2d 227, 233 (Ala. Crim. In the United States, debtors' prisons were banned under federal law in 1833. Why have two tests? ^ See id. art. 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.). And when Massachusetts abolished imprisonment for petty debts in 1811, the 2 See Matthew 18:29-31 (New International Version) on imprisonment for debt. 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]. 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]. 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.). Yet, citizens like Sanders and Ford are, to this day, routinely jailed after failing to repay debt. 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. ^ See Natapoff, supra note 1, at 1098 & n.208; Developments in the Law Policing, supra note 5, at 1734. art. 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. The second is to develop an economic theory of debtors' prisons, focusing on . 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. 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, e.g., Alec Karakatsanis, Policing, Mass Imprisonment, and the Failure of American Lawyers, 128 Harv. 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. In 2012 and 2013, the ACLU of Colorado sent letters to Chief Justice Bender of the Colorado Supreme Court and three Colorado municipalities. ^ For example, one author, writing in 1889, pointed out a number of ways in which the state bans were limited. debtors' prisons in the United States as they existed in the early years of the Republic. 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. J. Pub. ch. ^ See, e.g., Human Rights Watch, Profiting from Probation 45 (2014), https://www.hrw.org/sites/default/files/reports/us0214_ForUpload_0.pdf [http://perma.cc/Y8BN-GVZ2]; Karakatsanis, supra note 3, at 262. art. The Act of Congress established penal regulations and restrictions for persons jailed for property debt, tax evasion, and tax resistance. 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. ^ See Letter from Christine Link, Exec. XIII; Class Action Complaint at 5758, Jenkins v. City of Jennings, No. ^ 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. Contact us at fees@acluofnc.org or (919) 391-7290. ^ The 1849 Virginia statute took this approach, which was carried over into West Virginia when that state broke away from Virginia. F. 253, 26263 (2015); McLean, supra note 1, at 88591; Campbell Robertson, Suit Alleges Scheme in Criminal Costs Borne by New Orleanss Poor, N.Y. Times (Sept. 17, 2015), http://www.nytimes.com/2015/09/18/us/suit-alleges-scheme-in-criminal-costs-borne-by-new-orleanss-poor.html. ^ 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. ^ See id. VI, 15 (No person shall be imprisoned for debt arising out of or founded upon a contract.). Led by James Herttell, Chairman and advocate for abolition, the committee resolved that "all . Bearden and imprisonment-for-debt claims could operate side-by-side in a manner thats both administrable and functionally appealing. I, 15; Ohio Const. Matthew 18:24-26 . 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. at 135. See Permanent Injunction, Jenkins v. City of Jennings, No. ^ This possibility is made more credible by Justice OConnors note in the related case of Bearden v. Georgia that [d]ue process and equal protection principles converge in the Courts analysis in these cases. 461 U.S. 660, 665 (1983). Yet, as noted, they may be jailed for failing to show up at a civil hearing or for not resolving civil debt. 1983). 99-37-13 (West 2015) ([A] default . VI, 15; Tenn. Const. And in Ferguson, Mo., simmering anger with the police and court system has given rise to a pair of lawsuits aimed at the local practice of imprisoning indigent debtors. at 18, misleading information about court dates and appearances, see id. at 131. ^ See id. art. Given that we are looking at a substantial sales tax shortfall, its not an insignificant issue.44, In 2013, the municipal court issued over 9000 warrants for failure to pay fines and fees resulting in large part from minor violations such as parking infractions, traffic tickets, or housing code violations.45 The city also tacked on fines and fees for missed appearances and missed payments and used arrest warrants as a collection device.46, The problem has become especially severe or has at least drawn increased attention within the past several years.47 In 2015, nonprofits Equal Justice Under Law and ArchCity Defenders sued the cities of Ferguson48 and Jennings,49 Missouri, alleging that they were running the equivalents of modern debtors prisons.50 The Ferguson complaint described a Kafkaesque journey through the debtors prison network of Saint Louis County a lawless and labyrinthine scheme of dungeon-like municipal facilities and perpetual debt.51 Equal Justice Under Law and the Southern Poverty Law Center have also sued a handful of other municipalities,52 and the ACLU has pursued an awareness campaign in a number of states, sending letters to judges and mayors in Ohio53 and Colorado.54. 