at 26065; Becky A. Vogt, State v. Allison: Imprisonment for Debt in South Dakota, 46 S.D. ^ Fuller v. Oregon, 417 U.S. 40, 42 (1974). ^ See id. (11 Allen) 264 (1865)). 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. I, 21 (No person shall be imprisoned for debt arising out of or founded on contract, express or implied . 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. The best evidence to date is the Department of Justices 2015 report on the Ferguson Police Department. 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. art. It happens for two reasons. art. 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. Debra Shoemaker Ford, a citizen of Harpersville, Ala., spent seven weeks in the county jail without ever appearing in court. ^ 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. Const. Stat. Id. [A]ny broadside pronouncement on their general validity would be inappropriate. Id. But the court will not issue a civil contempt order to coerce the debtor into paying. ^ Id. Debt collection practices like these have had a devastating impact on people of color in the Atlanta metropolitan area. ^ 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. Def. Peter J. Coleman, Debtors and Creditors in America: Insolvency, Imprisonment for Debt, and Bankruptcy, 1607-1900 (1974). Well never put our work behind a paywall, and well never put a limit on the number of articles you can read. debtors' prisons in the United States as they existed in the early years of the Republic. 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. Most importantly, explains John Pollock, the coordinator of the National Coalition for a Civil Right to Counsel, indigent defendants have a right to counsel in criminal cases, but not in civil ones. ^ Complaint, Cleveland v. Montgomery, supra note 14, at 2; see Stillman, supra note 11. The new American debtors prisons seem problematic along multiple dimensions. 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." art. 939.12 (2014) (defining crime). You can also contribute via. While the United States no longer has brick and mortar debtors' prisons, or "gaols for debtors" of private debts, the term "debtor's prison" in modern times sometimes refers to the practice of imprisoning indigent criminal defendants for matters related to either a fine or a fee imposed in criminal judgments. art. In July 2015, the ACLU of Michigan filed a motion asking the McComb County Circuit Court to take superintendent control over the courtroom of Judge Carl Gerds, who regularly imposes illegal pay or stay sentences on indigent men and women appearing before him. ^ See Letter from Christine Link, Exec. This concern is amplified by the growing trend toward outsourcing portions of the criminal justice system, such as collection, to private actors like Sentinel Offender Services, a probation company that wields the threat of imprisonment via contract with the state. When (and why) did the courts revert to jailing debtors? ^ Campbell Robertson, For Offenders Who Cant Pay, Its a Pint of Blood or Jail Time, N.Y. Times (Oct. 19, 2015), http://www.nytimes.com/2015/10/20/us/for-offenders-who-cant-pay-its-a-pint-of-blood-or-jail-time.html. References: George Philip Bauer, "The Movement against Imprisonment for Debt in the United States" (Ph.D. 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. 2255s Statute of Limitations. ACLU affiliates across the country have launched campaigns exposing courts that illegally and improperly jail people too poor to pay criminal justice debt, and seeking reform through public education, advocacy, and litigation. November 6, 2017 By: Bobby Casey, Managing Director GWP Do an internet search on debtors' prisons, and the top searches will Debtor prisons weren't formally abolished until the mid-19th Century. A regulatory offense might be better defined, then, as a strict liability offense where the statute authorizes only a reasonable fine (and not a more penal-minded sanction, such as imprisonment).122 In some states, offenses meeting this latter definition arent even defined as crimes.123 An altogether different type of definition would look instead to the historical origin of the offense.124. Indigent people who are unable to pay are incarcerated for weeks to months without ever seeing a judge, having a court hearing, or receiving help from a lawyer. art. See id. 774, 776 (Ala. 1938). This section advances arguments from text, purpose, and original meaning, which in many cases converge on this result. As much of the furor regarding contemporary debtors prisons revolves around municipalities, this is no minor point. 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. 1951) (citing In re Clifts Estate, 159 P.2d at 876), and Oklahoma, see Sommer v. Sommer, 947 P.2d 512, 519 (Okla. 1997); Lepak, 844 P.2d at 855. 1, 11; Ga. Const. I, 19; Kan. Const. Rev. Read More. 754, 75657 (Ohio 1925). ; see also Amended Complaint at 2, Cleveland v. City of Montgomery, 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). Is this debt private or public? once we encounter involuntary manslaughter, other crimes of negligence, and various statutory offenses). . This Note takes a first pass at this missing constitutional argument. ^ See, e.g., State ex rel. 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. the united states abolished debtors' prisons in 1929. Speaker Perhaps this pushback will resolve the concerns described above. So, in 1833, Congress abolished the practice under federal law. for the support of a spouse or dependent children, or for the support of an illegitimate child or children, or for alimony . It may leave too much discretion in the hands of the same legal actors responsible for the state of play. 