As much of the furor regarding contemporary debtors prisons revolves around municipalities, this is no minor point. I, 15; Ill. Const. ^ See id. (9 Allen) 489 (1864)). Cf. 14, 2015) (notes on file with Harvard Law School Library). 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. See Complaint, Cleveland v. Montgomery, supra note 14, at 23. 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. And the Court has made clear this discretion is central to the core penal goals of deterrence, incapacitation, and retribution.162 Against that baseline, the tradition of Bearden simply mandates that once a sentencing court has imposed a monetary obligation, it may not convert that obligation into imprisonment for failure to pay absent a special finding, a basic threshold that ensures the defendant isnt invidiously punished for being poor. 277 (2014). The crusade to abolish debtors' prisons also garnered strong public support from Freeman Hunt and Hezekiah Niles, influential newspaper editors and ardent reformers. art. ^ 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. the united states abolished debtors' prisons in 1929. . of Ret. Murder is the crime, and help is the . at 26065; Becky A. Vogt, State v. Allison: Imprisonment for Debt in South Dakota, 46 S.D. 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 id. (4 Harr.) Bd. Stat. Yet, as noted, they may be jailed for failing to show up at a civil hearing or for not resolving civil debt. art. 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. L. Rev. I, 15; Okla. Const. But some strict liability crimes, like statutory rape, are more easily analogized to traditional crimes despite the absence of a mens rea. And the problem is deeply engrained, at least in some places. Const. In other words, poor people with debt face criminal consequences but without the Constitutional protections afforded to criminal defendants. Still, as described below, theres reason to suspect such settlements will not completely solve the problem. 1915); Gooch v. Stephenson, 15 Me. Peter J. Coleman, Debtors and Creditors in America: Insolvency, Imprisonment for Debt, and Bankruptcy, 1607-1900 (1974). Rev. Many kinds of monetary obligations, then, have been held to fall outside the scope of the state bans. 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. the united states abolished debtors' prisons in 1929 ^ E.g., S.D. Laws at 457 (codified at Mo. Through public education and advocacy, the ACLU of Colorado ultimately secured the passage ofHB 1061, which was signed into law in May 2014 and now bans debtors' prisons in Colorado. Ann. It calls for reform through legislative action and court rules. Int. . 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. 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. Mo. ^ See supra notes 7590 and accompanying text. ^ It may also be worth pointing out that James and Fuller dealt most concretely with attorneys fees. In February 2014, the Supreme Court of Ohio released a new "bench card" giving much-needed instructions to Ohio judges to explain how to avoid debtors' prison practices in their courtrooms. Def., Office of the State Pub. ^ See Shepard, supra note 6, at 152930 (describing the rules origin in the common law precept that creditors must exhaust legal remedies before turning to equitable ones). Nearly two centuries ago, the United States formally abolished the incarceration of people who failed to pay off debts. I, 16; Vt. Const. 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. 357 (1889). 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. A provision of the law permits courts to waive mandatory fines in some circumstances. Instead, Sanders, who lives in Illinois, was arrested and taken to jail. 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. Const. art. Read more. 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. PDF Abolition Is Not Just for Slavery: Abolishing Debtors' Prison in (citing Commonwealth v. Farren, 91 Mass. ^ Despite its strong language, the Massachusetts statute functioned this way: the indigent debtor was required to appear in court before receiving a discharge. ^ Indeed, when trying to determine whether or not to read a scienter requirement into a statute, courts are guided by principles like those laid out in Morissette v. United States, 342 U.S. 246 (1952), looking to any required culpable mental state, the purpose of the statute, its connection to common law, whether or not it is regulatory in nature, whether it would be difficult to enforce with a scienter requirement, and whether the sanction is severe. ^ See Recent Legislation, supra note 23, at 1313 n.13. See State v. Thierfelder, 495 N.W.2d 669, 673 (Wis. 1993); see also Wis. Stat. ^ Cf., e.g., Miss. art. . If debtors imprisonment is unconstitutional, why does it happen? . ^ 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. Debtors' prisons impose devastating human costs. In these cases, the crime is not failure to pay, but rather failing to appear in court, disobeying a court order, or contempt of court.. Despite arising out of a criminal proceeding, costs are cleanly distinguishable from fines, restitution, and forfeiture in their basic purpose: compensating for or subsidizing the governments marginal expenditures on criminal proceedings. VI, 15 (No person shall be imprisoned for debt arising out of or founded upon a contract.). ^ See, e.g., Colo. Const. . L.Q. . 