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. I, 20 (That no person shall be imprisoned for debt.); Ga. Const. Under the International Covenant of Civil and Political Rights, the practice is listed as a civil-rights violation. One-Time Monthly Annual. 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 . at 58 (Douglas, J., concurring in the judgment); see also id. 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]. Did the US ever have debtors prison? - Promisekit.org at 662; see also id. Detail In England, debtors owing money could be easily detained by the courts for indefinite periods, being kept in debtor's prisons. 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. "M'aidez, m'aidez," says the international distress signal. at 668. The report exposes a counterproductive system for the collection of criminal justice debt. But for those without friends in high places, debtors imprisonment could turn into a life sentence. Kenneth Edson St. Clair, "Debtor Relief in North Carolina during Reconstruction," NCHR 18 (July 1941). L. Rev. ^ James v. Strange, 407 U.S. 128, 130 n.3 (1972) (emphasis added) (quoting Kan. Stat. 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. ^ Id. See id. at 133.). . the act of securing the money or property of another with a fraudulent intent . The first line of cases prohibits states from discriminating on the basis of indigence when contemplating imprisonment for nonpayment of criminal justice debt. In this context, exemptions laws are provisions that exempt a certain amount of personal property from attachment and garnishment. 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. For case law, see, for example, Towsend v. State, 52 S.E. Read more. at 4546. at 39899; Williams, 399 U.S. at 242. See, e.g., Letter from Mark Silverstein, Legal Dir., ACLU of Colo., and Rebecca T. Wallace, Staff Atty, ACLU of Colo., to Chief Justice Michael Bender, Colo. Supreme Court, and Judge John Dailey, Chair, Criminal Procedure Comm. may be collected by any means authorized . 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. . (quoting lawyer Alec Karakatsanis)); The New Debtors Prisons, The Economist (Nov. 16, 2013), http://www.economist.com/news/united-states/21589903-if-you-are-poor-dont-get-caught-speeding-new-debtors-prisons [http://perma.cc/5M9N-74HT]. 1965). at 256 (citing Barnes v. State, 19 Conn. 398 (1849)). Did the United States abolished debtors prisons in 1929? 939.12 (2014) (defining crime). . Imprisonment for indebtedness was commonplace. The percentage of people living in poverty in Biloxi has doubled since 2009. . ^ Id. Why Are We Still Sending People to Jail for Being Poor? It's Time to & Mary L. Rev. . . What are some types of debt that people are sent to jail for not paying? See Ill. Const. III, 38 ([A] valid decree of a court . at 29 (Michigan); id. 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. Lanz v. Dowling, 110 So. I, 17; Wis. Const. But some strict liability crimes, like statutory rape, are more easily analogized to traditional crimes despite the absence of a mens rea. ^ 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. ^ See infra notes 10315 and accompanying text. Despite that, state judges continued to send people to jail for failing to pay court debts. 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. at 43 (Ohio); id. 2255s Statute of Limitations. 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]. Dist. See, e.g., State v. Anton, 463 A.2d 703, 705 (Me. They are still generally accepted as such in this country. Jerome Hall, Prolegomena to a Science of Criminal Law, 89 U. Pa. L. Rev. Did the United States abolished debtors prisons in 1929? . 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. The debt in James had this characteristic, as the underlying statute specified that the total amount . As she was booked and processed, she learned that she had been jailed because she owed debt $730 to be precise, related to an unpaid medical bill. I, 16; Wyo. the united states abolished debtors' prisons in 1929 Those who did not pay the debts so meticulously recorded by the shivering Bob Cratchit could have been thrown in prison by Scrooge part of why he was so hated and feared by his debtors. In 2013, the ACLU of Ohio issuedOutskirts of Hope, a report documenting blatantly illegal debtors' prisons around the state. Donations from readers like you are essential to sustaining this work. 556.061(29)) (defining infraction). Rev. (5 Gray) at 533 (noting that a major purpose of the statute was to punish fraudulent debtors). (It may be . . 