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. ^ James v. Strange, 407 U.S. 128, 140 (1972) (quoting Rinaldi v. Yeager, 384 U.S. 305, 309 (1966)). ^ 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. art. 3, 2013), http://www.acluohio.org/wp-content/uploads/2013/04/2013_0404LetterToOhioSupremeCourtChiefJustice.pdf [http://perma.cc/R3T5-WPEL]. L. Rev. art. ^ See, e.g., Telephone Interview with Douglas K. Wilson, supra note 7. Now, the imprisonment-for-debt claims wouldnt challenge the propriety of assessing such charges in the first place. First, assessing and collecting such debt may not be justifiable on penal grounds. ^ 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. For example, violations of municipal ordinances boil down to the regulatory crimes category in states where municipalities are not empowered to imprison. In this context, exemptions laws are provisions that exempt a certain amount of personal property from attachment and garnishment. International Covenant of Civil and Political Rights. See id. But out of the mix of disturbing narratives and reports one can distill several common elements. Bill of Rights, 16; Ky. Const. art. at 46, and, of course, the death of Michael Brown at the hands of the police in August 2014, see id. The new American debtors prisons seem problematic along multiple dimensions. See Recent Legislation, 128 Harv. See J.C. Thomson, Imprisonment for Debt in the United States, 1 Jurid. Stat. See sources cited supra note 95; see also, e.g., Mich. Const. 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. See Act of July 9, 2015, 2015 Mo. Read More. ^ Fuller v. Oregon, 417 U.S. 40, 42 (1974). In 2014, the ACLU of Coloradosent lettersto three cities, demanding a stop to the issuance of "pay-or-serve" warrants. 277 (2014). Debtors' Prisons, Then and Now: FAQ | The Marshall Project Yet, citizens like Sanders and Ford are, to this day, routinely jailed after failing to repay debt. ^ See id. . Const. I, 20; Alaska Const. . See Ill. Const. ^ 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. Legal Structure of Debtors' Prisons Debtors' prisons can be seen throughout the history of Western civilization in some form or another. .). 938.29(4) (2015) (specifying that such debtors shall not be denied any of the protections afforded any other civil judgment debtor). (11 Allen) 264 (1865)). A. 3:15-cv-732 (S.D. (9 Allen) 489 (1864)). 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. . As the Ohio Supreme Court put it: In todays society, no one, in good conscience, can contend that a nine-dollar fine for crashing a stop sign is deserving of three days in jail if one is unable to pay.140. How to define the category? Laws at 457 (codified at Mo. 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. ^ See generally Francis Bowes Sayre, Public Welfare Offenses, 33 Colum. ^ See, e.g., Karakatsanis, supra note 3, at 26364. I, 15; Ohio Const. ^ See id. 1906); Boarman v. Boarman, 556 S.E.2d 800, 80406 (W. Va. 2001); State v. Burrows, 5 P. 449, 449 (Kan. 1885); see also Thomson, supra note 103, at 364 ([T]he imprisonment is for the contempt and not for the debt. (quoting State v. Becht, 23 Minn. 411, 413 (1877))). 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 . In 2016, the ACLU of Maine helped to secure the passage of LD 1639, which includes a critical provision to help curb debtors prisons. at 65 (Washington). ^ Id. See Richard E. James, Putting Fear Back into the Law and Debtors Back into Prison: Reforming the Debtors Prison System, 42 Washburn L.J. Knowing that youre behind us means so much. Although at common law, scienter requirements were generally necessary to a criminal charge (hence the regular practice of courts reading them into statutes),121 the development of criminal law for regulatory purposes during industrialization made it increasingly desirable to impose strict liability in a number of situations. Mo. 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. 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. http://www.aclu.org/files/assets/InForAPenny_web.pdf, http://www.npr.org/blogs/codeswitch/2015/02/08/384332798/civil-rights-attorneys-sue-ferguson-over-debtors-prisons, http://www.economist.com/news/united-states/21589903-if-you-are-poor-dont-get-caught-speeding-new-debtors-prisons, http://equaljusticeunderlaw.org/wp/wp-content/uploads/2015/02/Complaint-Ferguson-Debtors-Prison-FILE-STAMPED.pdf, http://equaljusticeunderlaw.org/wp/wp-content/uploads/2014/07/Final-Settlement-Agreement.pdf, http://equaljusticeunderlaw.org/wp/current-cases/ending-debtors-prisons/, http://www.acluohio.org/wp-content/uploads/2013/04/2013_0404LetterToOhioSupremeCourtChiefJustice.pdf, http://static.aclu-co.org/wp-content/uploads/2013/12/2012-10-10-Bender-Dailey-Wallace.pdf, http://static.aclu-co.org/wp-content/uploads/2014/02/2013-12-16-Atchison-ACLU.pdf, http://www.supremecourt.ohio.gov/Publications/JCS/finesCourtCosts.pdf, http://jurist.org/paperchase/2014/02/ohio-supreme-court-warns-judges-to-end-debtors-prisons.php, http://www.theatlantic.com/national/archive/2015/08/judges-order-overhauls-fergusons-municipal-courts/402232, http://www.courts.mo.gov/sup/index.nsf/d45a7635d4bfdb8f8625662000632638/fe656f36d6b518a886257db80081d43c. ^ The Missouri legislation, for example, seems to constrain municipal collection of criminal justice debt within certain domains. art. VIII; id. No matter what, you can always turn to The Marshall Project as a source of trustworthy journalism about the criminal justice system. But some strict liability crimes, like statutory rape, are more easily analogized to traditional crimes despite the absence of a mens rea. . at 43 (Ohio); id. ^ See id. art. I, 5. More problematically, these monetary obligations, unlike most taxes, are not indexed to wealth, income, or any other proxy for ability to pay. art. This article has 3 letters to the editor. 