^ Despite its strong language, the Massachusetts statute functioned this way: the indigent debtor was required to appear in court before receiving a discharge. ^ 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). 522, 525 (Fla. 1926); Plapinger v. State, 120 S.E.2d 609, 611 (Ga. 1961); Boyer v. Kinnick, 57 N.W. 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. References: George Philip Bauer, "The Movement against Imprisonment for Debt in the United States" (Ph.D. ^ Bearden v. Georgia, 461 U.S. 660, 66869 (1983). ^ See, e.g., Telephone Interview with Nathan Woodliff-Stanley, Exec. Stat. Part I describes the contemporary problem with criminal justice debt in greater detail. Experts say that the trend, though ongoing, coincided with the rise of mass incarceration.. 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. Cf. While the contemporary discussion on criminal justice debt often makes cursory reference to this historic abolition of debtors prisons,25 the legal literature contains no sustained analysis of whether the state bans on debtors prisons might invalidate some of whats going on today. ^ This carve-out can be found in the state bans of Michigan, New Jersey, South Dakota, and Wisconsin. 958, 958 (Ga. 1904))); and Appleton, 71 Mass. When (and why) did the courts revert to jailing debtors? ^ For a similar analysis, see State v. Anton, 463 A.2d 703, 70607 (Me. This provision is a marked improvement in light of the trend of legislative enactments, starting in 2005, that made many fines for criminal offenses non-waivable, even when an individual could prove inability to pay. . In 2016, the ACLU of Texas sued the City of Sante Fe for unconstitutionally jailing people for low-level offenses simply because they are poor. In this process, indigent people who cannot afford to pay court fines and fees are routinely incarcerated in violation of their constitutional rights. Ct. 1834); Werdenbaugh v. Reid, 20 W. Va. 588, 593, 598 (1882) (discussing Virginia and West Virginia). ^ Georgias law provides guidance for courts in indigency determinations. at 48 n.9 (majority opinion). Read More. at 46 (quoting Or. The prevailing sentiment reflected a view that the inability . 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. Also in this category are costs of imprisonment (billed to inmates in 41 states), and of parole and probation (44 states). I, 20; Alaska Const. amend. 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. 479.353(2) (West, Westlaw through 2015 Veto Sess.)) . Is this debt private or public? 899, 902 (Iowa 1932). ^ Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2761 (2010). (4 Harr.) The late Professor William J. Stuntz also noted that regulatory crimes and core crimes like murder have dramatically different histories. Stuntz, supra, at 512. See Order Dated December 23, 2014, re: Rule 37.65 Fines, Installment or Delayed Payments Response to Nonpayment (Mo. 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). State and local courts have increasingly attempted to supplement their funding by charging fees to people convicted of crimes, including fees for public defenders, prosecutors, court administration, jail operation, and probation supervision. But the court will not issue a civil contempt order to coerce the debtor into paying. Debt collection practices like these have had a devastating impact on people of color in the Atlanta metropolitan area. Read More. .); Developments in the Law Policing, 128 Harv. At this time, the US federal government abolished debtors' prisons, where people had previously been incarcerated . That decision came in a 1983 case called Bearden v. 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). 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. 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. The percentage of people living in poverty in Biloxi has doubled since 2009. 1509, 152627. Others assert that certain prison conditions arguably violate the Cruel and Unusual Punishments Clause or the Thirteenth Amendments prohibition on involuntary servitude. ^ See Fla. Stat. Rev. At the same time, however, legal commentators have been concerned about imprisonment for criminal debt since at least the 1960s. ^ See Complaint, Fant v. Ferguson, supra note 48, at 3. The lawsuit challenges the countys practice of generating revenue by forcing manual labor on, threatening jail, and jailing indigent people who are unable to afford to pay fines, fees, costs, and restitution imposed by the county on criminal defendants. See Recent Legislation, 128 Harv. Many kinds of monetary obligations, then, have been held to fall outside the scope of the state bans. (citing Commonwealth v. Nichols, 92 Mass. See sources cited supra note 95; see also, e.g., Mich. Const. 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. Murder is the crime, and help is the . ^ See Class Action Complaint, Fant v. City of Ferguson, No. ^ See, e.g., William J. Stuntz, The Collapse of American Criminal Justice 2, 67 (2011); Karakatsanis, supra note 3, at 254; Natapoff, supra note 1, at 1065. 3, 2013), http://www.acluohio.org/wp-content/uploads/2013/04/2013_0404LetterToOhioSupremeCourtChiefJustice.pdf [http://perma.cc/R3T5-WPEL]. at 65 (Washington). Ala. Nov. 17, 2014) [hereinafter Settlement Agreement, Mitchell v. Montgomery], http://equaljusticeunderlaw.org/wp/wp-content/uploads/2014/07/Final-Settlement-Agreement.pdf [http://perma.cc/R8S9-HW4N]. After the War of 1812, a costly stalemate, more and more Americans were holding debt, and the notion of imprisoning all these debtors seemed increasingly feudal. Moreover, America was seen as a country of immigrants, and many European immigrants had come here to escape debt. 359, 360 (N.Y. Sup. 2255s Statute of Limitations. I, 18; Utah Const. 