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. II, 27; Neb. I, 12; Miss. Peter J. Coleman, Debtors and Creditors in America: Insolvency, Imprisonment for Debt, and Bankruptcy, 1607-1900 (1974). How debt can lead to prison - Vox Courts revive practice of jailing people for failing to pay legal fees If debtors imprisonment is unconstitutional, why does it happen? (Oct. 21, 2014) (notes on file with Harvard Law School Library). PDF Abolition Is Not Just for Slavery: Abolishing Debtors' Prison in diss., Harvard University, 1935). 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. ; see also Amended Complaint at 2, Cleveland v. City of Montgomery, No. See Order Dated December 23, 2014, re: Rule 37.65 Fines, Installment or Delayed Payments Response to Nonpayment (Mo. ^ See Settlement Agreement, Cleveland v. Montgomery, supra note 18, at 1. 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 History of America's Debtors' Prisons: The Shackles Return - Global I, 20; Nev. Const. Professor Jerome Hall, writing in 1941, said: [The act requirement] and the mens rea principle constituted the two most basic doctrines of [Bishops] treatise on criminal law. Most importantly, the 1983 decision in Bearden v. Georgia compelled local judges to distinguish between debtors who are too poor to pay and those who have the financial ability but willfully refuse to do so. Her crime was a failure to pay the monthly fees mailed to her by a private probation company, called Judicial Correction Services. In 19th Century Great Britain, more than half of all people incarcerated were there because of unpaid bills and debts. A debtors prison is any prison, jail, or other detention facility in which people are incarcerated for their inability, refusal, or failure to pay debt. art. 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. 549, 55758 (1941). ^ See Krishnadev Calamur, A Judges Order Overhauls Fergusons Municipal Courts, The Atlantic (Aug. 25, 2015), http://www.theatlantic.com/national/archive/2015/08/judges-order-overhauls-fergusons-municipal-courts/402232 [http://perma.cc/7R4J-CPCZ]. Ala. Sept. 12, 2014) [hereinafter Settlement Agreement, Cleveland v. Montgomery], http://www.splcenter.org/sites/default/files/downloads/case/exhibit_a_to_joint_settlement_agreement_-_judicial_procedures-_140912.pdf [http://perma.cc/ZAH6-DFQS]. v. Fritz, 449 U.S. 166, 179 (1980). The Court also required that a court consider whether alternate sanctions (such as a restructured payment schedule or community service) could meet the states interest in punishment and deterrence before resorting to incarceration. Read more. 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. milestone in the process of abolitionin the state of New York and throughout the United States. TCH: From Debtors' Prison to Bankruptcy - LinkedIn Debtors' Prisons | American Civil Liberties Union L. Rev. Laying the provisions out in one place seems necessary, as the stringcites available in the legal literature are now outdated. Jailing the indigent for their failure to meet contractual obligations was considered primitive by ancient Greek and Roman politicians, and remains illegal and unheard of in most developed countries. Posted on . See id. As a result, many languished in prison and died there for the crime of their indigence. ^ 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. I, 19; S.D. See Settlement Agreement, Cleveland v. Montgomery, supra note 18; Agreement to Settle Injunctive and Declaratory Relief Claims, Mitchell v. City of Montgomery, No. See U.S. Const. ^ See Recent Legislation, supra note 23, at 131619 (criticizing the lack of such a definition in recent Colorado legislation). Laws 941). ^ 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. Congress abolished debtors' prisons in 1833. art. 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. 1509, 152627. 479.353(2) (West, Westlaw through 2015 Veto Sess.)) art. Debtor's prisons were abolished in the United States in 1833. The doctrinal carve-outs for crime suggest that the state bans wouldnt apply to criminal justice debt. http://www.npr.org/2014/05/24/314866421/measures-aimed-at-keeping-people-out-of-jail-punish-the-poor. 1706, 172729 (2015). Speaker Thats confusing for debtors, too. The Twelve Tables, the oldest codification of Roman law we have, permitted its usage in 451 B.C. for the support of a spouse or dependent children, or for the support of an illegitimate child or children, or for alimony . Ending Modern-Day Debtors' Prisons Nearly two centuries ago, the United States formally abolished the incarceration of people who failed to pay off debts.