143, 14954 (2002) (discussing civil contempt); id. 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. 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]. 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. 446, 447 (1846); State v. McCarroll, 70 So. Ultimately, debtors' prisons are not only unfair and insensible, they are also illegal. If debtors imprisonment is unconstitutional, why does it happen? art. XIII; Class Action Complaint at 5758, Jenkins v. City of Jennings, No. (forthcoming 2016), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2544519 [http://perma.cc/9APA-W5VQ]. 1968) (en banc). When did they get rid of debtors prisons? - Heimduo The law implements the recommendations of Maines Intergovernmental Pretrial Justice Reform Task Force, which was convened in 2015 to make recommendations to lessen the human and financial cost of keeping so many people in jail who dont need to be there. Myers v. State, 1 Conn. 502 (1816) (holding that a defendant who rented his carriage on Sunday, a crime punishable by a fine of twenty dollars, couldnt be found guilty without a showing of mens rea). ^ Two lawsuits against the City of Montgomery have settled. art. Kenneth Edson St. Clair, "Debtor Relief in North Carolina during Reconstruction," NCHR 18 (July 1941). I, 18; Tex. . for the support of a spouse or dependent children, or for the support of an illegitimate child or children, or for alimony . The question was, how? James, 407 U.S. at 140 (quoting Rinaldi, 384 U.S. at 309). That decision came in a 1983 case called Bearden v. 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. ^ The constitutional imprisonment-for-debt provisions are as follows: Ala. Const. Const. Other. . 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. 7. All Rights Reserved. See Vogt, supra note 94, at 335 n.9; Note, Body Attachment and Body Execution: Forgotten but Not Gone, 17 Wm. In other states, the court simply could not imprison for failure to pay the debt, although it could pursue other execution remedies available at law. The Act of Congress established penal regulations and restrictions for persons jailed for property debt, tax evasion, and tax resistance. ^ See, e.g., Nicholas M. McLean, Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause, 40 Hastings Const. 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. ^ See, e.g., Telephone Interview with Nathan Woodliff-Stanley, Exec. 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. Until that time, failure to pay what you owed could and did land you in jail. Const. They therefore impose the burden of funding the government on those individuals and communities least equipped to bear the weight. Did the United States abolished debtors prisons in 1929? In 2013, the ACLU of Ohio issuedOutskirts of Hope, a report documenting blatantly illegal debtors' prisons around the state. Over one hundred years later, another author identified the same carve-outs and concluded theres a de facto debtors prison system in the United States. . (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]. ^ See, e.g., State ex rel. ^ See, e.g., Shepard, supra note 6, at 153132. 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 Settlement Agreement, Mitchell v. Montgomery, supra note 52, at 23. amend. ^ In some circumstances, courts can exercise their contempt power to imprison debtors for failure to pay civil debts. debtors' prisons in the United States as they existed in the early years of the Republic. v. Rodriguez, 411 U.S. 1, 10506 (1973) (Marshall, J., dissenting); Johnson v. Bredesen, 624 F.3d 742, 749 (6th Cir. The debt in James had this characteristic, as the underlying statute specified that the total amount . Const. Regulating criminal justice debt through both Bearden claims and imprisonment-for-debt claims makes a lot of sense. Imprisonment for indebtedness was commonplace. Read more. 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]. ^ See, e.g., Debt, Blacks Law Dictionary (10th ed. ^ See, e.g., Ala. Const. at 13233 (The statutes vary widely in their terms. Id. art. 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. Read More. She was on probation because of a traffic violation. amend. First, some of the responses leave unresolved the substantive definition of indigence for the purposes of ability-to-pay hearings.63 Without such a definition, discretion is left to the same courts that have been imprisoning criminal debtors thus far.64 Second, even tightly written laws,65 settlements, and resolutions need to be enforced, which requires accountability and monitoring.66 Abolishing the new debtors prisons is as much a test of moral and societal conviction as it is of sound drafting. VIII; Beth A. Colgan, Reviving the Excessive Fines Clause, 102 Calif. L. Rev. ^ See Recent Legislation, supra note 23, at 1313 n.13. 