1312, 1316 (2015). Const. Dir., ACLU of Colo. (Oct. 23, 2014) (notes on file with Harvard Law School Library); Telephone Interview with Alec Karakatsanis, Co-Founder, Equal Justice Under Law (Apr. .). 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. that a State may impose unduly harsh or discriminatory terms merely because the obligation is to the public treasury rather than to a private creditor.82 The Court suggested that it was applying rational basis scrutiny, although in light of the Courts strong language some judges have read James as subjecting the classification to some form of heightened scrutiny.83, Similarly, the debtor in Fuller v. Oregon owed fees for an attorney and an investigator.84 But in Fuller, the Court upheld Oregons recoupment statute because the defendant wouldnt be forced to pay unless he was able.85 The majority found that the recoupment statute provided all of the same protections as those provided to other judgment debtors, and was therefore wholly free of the kind of discrimination that was held in James v. Strange to violate the Equal Protection Clause.86 Justice Marshall, joined by Justice Brennan in dissent, cited the Oregon constitutional ban on imprisonment for debt and pointed out that indigent defendants could be imprisoned for failing to pay their court-appointed lawyers, while well-heeled defendants who had stiffed their hired counsel could not.87 The majority opinion pointed out that this issue hadnt been preserved for appeal,88 and opined in dicta that the state ban on imprisonment for debt was an issue for state courts to decide.89 Justice Douglas, concurring in the judgment, agreed, but noted the apparent inconsistency between [the relevant state constitutional provision] and the recoupment statute.90. See generally Lee Anne Fennell & Richard H. McAdams, The Distributive Deficit in Law and Economics, Minn. L. Rev. 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. Early prison systems in the United States focused on the power of hard labor, religion, and inhumane conditions to correct persons convicted of petty and serious crimes, as seen in early women's prisons and penitentiaries. In 2017, the ACLU of Tennessee challenged debtors prisons by taking on a Tennessee law that requires a person who has been charged with a crime or who has served prison time to pay off all court fees and fines within one year or else have their drivers license revoked. I, 18 (No person shall ever be imprisoned for debt. (emphasis added)). ACLU Statement for U.S. Commission on Civil Rights Hearing on Municipal Policing and Courts: A Search for Justice or a Quest for Revenue. 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. See sources cited supra note 95. . ^ 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. 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. The report exposes a counterproductive system for the collection of criminal justice debt. Posted on . ^ See Settlement Agreement, Mitchell v. Montgomery, supra note 52, at 23. 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. "Murther, murther, murther, murther " shouted Free-born John Lilburne from prison. ^ See Recent Legislation, supra note 23, at 1313, 1315. This report details the findings of an almost year-long investigation into the ways Nebraskas criminal justice system handles fines and fees imposed on low-income Nebraskans. 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. See Werdenbaugh, 20 W. Va. at 593, 598. ^ E.g., In re Nichols, 749 So. Ending Modern-Day Debtors' Prisons Nearly two centuries ago, the United States formally abolished the incarceration of people who failed to pay off debts. 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. at 132. milestone in the process of abolitionin the state of New York and throughout the United States. Rev. v. Fritz, 449 U.S. 166, 179 (1980). 4:15-cv-00252 (E.D. Two signatories of the Declaration of Independence, James Wilson, an associate justice of the Supreme Court, and Robert Morris, a close friend of George Washingtons, spent time in jail after neglecting loans. Read more. 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. at 39899; Williams, 399 U.S. at 242. art. Read More. (11 Allen) 264 (1865)). 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. ^ 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. November 6, 2017 By: Bobby Casey, Managing Director GWP Do an internet search on debtors' prisons, and the top searches will ^ See Class Action Complaint at 13, Bell v. City of Jackson, No. To be fair, provisions limiting the ban to debts arising out of contract (four states)128 or stemming from civil cases (seven states)129 would seem to leave regulatory offenses uncovered. ^ Id. II, 40(3), para. And debtor's prisons added a nice touch -- not only were you forced to pay your debt, but you were also forced to pay your prison fees. . 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. ch. . I, 20 (That no person shall be imprisoned for debt.); Ga. Const. II, 27; Neb. 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. ^ See id. See Judicial Procedures of the Municipal Court of the City of Montgomery for Indigent Defendants and Nonpayment, Cleveland v. City of Montgomery, No. art. 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." . (quoting Lamar v. State, 47 S.E. As a result, many languished in prison and died there for the crime of their indigence. 