448, 448 (La. In Benton County, Wash., a quarter of those in jail are there because they owe fines and fees. art. 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]. See Vogt, supra note 94, at 335 n.9; Note, Body Attachment and Body Execution: Forgotten but Not Gone, 17 Wm. References: George Philip Bauer, "The Movement against Imprisonment for Debt in the United States" (Ph.D. I, 16; Wyo. 3, 2013), http://www.acluohio.org/wp-content/uploads/2013/04/2013_0404LetterToOhioSupremeCourtChiefJustice.pdf [http://perma.cc/R3T5-WPEL]. Court costs and fees are civil, not criminal, obligations and may be collected only by the methods provided for the collection of civil judgments. Office of Judicial Servs., supra note 57 (citing Strattman, 253 N.E.2d at 754). I, 28; N.D. Const. In the first category are credit card debt, unpaid medical bills and car payments, and payday loans and other high-interest, short-term cash advances, which indigent borrowers rely on but struggle to repay. So, in 1833, Congress abolished the practice under federal law. Const. Debra Shoemaker Ford, a citizen of Harpersville, Ala., spent seven weeks in the county jail without ever appearing in court. Similarly, some collections statutes explicitly redefine certain debts as civil for the purposes of collection. 1983). Theres probably no principled reason to distinguish between attorneys fees and other costs, like a judgment fee or a clerk fee, but doctrinally the Court may have felt especially sensitive to discrimination with respect to assigning lawyers, given its recent decision mandating counsel for indigent defendants in Gideon v. Wainwright, 372 U.S. 335 (1963). 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. I, 16; R.I. Const. ^ James v. Strange, 407 U.S. 128, 130 n.3 (1972) (emphasis added) (quoting Kan. Stat. The United States was, after all, the first major nation to get rid of debt prisons in the 1820s and 1830s and embrace "fresh starts" for bankrupts at a time when "debtors were imprisoned. ^ This category would include constitutional provisions with an express carve-out for crime, e.g., Okla. Const. Bill of Rights, 16; Ky. Const. ^ Id. In fact, under the state law protections, criminal justice debtors would face a much friendlier inquiry than they would under Beardens freestanding equal protection jurisprudence.160 This is true under either of the two rules detailed above. 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. Of course, while the disparity between how indigent and well-heeled defendants are treated, see supra note 87 and accompanying text, is arguably not right, it seems reasonable enough to pass rational basis scrutiny, see, e.g., FCC v. Beach Commcns, Inc., 508 U.S. 307, 31415 (1993); U.S. R.R. ^ See, e.g., Shepard, supra note 6, at 153132. art. 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. ^ 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]. See Act of July 9, 2015, 2015 Mo. The majority rule, often tersely stated, is that they dont.141 But at least one court has held otherwise. The ACLU of North Carolina is a member of the Court Costs and Fees Working Group, which is working to end the practice of modern-day debtors' prisons in North Carolina. 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. 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. 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. ^ The constitutional imprisonment-for-debt provisions are as follows: Ala. Const. ^ Id. L. Rev. 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. This tiered regulatory model thus gives each state the ability to pursue multiple legitimate ends including both punishment and subsidizing the criminal justice system so long as it doesnt discriminate in applying its own law. identified property owned by and in the possession or control of the judgment debtor . Rev. at 58 (Douglas, J., concurring in the judgment); see also id. But aside from clear policy concerns, they may violate constitutional laws at both the federal and state levels. In 2014, the ACLU of Coloradosent lettersto three cities, demanding a stop to the issuance of "pay-or-serve" warrants. Stat. , shall not constitute a debt within the meaning of this section.). Bearden and imprisonment-for-debt claims could operate side-by-side in a manner thats both administrable and functionally appealing. art. L. Rev. art. (prohibiting confinement for traffic violations except in enumerated situations). Read more. Dir., ACLU of Ohio, et al., to Chief Justice Maureen OConnor, Ohio Supreme Court (Apr. ^ See Complaint, Fant v. Ferguson, supra note 48, at 3. 18; Md. ^ Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2761 (2010). art. I, 22; Iowa 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. 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. See id. See sources cited supra note 95; see also, e.g., Mich. Const. I, 21 (No person shall be imprisoned for debt arising out of or founded on contract, express or implied . Though de jure debtors prisons are a thing of the past, de facto debtors imprisonment is not. art. III, 38 ([A] valid decree of a court . See, e.g., Bullen v. State, 518 So. 1679, 1679 n.1 (1971). ^ See, e.g., Alicia Bannon et al., Brennan Ctr. Under the International Covenant of Civil and Political Rights, the practice is listed as a civil-rights violation. 446, 447 (1846); State v. McCarroll, 70 So. 13. . Rev. Read more. 938.29(4) (2015) (specifying that such debtors shall not be denied any of the protections afforded any other civil judgment debtor). at 855. art. I, 5. Read More. ^ For a similar analysis, see State v. Anton, 463 A.2d 703, 70607 (Me. Congress abolished debtors' prisons in 1833. 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. 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. 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. 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. See Charles Dickens, A Christmas Carol and Other Christmas Books 7172 (Robert Douglas-Fairhurst ed., Oxford Univ. Legal commentators have long recognized that the federal constitution imposes limits on imprisonment for criminal justice debt under the Equal Protection and Due Process Clauses. at 13233 (The statutes vary widely in their terms. Id. Dec. 23, 2014) (en banc), http://www.courts.mo.gov/sup/index.nsf/d45a7635d4bfdb8f8625662000632638/fe656f36d6b518a886257db80081d43c [http://perma.cc/BTX3-4ERC]. ^ See, e.g., State v. Hopp, 190 N.W.2d 836, 837 (Iowa 1971); In re Wheeler, 8 P. 276, 27778 (Kan. 1885). amend. 4; Wash. Const. Oct. 9, 2015) [hereinafter Complaint, Bell v. Jackson], https://assets.documentcloud.org/documents/2455850/15-10-09-class-action-complaint-stamped.pdf [https://perma.cc/3CKT-XXX4] (describing reduction of debt at a rate of $58 per day of work); Karakatsanis, supra note 3, at 262 ($25 per day). art. $250/year. Cleveland sued the city, alleging that Montgomerys debt collection procedures and her resultant incarceration violated the Alabama and U.S. Constitutions. See Act of May 5, 2015, 2015 Ga. Laws 422. at 43 (Ohio); id. In 2016 the ACLU of Arkansas, the Lawyers' Committee for Civil Rights Under Law and the Morrison and Foerster law firm filed a federal proposed class action lawsuit challenging a debtors prison in the City of Sherwood and Pulaski County. Cass County, Texas Jail Records, Riverside County Housing Authority, Articles T
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the united states abolished debtors' prisons in 1929

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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. See Ill. Const. See Recent Legislation, 128 Harv. art. Const. 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. ^ Stillman, supra note 11. As much of the furor regarding contemporary debtors prisons revolves around municipalities, this is no minor point. I, 15; Ill. Const. ^ See id. (9 Allen) 489 (1864)). Cf. 14, 2015) (notes on file with Harvard Law School Library). 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. See Complaint, Cleveland v. Montgomery, supra note 14, at 23. 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. And the Court has made clear this discretion is central to the core penal goals of deterrence, incapacitation, and retribution.162 Against that baseline, the tradition of Bearden simply mandates that once a sentencing court has imposed a monetary obligation, it may not convert that obligation into imprisonment for failure to pay absent a special finding, a basic threshold that ensures the defendant isnt invidiously punished for being poor. 277 (2014). The crusade to abolish debtors' prisons also garnered strong public support from Freeman Hunt and Hezekiah Niles, influential newspaper editors and ardent reformers. art. ^ 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. the united states abolished debtors' prisons in 1929. . of Ret. Murder is the crime, and help is the . at 26065; Becky A. Vogt, State v. Allison: Imprisonment for Debt in South Dakota, 46 S.D. 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 id. (4 Harr.) Bd. Stat. Yet, as noted, they may be jailed for failing to show up at a civil hearing or for not resolving civil debt. art. 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. L. Rev. I, 15; Okla. Const. But some strict liability crimes, like statutory rape, are more easily analogized to traditional crimes despite the absence of a mens rea. And the problem is deeply engrained, at least in some places. Const. In other words, poor people with debt face criminal consequences but without the Constitutional protections afforded to criminal defendants. Still, as described below, theres reason to suspect such settlements will not completely solve the problem. 1915); Gooch v. Stephenson, 15 Me. Peter J. Coleman, Debtors and Creditors in America: Insolvency, Imprisonment for Debt, and Bankruptcy, 1607-1900 (1974). Rev. Many kinds of monetary obligations, then, have been held to fall outside the scope of the state bans. 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. the united states abolished debtors' prisons in 1929 ^ E.g., S.D. Laws at 457 (codified at Mo. Through public education and advocacy, the ACLU of Colorado ultimately secured the passage ofHB 1061, which was signed into law in May 2014 and now bans debtors' prisons in Colorado. Ann. It calls for reform through legislative action and court rules. Int. . 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. 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. Mo. ^ See supra notes 7590 and accompanying text. ^ It may also be worth pointing out that James and Fuller dealt most concretely with attorneys fees. In February 2014, the Supreme Court of Ohio released a new "bench card" giving much-needed instructions to Ohio judges to explain how to avoid debtors' prison practices in their courtrooms. Def., Office of the State Pub. ^ See Shepard, supra note 6, at 152930 (describing the rules origin in the common law precept that creditors must exhaust legal remedies before turning to equitable ones). Nearly two centuries ago, the United States formally abolished the incarceration of people who failed to pay off debts. I, 16; Vt. Const. 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. 357 (1889). 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. A provision of the law permits courts to waive mandatory fines in some circumstances. Instead, Sanders, who lives in Illinois, was arrested and taken to jail. 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. Const. art. Read more. 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. PDF Abolition Is Not Just for Slavery: Abolishing Debtors' Prison in (citing Commonwealth v. Farren, 91 Mass. ^ Despite its strong language, the Massachusetts statute functioned this way: the indigent debtor was required to appear in court before receiving a discharge. ^ Indeed, when trying to determine whether or not to read a scienter requirement into a statute, courts are guided by principles like those laid out in Morissette v. United States, 342 U.S. 246 (1952), looking to any required culpable mental state, the purpose of the statute, its connection to common law, whether or not it is regulatory in nature, whether it would be difficult to enforce with a scienter requirement, and whether the sanction is severe. ^ See Recent Legislation, supra note 23, at 1313 n.13. See State v. Thierfelder, 495 N.W.2d 669, 673 (Wis. 1993); see also Wis. Stat. ^ Cf., e.g., Miss. art. . If debtors imprisonment is unconstitutional, why does it happen? . ^ 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. Debtors' prisons impose devastating human costs. In these cases, the crime is not failure to pay, but rather failing to appear in court, disobeying a court order, or contempt of court.. Despite arising out of a criminal proceeding, costs are cleanly distinguishable from fines, restitution, and forfeiture in their basic purpose: compensating for or subsidizing the governments marginal expenditures on criminal proceedings. VI, 15 (No person shall be imprisoned for debt arising out of or founded upon a contract.). ^ See, e.g., Colo. Const. . L.Q. . 448, 448 (La. In Benton County, Wash., a quarter of those in jail are there because they owe fines and fees. art. 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]. See Vogt, supra note 94, at 335 n.9; Note, Body Attachment and Body Execution: Forgotten but Not Gone, 17 Wm. References: George Philip Bauer, "The Movement against Imprisonment for Debt in the United States" (Ph.D. I, 16; Wyo. 3, 2013), http://www.acluohio.org/wp-content/uploads/2013/04/2013_0404LetterToOhioSupremeCourtChiefJustice.pdf [http://perma.cc/R3T5-WPEL]. Court costs and fees are civil, not criminal, obligations and may be collected only by the methods provided for the collection of civil judgments. Office of Judicial Servs., supra note 57 (citing Strattman, 253 N.E.2d at 754). I, 28; N.D. Const. In the first category are credit card debt, unpaid medical bills and car payments, and payday loans and other high-interest, short-term cash advances, which indigent borrowers rely on but struggle to repay. So, in 1833, Congress abolished the practice under federal law. Const. Debra Shoemaker Ford, a citizen of Harpersville, Ala., spent seven weeks in the county jail without ever appearing in court. Similarly, some collections statutes explicitly redefine certain debts as civil for the purposes of collection. 1983). Theres probably no principled reason to distinguish between attorneys fees and other costs, like a judgment fee or a clerk fee, but doctrinally the Court may have felt especially sensitive to discrimination with respect to assigning lawyers, given its recent decision mandating counsel for indigent defendants in Gideon v. Wainwright, 372 U.S. 335 (1963). 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. I, 16; R.I. Const. ^ James v. Strange, 407 U.S. 128, 130 n.3 (1972) (emphasis added) (quoting Kan. Stat. The United States was, after all, the first major nation to get rid of debt prisons in the 1820s and 1830s and embrace "fresh starts" for bankrupts at a time when "debtors were imprisoned. ^ This category would include constitutional provisions with an express carve-out for crime, e.g., Okla. Const. Bill of Rights, 16; Ky. Const. ^ Id. In fact, under the state law protections, criminal justice debtors would face a much friendlier inquiry than they would under Beardens freestanding equal protection jurisprudence.160 This is true under either of the two rules detailed above. 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. Of course, while the disparity between how indigent and well-heeled defendants are treated, see supra note 87 and accompanying text, is arguably not right, it seems reasonable enough to pass rational basis scrutiny, see, e.g., FCC v. Beach Commcns, Inc., 508 U.S. 307, 31415 (1993); U.S. R.R. ^ See, e.g., Shepard, supra note 6, at 153132. art. 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. ^ 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]. See Act of July 9, 2015, 2015 Mo. The majority rule, often tersely stated, is that they dont.141 But at least one court has held otherwise. The ACLU of North Carolina is a member of the Court Costs and Fees Working Group, which is working to end the practice of modern-day debtors' prisons in North Carolina. 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. 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. 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. ^ The constitutional imprisonment-for-debt provisions are as follows: Ala. Const. ^ Id. L. Rev. 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. This tiered regulatory model thus gives each state the ability to pursue multiple legitimate ends including both punishment and subsidizing the criminal justice system so long as it doesnt discriminate in applying its own law. identified property owned by and in the possession or control of the judgment debtor . Rev. at 58 (Douglas, J., concurring in the judgment); see also id. But aside from clear policy concerns, they may violate constitutional laws at both the federal and state levels. In 2014, the ACLU of Coloradosent lettersto three cities, demanding a stop to the issuance of "pay-or-serve" warrants. Stat. , shall not constitute a debt within the meaning of this section.). Bearden and imprisonment-for-debt claims could operate side-by-side in a manner thats both administrable and functionally appealing. art. L. Rev. art. (prohibiting confinement for traffic violations except in enumerated situations). Read more. Dir., ACLU of Ohio, et al., to Chief Justice Maureen OConnor, Ohio Supreme Court (Apr. ^ See Complaint, Fant v. Ferguson, supra note 48, at 3. 18; Md. ^ Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2761 (2010). art. I, 22; Iowa 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. 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. See id. See sources cited supra note 95; see also, e.g., Mich. Const. I, 21 (No person shall be imprisoned for debt arising out of or founded on contract, express or implied . Though de jure debtors prisons are a thing of the past, de facto debtors imprisonment is not. art. III, 38 ([A] valid decree of a court . See, e.g., Bullen v. State, 518 So. 1679, 1679 n.1 (1971). ^ See, e.g., Alicia Bannon et al., Brennan Ctr. Under the International Covenant of Civil and Political Rights, the practice is listed as a civil-rights violation. 446, 447 (1846); State v. McCarroll, 70 So. 13. . Rev. Read more. 938.29(4) (2015) (specifying that such debtors shall not be denied any of the protections afforded any other civil judgment debtor). at 855. art. I, 5. Read More. ^ For a similar analysis, see State v. Anton, 463 A.2d 703, 70607 (Me. Congress abolished debtors' prisons in 1833. 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. 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. 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. 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. See Charles Dickens, A Christmas Carol and Other Christmas Books 7172 (Robert Douglas-Fairhurst ed., Oxford Univ. Legal commentators have long recognized that the federal constitution imposes limits on imprisonment for criminal justice debt under the Equal Protection and Due Process Clauses. at 13233 (The statutes vary widely in their terms. Id. Dec. 23, 2014) (en banc), http://www.courts.mo.gov/sup/index.nsf/d45a7635d4bfdb8f8625662000632638/fe656f36d6b518a886257db80081d43c [http://perma.cc/BTX3-4ERC]. ^ See, e.g., State v. Hopp, 190 N.W.2d 836, 837 (Iowa 1971); In re Wheeler, 8 P. 276, 27778 (Kan. 1885). amend. 4; Wash. Const. Oct. 9, 2015) [hereinafter Complaint, Bell v. Jackson], https://assets.documentcloud.org/documents/2455850/15-10-09-class-action-complaint-stamped.pdf [https://perma.cc/3CKT-XXX4] (describing reduction of debt at a rate of $58 per day of work); Karakatsanis, supra note 3, at 262 ($25 per day). art. $250/year. Cleveland sued the city, alleging that Montgomerys debt collection procedures and her resultant incarceration violated the Alabama and U.S. Constitutions. See Act of May 5, 2015, 2015 Ga. Laws 422. at 43 (Ohio); id. In 2016 the ACLU of Arkansas, the Lawyers' Committee for Civil Rights Under Law and the Morrison and Foerster law firm filed a federal proposed class action lawsuit challenging a debtors prison in the City of Sherwood and Pulaski County.

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the united states abolished debtors' prisons in 1929