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. art. In 2012 and 2013, the ACLU of Colorado sent letters to Chief Justice Bender of the Colorado Supreme Court and three Colorado municipalities. 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. 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. DRAFT DO NOT CITE OR CIRCULATE 3 by Charles Dickens in works like David Copperfield.7 "The State of Georgia has come a long way since it was founded as a safe haven for debtors," laments a student commentator.8 "Yes, America, we have returned to debtors' prisons," declares one sociologist.9 Take the story of Harriet Cleveland as a window into the problem: Credit: Michelle Frankfurter, Jacquelyn Martin / AP Photos, Support our on-going litigation and advocacy work. 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. Some judges will rule that the debtor is not legitimately indigent and is, instead, willfully neglecting the debt because the debtor showed up to the courtroom wearing a flashy jacket or expensive tattoos. ^ See, e.g., Fla. Stat. at 668. Many judges, including J. Scott Vowell, a circuit court judge in Alabama, felt pressured to make their courts financially self-sufficient, by using the threat of jail time established in those statutes to squeeze cash out of small-time debtors. ^ See id. Second, costs. 2d 68, 72 (Miss. I, 19; Pa. Const. III, 38 ([A] valid decree of a court . ^ See, e.g., Karakatsanis, supra note 3, at 26364. ^ See Armstrong v. Ayres, 19 Conn. 540, 546 (1849); Johnson v. Temple, 4 Del. (14 Gray) 324, 328 (1859). But other carve-outs for crime130 arent so clean-cut, as their purpose likely had nothing to do with regulatory offenses. I, 15; Ohio Const. 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. ^ 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; Kan. Const. Imprisonment for indebtedness was commonplace. ^ 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. ^ But cf. art. at 15556 (discussing child support payments); id. Mo. ^ See, e.g., State ex rel. ^ Cf., e.g., Miss. once we encounter involuntary manslaughter, other crimes of negligence, and various statutory offenses). 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. ^ See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. I, 19; Idaho Const. The best evidence to date is the Department of Justices 2015 report on the Ferguson Police Department. 4:15-cv-00252 (E.D. ^ Id. See Act of May 5, 2015, 2015 Ga. Laws 422. if the judgment debtor unjustly refuses to apply the identified property towards the satisfaction of a judgment; however, the court struck it down under the ban on imprisonment for debt when contempt was used to require the judgment debtor to set aside and deliver a portion of his/her future income toward the satisfaction of the judgment debt. Id. This kind of open-ended standard, taken on its own terms, may generate a number of problems. 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). $95/year. for the enforcement of a judgment.); Mo. Const. On this understanding of the law, debtor protections co-vary quite straightforwardly with the states interest in collecting. ^ See Tate, 401 U.S. at 400; Williams, 399 U.S. at 242 n.19. ^ See Recent Legislation, supra note 23, at 131619 (criticizing the lack of such a definition in recent Colorado legislation). See id. ^ See Bannon et al., supra note 34, at 6. In 2014, the ACLU of Coloradosent lettersto three cities, demanding a stop to the issuance of "pay-or-serve" warrants. 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. 1509, 152627. (Oct. 21, 2014) (notes on file with Harvard Law School Library). 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; see also, e.g., Mich. Const. ^ Id. Part IV explains why it makes good sense to subject the new debtors prisons to the two-tiered regulation of both Bearden and these state bans, in the form of new imprisonment-for-debt claims. ^ See, e.g., Alicia Bannon et al., Brennan Ctr. art. 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. 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. . ^ Two lawsuits against the City of Montgomery have settled. 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]. Stat. The problems posed by nineteenth-century debtors prisons in the United States differ in many ways from the challenges posed today by criminal justice debt. 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. . They therefore impose the burden of funding the government on those individuals and communities least equipped to bear the weight. of Ret. ^ Georgias law provides guidance for courts in indigency determinations. 359, 360 (N.Y. Sup. They lead to coercive debt collection, forcing poor people to forgo the basic necessities of life in order to avoid arrest and jailing. If courts begin to recognize claims under the state bans on debtors prisons, imprisonment for some criminal debts would become subject to both federal and state restrictions. The late Professor William J. Stuntz also noted that regulatory crimes and core crimes like murder have dramatically different histories. Stuntz, supra, at 512. 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. I, 12; Miss. ^ 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. ^ Complaint, Cleveland v. Montgomery, supra note 14, at 2; see Stillman, supra note 11. . . See, e.g., Ex parte Phillips, 771 So. ^ See, e.g., Nicholas M. McLean, Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause, 40 Hastings Const. at 672. Finally, violations of monetary obligations that are statutorily defined as civil. 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. except the homestead exemption.78 Avoiding broad commentary on the general validity of various state recoupment statutes,79 the Court nonetheless expressed concern with the classification drawn by Kansass recoupment statute, which strip[ped] from indigent defendants the array of protective exemptions Kansas ha[d] erected for other civil judgment debtors,80 including state exemptions from attachment and restrictions on wage garnishment.81 While a state could prioritize its claim to money over other creditors (say, by giving its liens priority), [t]his does not mean . 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. See Permanent Injunction, Jenkins v. City of Jennings, No. ^ See Bearden v. Georgia, 461 U.S. 660, 672 (1983). Instead of a test that asks whether the debtor has sought employment or credit per Bearden, in some states there would be a limited inquiry into whether the debtor possessed specific, nonexempt property that the debtor could be ordered to turn over. Some of these laws the state bans on debtors prisons were enacted over a hundred years ago, but can and should be invoked today.166 The task of operationalizing these bans for a new social evil rests in the hands of litigators and courts. So, in 1833, Congress abolished the practice under federal law. ^ For constitutional provisions, see, for example, Ariz. Const. ^ 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. 