. Supreme Court made it clear: Judges cannot send people to jail just because they are too poor to pay their court fines. New York released prisoners owing less than $25 in 1818, doubled this threshold in 1825, and abolished imprisonment for debt in 1831. Donations from readers like you are essential to sustaining this work. On the same day that it filed the lawsuit, the ACLU of Texas released a report, No Exit, Texas: Modern-Day Debtors Prisons and the Poverty Trap, which details the results of a six-month-long investigation into the enforcement of Class C Misdemeanor fines and fees in Texass Municipal and Justice of the Peace Courts. 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. See, e.g., Ex parte Phillips, 771 So. ^ Despite its strong language, the Massachusetts statute functioned this way: the indigent debtor was required to appear in court before receiving a discharge. See . ^ See infra notes 10315 and accompanying text. Below, seven frequently asked questions about the history and abolition of debtors' imprisonment, and its under-the-radar1 second act. . Imprisonment for Debt | NCpedia art. At an initial pass, states with cases affirming this rule include the following: Utah, see In re Clifts Estate, 159 P.2d 872, 876 (Utah 1945), Missouri, see State ex rel. Indeed, federal constitutional law may compel an answer on this point. November 6, 2017 By: Bobby Casey, Managing Director GWP Do an internet search on debtors' prisons, and the top searches will at 138. Read More. Rev. Finally, violations of monetary obligations that are statutorily defined as civil. 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. The ACLU had found that debtors' prisons were "flourishing" in this country, "more than two decades after the Supreme Court prohibited imprisoning those who are too poor to pay their legal debts." Many state courts could therefore plausibly hold today that fines for regulatory offenses constitute civil debt under their state constitutional bans. Legal Structure of Debtors' Prisons Debtors' prisons can be seen throughout the history of Western civilization in some form or another. (citing Commonwealth v. Farren, 91 Mass. I, 10; Colo. Const. It happens for two reasons. https://harvardlawreview.org/2015/11/state-bans-on-debtors-prisons-and-criminal-justice-debt-appendix. at 2410, as a principal justification for overruling precedent in federal stare decisis doctrine). Others assert that certain prison conditions arguably violate the Cruel and Unusual Punishments Clause or the Thirteenth Amendments prohibition on involuntary servitude. 1509, 152627. 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. Read More. Donations from readers like you are essential to sustaining this work. Nearly two centuries ago, the United States formally abolished the incarceration of people who failed to pay off debts. 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. 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. 14, 2015) (notes on file with Harvard Law School Library). 2d 68, 72 (Miss. Read More. 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, 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. I, 21; Minn. Const. Const. In response, the Ohio Supreme Court Chief Justice announced reforms to educate local courts on how to protect indigent defendants' rights. infra notes 5559 and accompanying text (discussing judicially created solutions in certain states). ^ See Mass. ^ See, e.g., Ala. Const.