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. . 4; Wash. Const. art. The warrants charge debtors with failure to pay, order their arrest and jailing in the Harrison County Adult Detention Center, and explicitly state that debtors can avoid jail only if they pay the full amount of fines and fees in cash. Many Californians do not have valid drivers licenses because they cannot afford to pay the exorbitant fines and fees associated with a routine traffic citation. 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. art. 2d 1066 (Ala. 2000) (applying Morissettes framework). Did the United States abolished debtors prisons in 1929? Yet, citizens like Sanders and Ford are, to this day, routinely jailed after failing to repay debt. Yet, as noted, they may be jailed for failing to show up at a civil hearing or for not resolving civil debt. milestone in the process of abolitionin the state of New York and throughout the United States. ^ See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. In addition, the ACLU asks for a "bench card" to remind judges in all courts across the state that jail is not a punishment for poverty. ^ See Charles Warren, Bankruptcy in United States History 52 (1935). 448, 448 (La. 277 (2014). ^ See, e.g., Alicia Bannon et al., Brennan Ctr. II, 40(3), para. Ann. 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. 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. While such holdings might raise a stare decisis issue in many instances, the risk of deprivations of liberty is high, and the world of criminal justice has changed so dramatically,139 that revisiting precedent might be jurisprudentially sound. In 19th Century Great Britain, more than half of all people incarcerated were there because of unpaid bills and debts. II, 18 (There shall be no imprisonment for debt, except in cases of fraud.). III, 38; Mich. Const. ^ 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. ^ See id. I, 16; R.I. Const. . ^ Complaint, Cleveland v. Montgomery, supra note 14, at 4. In Benton County, Wash., a quarter of those in jail are there because they owe fines and fees. And other judges will consider all nonpayment to be willful, unless or until the debtor can prove that he or she has exhausted absolutely all other sources of income by quitting smoking, collecting and returning used soda cans and bottles, and asking family and friends for loans. But there are many reasons to think theres a long road ahead. amend. In 2016, the ACLU of Maine helped to secure the passage of LD 1639, which includes a critical provision to help curb debtors prisons. I, 18 (No person shall ever be imprisoned for debt. (emphasis added)). This article has 3 letters to the editor. New York released prisoners owing less than $25 in 1818, doubled this threshold in 1825, and abolished imprisonment for debt in 1831. This law, which applies even to those who are found not guilty of a crime but still must pay court fees and fines, unfairly targets poor people who are unable to pay expensive legal fees, resulting in tens of thousands of Tennesseans losing their means of getting and keeping a job, supporting their families and successfully re-entering society. ^ See id. 293, 294 (Ga. 1905) ([I]n enacting the statute now under consideration, the [l]egislative purpose was not to punish . Read More. . 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. It calls for reform through legislative action and court rules. I, 5. 1312, 1316 (2015). (5 Gray) 530, 532 (1855); Eams v. Stevens, 26 N.H. 117, 120 (1852); Whitney v. Johnson, 12 Wend. Part I describes the contemporary problem with criminal justice debt in greater detail. The Twelve Tables, the oldest codification of Roman law we have, permitted its usage in 451 B.C. 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 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. 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.. But for those without friends in high places, debtors imprisonment could turn into a life sentence. 446, 447 (1846); State v. McCarroll, 70 So. But once a monetary obligation qualifies as a debt, states have implemented the bans protections in one of two ways: First, some states have held that their bans on imprisonment for debt remove the courts ability to issue contempt orders for nonpayment of qualifying debts.116 This is the no-hearing rule. The judgment creditor may pursue execution proceedings, attempting to attach nonexempt property, say, or garnish wages. 899, 902 (Iowa 1932). Rev. A year later, in Tate v. Short, the justices ruled that a defendant may not be jailed solely because he or she is too indigent to pay a fine. . The American tradition of debtors imprisonment seems to be alive and well. Laying the provisions out in one place seems necessary, as the stringcites available in the legal literature are now outdated. art. II, 18; Ark. ^ 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. 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. 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. 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. art. 1983); Kansas City v. Stricklin, 428 S.W.2d 721, 72526 (Mo. 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]. ^ 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. In other words, poor people with debt face criminal consequences but without the Constitutional protections afforded to criminal defendants. See Recent Legislation, 128 Harv. at 135. ^ See, e.g., Telephone Interview with Douglas K. Wilson, supra note 7. amend. See id. ^ The possibility that all violations of municipal ordinances (in some states) might fall under the bans is made more morally salient by the fact that many courts treat such violations as civil for the purposes of setting (lowered) procedural protections for defendants. at 15556 (discussing child support payments); id. 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. . And the problem is deeply engrained, at least in some places. 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. Nearly two centuries ago, the United States formally abolished the incarceration of people who failed to pay off debts. Kenneth Edson St. Clair, "Debtor Relief in North Carolina during Reconstruction," NCHR 18 (July 1941). We are working in state legislatures and courts, and with judicial officials to end these practices once and for all. at 2410, as a principal justification for overruling precedent in federal stare decisis doctrine). Read more. Debtors' Prisons 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. art. I, 16; Wyo. Krueger v. Stone, 188 So. . . 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 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. . ^ Georgias law provides guidance for courts in indigency determinations. Read more. art. Instead, it seems to be driven primarily by the need to raise revenue, an illegitimate state interest for punishment, and one that, in practice, functions as a regressive tax.9 Second, imprisonment for criminal justice debts has a distinctive and direct financial impact. ^ See, e.g., United States v. Balint, 258 U.S. 250, 25152 (1922) ([T]he general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime. 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. In 2014, the ACLU of Coloradosent lettersto three cities, demanding a stop to the issuance of "pay-or-serve" warrants. 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.). I, 11; Mont. Const. ^ See DOJ, Ferguson Investigation, supra note 29, at 3, 910. ^ Id. 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. at 66162. III, 30; Mo. ^ See, e.g., Harrison v. Harrison, 394 S.W.2d 128, 13031 (Ark. 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. But the spirit behind them ought to drive other constitutional actors executives, legislators, and citizens to take swift action.167. A conference called by advocates for the abolition of debtors' prisons voted unanimously for resolutions2 including the understanding that . ^ 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, e.g., Debt, Blacks Law Dictionary (10th ed. This kind of open-ended standard, taken on its own terms, may generate a number of problems. The percentage of people living in poverty in Biloxi has doubled since 2009. Under the International Covenant of Civil and Political Rights, the practice is listed as a civil-rights violation. 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.). In Lepak v. McClain, 844 P.2d 852 (Okla. 1992), the Oklahoma Supreme Court sustained the contempt-of-court power when used to require the delivery of . art. 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. 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. See Act of May 5, 2015, 2015 Ga. Laws 422. .). 2d 68, 72 (Miss. ^ The constitutional imprisonment-for-debt provisions are as follows: Ala. Const. 775.08(3) (2015); Mo. Victims can avoid jail only if they pay the entire amount of outstanding court fines and fees up front and in full. ^ See, e.g., City of Danville v. Hartshorn, 292 N.E.2d 382, 384 (Ill. 1973) (describing violations of municipal ordinances as quasi-criminal in character [but] civil in form (quoting City of Decatur v. Chasteen, 166 N.E.2d 29, 39 (Ill. 1960))). In October 2015, the ACLU of Washington and the ACLU filed a class-action lawsuit against Benton County in central Washington over its unconstitutional system for collecting court-imposed debts. In the United States, debtors' prisons were banned under federal law in 1833. 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. If an offender or ex-offender fails to pay any of this debt, the court will outsource the debt to a private debt collector, and the process of taking the debtor to court, described above, begins all over again. I, 20; Alaska Const. https://harvardlawreview.org/2015/11/state-bans-on-debtors-prisons-and-criminal-justice-debt-appendix. 549, 55758 (1941). Despite that, state judges continued to send people to jail for failing to pay court debts. ^ Cf., e.g., Kimble v. Marvel Entmt, LLC, 135 S. Ct. 2401, 241011 (2015) (identifying the ero[sion] of statutory and doctrinal underpinnings, id. But sometimes, the relevant statute explicitly tags the criminal justice debt as civil or as receiving civil protections.152, For example, in some jurisdictions, courts have held that violations of municipal ordinances constitute civil actions.153 In Kansas City v. Stricklin,154 for example, the Supreme Court of Missouri noted that these proceedings are not prosecutions for crime in a constitutional sense.155 Case law in a number of states supports this approach,156 although a fifty-state survey cannot be conducted here. Im confused, is this a civil or a criminal matter? 1976) (en banc); Zeitinger v. Mitchell, 244 S.W.2d 91, 9798 (Mo. 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. In the 1970s and 1980s, he says, we started to imprison more people for lesser crimes. at 46, and, of course, the death of Michael Brown at the hands of the police in August 2014, see id. Experts say that the trend, though ongoing, coincided with the rise of mass incarceration.. 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.