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 15556 (discussing child support payments); id. 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. Read more. ^ See Class Action Complaint at 13, Bell v. City of Jackson, No. Most recently, it filed a successful petition for habeas corpus for Richard Vaughan, a man sentenced to 18 days in jail for failing to pay a $895 fine that he could not afford. 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. II, 21; N.C. Const. ^ Under Bearden, what counts as bona fide efforts was left unspecified, apart from vague references to searching for employment or sources of credit. 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. for the enforcement of a judgment.); Mo. . ^ A more complete history would undoubtedly be helpful, but remains outside the scope of this Note. I, 14; N.J. Const. 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. art. Laws 941). II, 12 (No person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors in such manner as shall be prescribed by law, or in cases of tort or where there is a strong presumption of fraud.); Md. The Debtors Act 1869 (32 & 33 Vict. 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. art. See id. art. I, 19; Kan. Const. The proper textual and analytical hook for that question is the Excessive Fines Clause.163 They would, however, challenge a states use of collection methods unavailable to civil creditors. Const. Stat. Const. ^ Id. 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. Imprisonment-for-debt claims would impose a heightened requirement on financial obligations that, unlike traditional fines and restitution, really further noncriminal goals despite being imposed from within the criminal system. 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. 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. To the contrary, regulatory offenses became prominent within American criminal law only after the abolition of debtors prisons.131 The Court in Morissette v. United States132 identified the pilot of the [regulatory offenses] movement in such crimes as selling liquor to an habitual drunkard and selling adulterated milk, citing cases from 1849,133 1864,134 and 1865.135 A law review article published in 1933 called the steadily growing stream of offenses punishable without any criminal intent whatsoever a recent movement in criminal law,136 placing the beginnings of the trend in the middle of the nineteenth century.137 By comparison, all but a few states had enacted their bans on debtors prisons by the 1850s.138 So reading the carve-outs as unrelated to regulatory crimes is consistent with both text and original meaning. By reading a z leveled books best pizza sauce at whole foods reading a z leveled books best pizza sauce at whole foods ^ See, e.g., Davis v. State, 185 So. 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. 2d 227, 233 (Ala. Crim. Opinion | The New Debt Prisons - The New York Times Legislation passed in 1841, 1867, and 1898 replacing a system that criminalized bankruptcy with one designed to resolve as much debt as the debtor could afford, while absolving the remainder. L. Rev. A building in Accomack County, Va., which served as a debtors prison from 1824 to 1849. 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. See Settlement Agreement, Cleveland v. Montgomery, supra note 18; Agreement to Settle Injunctive and Declaratory Relief Claims, Mitchell v. City of Montgomery, No. In Benton County, Wash., a quarter of those in jail are there because they owe fines and fees. ch. (10 Allen) 199 (1865); Commonwealth v. Waite, 93 Mass. And many debtors currently caught in the cogs of the criminal justice system would have no such property. 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. art. And it seems ill-equipped to protect impoverished debtors who see no reason to embark upon, much less document, futile searches for credit or employment. ^ See Note, Civil Arrest of Fraudulent Debtors: Toward Limiting the Capias Process, 26 Rutgers L. Rev. art. Indeed, federal constitutional law may compel an answer on this point. ^ This carve-out can be found in the state bans of Michigan, New Jersey, South Dakota, and Wisconsin. Why have two tests? 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 . 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. at 131. 99-37-13 (West 2015) ([A] default . . ^ See, e.g., Colo. Const. 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.). Conceptually, then, imprisonment-for-debt claims would regulate the new debtors prisons along a fundamentally distinct dimension and should join Bearden claims as a way to challenge unconstitutional imprisonment. This ACLU report presents the results of a year-long investigation into modern-day debtors' prisons in Louisiana, Michigan, Ohio, Washington, and Georgia. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2544519, Digital Duplications and the Fourth Amendment, Reconciling State Sovereign Immunity with the Fourteenth Amendment, Suspended Justice: The Case Against 28 U.S.C. 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. The Twelve Tables, the oldest codification of Roman law we have, permitted its usage in 451 B.C. 489, 491 (1977) (State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Courts interpretation of federal law.
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