1968) (en banc). 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. II, 40(3), para. 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. The abolition movement certainly did not intend to exclude such debts from the ban; whether legislatures meant to include them depends upon how sparing ones assumptions about past intent are. at 39899; Williams, 399 U.S. at 242. Interpreting fines for regulatory offenses to fall under the bans of many states is consistent with the bans text, purpose, and original meaning. In this context, exemptions laws are provisions that exempt a certain amount of personal property from attachment and garnishment. 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 . I, 17; Ariz. Const. In the United States, debtors' prisons were banned under federal law in 1833. 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. L. Rev. ^ See, e.g., State v. Hopp, 190 N.W.2d 836, 837 (Iowa 1971); In re Wheeler, 8 P. 276, 27778 (Kan. 1885). I, 20 (That no person shall be imprisoned for debt.); Ga. Const. ^ See, e.g., Lee v. State, 75 Ala. 29, 30 (1883); Mosley v. Mayor of Gallatin, 78 Tenn. 494, 497 (1882). ^ While outside the scope of analysis here, Professor Beth Colgan has argued that incarceration for criminal justice debt might also violate the Excessive Fines Clause of the Eighth Amendment. . See Settlement Agreement, Cleveland v. Montgomery, supra note 18; Agreement to Settle Injunctive and Declaratory Relief Claims, Mitchell v. City of Montgomery, No. ^ 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. (10 Allen) 199 (1865); Commonwealth v. Waite, 93 Mass. The complaint, Kennedy v. City of Biloxi, was filed in the U.S. District Court for the Southern District of Mississippi in Gulfport and cites violations of the U.S. Constitution's Fourth and 14th Amendments. Const. The ACLU Racial Justice Program and allies across the country are bringing lawsuits and advocacy to expose and challenge these practices. 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. ^ 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. Below, seven frequently asked questions about the history and abolition of debtors' imprisonment, and its under-the-radar1 second act. 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. . Posted on . 357 (1889). 22-4513(a) (Supp. 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. During the 20th century, on three separate occasions, the Supreme Court affirmed the unconstitutionality of incarcerating those too poor to repay debt. Despite that, state judges continued to send people to jail for failing to pay court debts. art. art. ^ For a similar analysis, see State v. Anton, 463 A.2d 703, 70607 (Me. In 2016, the ACLU of Northern California, along with a coalition of legal organizations, sued the California Department of Motor Vehicles for illegally suspending the drivers licenses of low-income Californians. Part II covers a range of preexisting federal constitutional limitations on imprisonment for criminal justice debt. I, 22; Iowa Const. These dungeons, such as Walnut Street Debtors Prison in Philadelphia and the New Gaol in downtown Manhattan, were modeled after debtors prisons in London, like the Clink (the origin of the expression in the clink). The report documents local courts that have a pattern of criminalizing poverty and perpetuating racial injustice through the unconstitutional enforcement of low-level offenses. 556.016 (2000), repealed and replaced by Act effective Jan. 1, 2017, 2014 Mo. 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. These include enforcing state and federal law requiring judges to hold indigency hearings, creating sliding scales of fines, imposing meaningful community service instead of jail time, and advising defendants of their right to counsel if they face possible incarceration for unpaid fines. art. Eventually, the movement against imprisonment for debt would produce forty-one state constitutional provisions.95 Some of the provisions read as flat bans;96 others have various carve-outs and exceptions in the text.97 But subsequent case law narrows the practical differences among them by reading into the flat bans largely the same carve-outs.98 The nine states that havent constitutionalized a ban on imprisonment for debt Connecticut, Delaware, Louisiana, Maine, Massachusetts, New Hampshire, New York, Virginia, and West Virginia all have taken statutory action.99 Some statutes look on the surface a lot like the constitutional bans.100 Practically, some explicitly abolished the old writ of capias ad satisfaciendum (holding the body of the debtor in satisfaction of the debt),101 and others reinvigorated procedural protections for debtors who genuinely couldnt pay.102, Of course, these bans dont straightforwardly apply to criminal justice debt. 938.29(4) (2015) (specifying that such debtors shall not be denied any of the protections afforded any other civil judgment debtor). I, 11; S.C. Const. International Covenant of Civil and Political Rights. at 6061. Eventually, federal debtors' prisons were abolished in 1833, leaving the power to implement debtors' prisons in the hands of the states, many of which followed Washington's lead. 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. A conference called by advocates for the abolition of debtors' prisons voted unanimously for resolutions2 including the understanding that . See sources cited supra note 95. I, 19; S.D. ^ See Settlement Agreement, Cleveland v. Montgomery, supra note 18, at 1. In the United States, debtors' prisons were banned under federal law in 1833. More problematically, these monetary obligations, unlike most taxes, are not indexed to wealth, income, or any other proxy for ability to pay. 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. November 6, 2017 By: Bobby Casey, Managing Director GWP Do an internet search on debtors' prisons, and the top searches will ^ See, e.g., Telephone Interview with Nathan Woodliff-Stanley, Exec. ^ Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2761 (2010). Congress abolished debtors' prisons in 1833. 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. (citing Commonwealth v. Farren, 91 Mass. Though poverty has increased in Lexington County since 2012with poverty rates for Black and Latino residents at more than double the rate for white residentsthe County continues to rely on revenue from fines and fees in magistrate court cases. 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. II, 18 (There shall be no imprisonment for debt, except in cases of fraud.). 691, 691 (Iowa 1894). L. Rev. (4 Harr.) ^ See Mass. 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.