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. art. See Vogt, supra note 94, at 335 n.9; Note, Body Attachment and Body Execution: Forgotten but Not Gone, 17 Wm. Mo. I, 1, XXIII (There shall be no imprisonment for debt.); Tex. at 57 (Douglas, J., concurring in the judgment). Miss. ^ See DOJ, Ferguson Investigation, supra note 29, at 3, 910. In January 2015, the ACLU filed a federal lawsuit challenging debt collection practices that have resulted in the jailing of people simply because they are poor. The system now issues more than a thousand warrants each year to order the arrest and immediate incarceration of people who owe court fines and fees unless they pay the full amount of their debts before being booked in jail. 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. 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. 753, 767 (1943) (citing as generally accepted the maxim that an act does not make one guilty unless the mind is guilty). Additionally, interpreting the James and Fuller Courts as applying some degree of heightened scrutiny,148 the disparate application of the imprisonment-for-debt bans is an even better indicator of invidious discrimination149 than the disparate applications of the Kansas and Oregon exemption statutes. 22-4513(a) (Supp. I, 28; N.D. Const. Const. Interpreting fines for regulatory offenses to fall under the bans of many states is consistent with the bans text, purpose, and original meaning. The new American debtors prisons seem problematic along multiple dimensions. ^ To be found in the state bans of Arkansas, California, Iowa, Nebraska, New Mexico, Ohio, and Tennessee. ^ Two lawsuits against the City of Montgomery have settled. the united states abolished debtors' prisons in 1929. . art. Debtors' prisons waste taxpayer money and resources by jailing people who may never be able to pay their debts. . See id. $250/year. ^ Fuller v. Oregon, 417 U.S. 40, 42 (1974). at 56; see also William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. One-Time Monthly Annual. The best evidence to date is the Department of Justices 2015 report on the Ferguson Police Department. But for those without friends in high places, debtors imprisonment could turn into a life sentence. ^ See Tate, 401 U.S. at 400; Williams, 399 U.S. at 242 n.19. Stat. 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. App. Rev. Finally, in only the last several years, the birth of a new brand of offender-funded justice has created a market for private probation companies. A. ^ 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. In fact, the recent bench card promulgated by Ohio Supreme Court Chief Justice OConnor begins as follows: Fines are separate from court costs. For case law, see, for example, Towsend v. State, 52 S.E. Alec Karakatsanis, a lawyer who last year brought one of the only lawsuits to successfully challenge a local court system for jailing indigent debtors, says that the first step was the normalization of incarceration. There are two types: private debt, which may lead to involvement in the criminal justice system, and criminal-justice debt, accrued through involvement in the criminal justice system. ^ A more complete history would undoubtedly be helpful, but remains outside the scope of this Note. 2d 1066 (Ala. 2000) (applying Morissettes framework). ^ See, e.g., Lee v. State, 75 Ala. 29, 30 (1883); Mosley v. Mayor of Gallatin, 78 Tenn. 494, 497 (1882). Most importantly for present purposes, the debts at issue historically were contractual, not criminal. Stat. 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. In the United States, debtors prisons were banned under federal law in 1833. Stat. 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. In 2011, Robin Sanders was driving home when she saw the blue and red lights flashing behind her. Rev. ^ 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. I, 14; N.J. Const. L. Rev. ^ See, e.g., City of Fort Madison v. Bergthold, 93 N.W.2d 112, 116 (Iowa 1958); Voelkel v. City of Cincinnati, 147 N.E. at 42, 53. Debtors prisons were outlawed in the United States nearly 200 years ago. L. Rev. 227, 234 (2013). ^ See, e.g., Davis v. State, 185 So. art. 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. This Note takes a first pass at this missing constitutional argument. Read more. Donations from readers like you are essential to sustaining this work. "M'aidez, m'aidez," says the international distress signal. 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. VIII; Beth A. Colgan, Reviving the Excessive Fines Clause, 102 Calif. L. Rev. Code Ann. at 256 (citing Barnes v. State, 19 Conn. 398 (1849)). ^ See, e.g., Harrison v. Harrison, 394 S.W.2d 128, 13031 (Ark. at 60. ^ See, e.g., Alec Karakatsanis, Policing, Mass Imprisonment, and the Failure of American Lawyers, 128 Harv. of Ret. I, 1, XXIII; Haw. 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. 754, 75657 (Ohio 1925). L. Rev. Thus, under James and Fuller, states cannot discriminate invidiously against at least some classes of criminal justice debtors (note that neither case involved fines) merely by virtue of the fact that the debts arise from a criminal proceeding. ^ See Bearden v. Georgia, 461 U.S. 660, 672 (1983). L. Rev. ^ The constitutional imprisonment-for-debt provisions are as follows: Ala. Const. 334, 34546 (2001). I, 15; Okla. Const. 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. 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.). Led by James Herttell, Chairman and advocate for abolition, the committee resolved that "all . 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: