amend. (called for should hyperlink to. 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]. Debtors' prisons were supposed to have gone out with the 19th century, but there is evidence that they still exist today in the United States. The history of the United States is intertwined with debt and immigrants. 2d 1066 (Ala. 2000) (applying Morissettes framework). III, 38 ([A] valid decree of a court . 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 crusade to abolish debtors' prisons also garnered strong public support from Freeman Hunt and Hezekiah Niles, influential newspaper editors and ardent reformers. Nevertheless, three specific kinds of criminal monetary obligations might actually be covered by the bans: fines for regulatory offenses, costs, and definitionally civil debts. I, 19; Idaho Const. I, 19; Kan. Const. art. I, 17; Ariz. Const. 1055, 109899 (2015). 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. ^ See generally Francis Bowes Sayre, Public Welfare Offenses, 33 Colum. at 42, 53. Cleveland sued the city, alleging that Montgomerys debt collection procedures and her resultant incarceration violated the Alabama and U.S. Constitutions. 1965). L. Rev. Until that time, failure to pay what you owed could and did land you in jail. 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. The Twelve Tables, the oldest codification of Roman law we have, permitted its usage in 451 B.C. Debtors' Prisons The ACLU works in courts, legislatures, and communities to defend and preserve the individual rights and liberties that the Constitution and the laws of the United States guarantee everyone in this country. See Act of July 9, 2015, 2015 Mo. 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. I, 22; Iowa 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. 754, 75657 (Ohio 1925). II, 16; Cal. art. II, 13; Or. 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. See Order Dated December 23, 2014, re: Rule 37.65 Fines, Installment or Delayed Payments Response to Nonpayment (Mo. ^ See, e.g., Karakatsanis, supra note 3, at 26364. of Ret. Const. The doctrinal carve-outs for crime suggest that the state bans wouldnt apply to criminal justice debt. . II, 40(3), para. [A]ny broadside pronouncement on their general validity would be inappropriate. Id. Const. 556.016 (2000), repealed and replaced by Act effective Jan. 1, 2017, 2014 Mo. ^ See, e.g., State v. Hopp, 190 N.W.2d 836, 837 (Iowa 1971); In re Wheeler, 8 P. 276, 27778 (Kan. 1885). ^ Strattman v. Studt, 253 N.E.2d 749, 753 (Ohio 1969). ^ See Charles Warren, Bankruptcy in United States History 52 (1935). Posted on . I, 10; Colo. Const. May Day and Abolition - CounterPunch.org 2:13-cv-00732 (M.D. 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). Ultimately, debtors' prisons are not only unfair and insensible, they are also illegal. In practice, different judges have different criteria for deciphering whether a debtor is indigent. Some judges will determine how much money a debtor has by having him or her complete an interview or a short questionnaire. ^ Id. (Oct. 10, 2012), http://static.aclu-co.org/wp-content/uploads/2013/12/2012-10-10-Bender-Dailey-Wallace.pdf [http://perma.cc/5F9Y-U7RC]; Letter from Rebecca T. Wallace, Staff Atty, ACLU of Colo., and Mark Silverstein, Legal Dir., ACLU of Colo., to Herb Atchison, Mayor of Westminster, Colo. (Dec. 16, 2013), http://static.aclu-co.org/wp-content/uploads/2014/02/2013-12-16-Atchison-ACLU.pdf [http://perma.cc/7ZZS-X3RL]. Debtor's prisons were abolished in the United States in 1833. Is this debt private or public? See sources cited supra note 95. ^ See, e.g., Complaint, Jenkins v. Jennings, supra note 24, at 43 (The City prosecutor and City judge do not conduct indigence or ability-to-pay hearings. 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. International Covenant of Civil and Political Rights. 938.29(4) (2015) (specifying that such debtors shall not be denied any of the protections afforded any other civil judgment debtor). v. Rodriguez, 411 U.S. 1, 10506 (1973) (Marshall, J., dissenting); Johnson v. Bredesen, 624 F.3d 742, 749 (6th Cir. All Rights Reserved. ^ See, e.g., Shepard, supra note 6, at 153132. . Comeback of debtors' prisons: U.S. courts revive Dickensian practice of jailing people for failing to pay legal fees United States abolished debtors' prisons in the 1830s, but more than a third of . In response, since 2009, the ACLU and ACLU affiliates across the country have been exposing and challenging modern-day debtors' prisons, and urging governments and courts to pursue more rational and equitable approaches to criminal justice debt. (Oct. 21, 2014) (notes on file with Harvard Law School Library). Laws 453. 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. I, 21; Minn. Const. Indeed, in People ex rel. art. Rev. at 46, and, of course, the death of Michael Brown at the hands of the police in August 2014, see id. The Court also required that a court consider whether alternate sanctions (such as a restructured payment schedule or community service) could meet the states interest in punishment and deterrence before resorting to incarceration. Debt collection practices like these have had a devastating impact on people of color in the Atlanta metropolitan area. 3:15-cv-732 (S.D. Lanz v. Dowling, 110 So. shall become a judgment in the same manner and to the same extent as any other judgment under the code of civil procedure.157 In Florida, convicted indigents assessed costs for due process services are expressly provided with the same protections as civil-judgment debtors.158 But not all collections statutes are so explicit, of course.159. ^ See Bearden v. Georgia, 461 U.S. 660, 672 (1983). ^ See Complaint, Fant v. Ferguson, supra note 48, at 3. By reading a z leveled books best pizza sauce at whole foods reading a z leveled books best pizza sauce at whole foods 1, 11; Ga. Const. 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. It may leave too much discretion in the hands of the same legal actors responsible for the state of play. at 4546. 161.685(2) (1973) (omission in original)). See U.S. Const. ^ See Recent Legislation, supra note 23, at 1313, 1315. art. Modern-Day Debtors' Prisons: Race and Revenue Generation in Courts She knew she had not fixed her muffler, and believed that was why she was being pulled over. art. II, 18; Ark. ; see also Amended Complaint at 2, Cleveland v. City of Montgomery, No. at 135. Int. at 46 (quoting Or. Laws 941, 1152 (to be codified at Mo. ^ See, e.g., Samel v. Dodd, 142 F. 68, 70 (5th Cir. Most importantly for present purposes, the debts at issue historically were contractual, not criminal. 1983); Kansas City v. Stricklin, 428 S.W.2d 721, 72526 (Mo. In 2014, the ACLU of Washington and Columbia Legal Services issuedModern-Day Debtors' Prisons: The Way Court-Imposed Debts Punish People for Being Poor. ^ See Recent Legislation, supra note 23, at 131619 (criticizing the lack of such a definition in recent Colorado legislation). Yet, citizens like Sanders and Ford are, to this day, routinely jailed after failing to repay debt. See Richard E. James, Putting Fear Back into the Law and Debtors Back into Prison: Reforming the Debtors Prison System, 42 Washburn L.J. Most importantly, the 1983 decision in Bearden v. Georgia compelled local judges to distinguish between debtors who are too poor to pay and those who have the financial ability but willfully refuse to do so. Const. 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. Debtors' prisons waste taxpayer money and resources by jailing people who may never be able to pay their debts. 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. Stat. 277 (2014). Legal Structure of Debtors' Prisons Debtors' prisons can be seen throughout the history of Western civilization in some form or another. art. . the united states abolished debtors' prisons in 1929 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. . (prohibiting confinement for traffic violations except in enumerated situations). Const. ^ To be found in the state bans of Arkansas, California, Iowa, Nebraska, New Mexico, Ohio, and Tennessee. ^ See, e.g., Debt, Blacks Law Dictionary (10th ed. Nearly two centuries ago, the United States formally abolished the incarceration of people who failed to pay off debts. Ct. 1834); Werdenbaugh v. Reid, 20 W. Va. 588, 593, 598 (1882) (discussing Virginia and West Virginia). As much of the furor regarding contemporary debtors prisons revolves around municipalities, this is no minor point. Regulatory offenses are assessed to deter low-level misbehavior, and costs are assessed to replenish the coffers of the criminal justice system, or to fund the government. . 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. ^ See, e.g., State v. Blazina, 344 P.3d 680, 68081, 684 (Wash. 2015); ACLU of Wash. & Co-lumbia Legal Servs., Modern-Day Debtors Prisons 3 (2014), http://aclu-wa.org/sites/default/files/attachments/Modern%20Day%20Debtor%27s%20Prison%20Final%20(3).pdf [http://perma.cc/X66N-G5EA] ([T]he average amount of LFOs imposed in a felony case is $2540. 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. Contact us at fees@acluofnc.org or (919) 391-7290. 2:13-cv-00732 (M.D. Also in this category are costs of imprisonment (billed to inmates in 41 states), and of parole and probation (44 states). Part III introduces the state bans and argues that they should be held to apply to some fines for regulatory offenses, costs, and definitionally civil debts both as a matter of sound interpretation of state law and as a matter of federal equal protection doctrine. at 58 (Douglas, J., concurring in the judgment); see also id. See State v. Thierfelder, 495 N.W.2d 669, 673 (Wis. 1993); see also Wis. Stat. 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. ^ For example, one author, writing in 1889, pointed out a number of ways in which the state bans were limited. Also, criminal-justice debt affects private creditworthiness and eligibility for a drivers license, making it harder to get a job, get a home, get a loan, or otherwise find a way to avoid jail, repay the debt and regain solid economic footing. 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. . This concern is amplified by the growing trend toward outsourcing portions of the criminal justice system, such as collection, to private actors like Sentinel Offender Services, a probation company that wields the threat of imprisonment via contract with the state. ^ See Complaint, Fant v. Ferguson, supra note 48; Complaint, Jenkins v. Jennings, supra note 24. In the process, we were lowering our standards for what constituted an offense deserving of imprisonment, and, more broadly, we were losing our sense of how serious, how truly serious, it is to incarcerate. Const. She thought she might get a ticket. See sources cited supra note 95; see also, e.g., Mich. Const. Regulating criminal justice debt through both Bearden claims and imprisonment-for-debt claims makes a lot of sense. art. milestone in the process of abolitionin the state of New York and throughout the United States. ^ See Complaint, Jenkins v. Jennings, supra note 24. Despite that, state judges continued to send people to jail for failing to pay court debts. art. 505, 51314 (2001) (describing the massive growth in statutory offenses in several states from the second half of the nineteenth century until the early twenty-first century); cf. and is the first known codification of debt I, 18 (No person shall ever be imprisoned for debt. (emphasis added)). Read more. Led by James Herttell, Chairman and advocate for abolition, the committee resolved that "all . ^ Recent Legislation, supra note 23, at 1314. More problematically, these monetary obligations, unlike most taxes, are not indexed to wealth, income, or any other proxy for ability to pay. Yet during this period, the city, through the Biloxi Municipal Court, has aggressively pursued court fines and fee payments from indigent people by issuing warrants when payments are missed. 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). Imprisonment for nonpayment of contractual debt was a normal feature of American commercial life from the colonial era into the beginning of the nineteenth century.93 But with the rise of credit testing and the replacement of personal lending networks with secured credit, imprisonment for nonpayment came to be seen as a harsh and unwieldy sanction,94 and a growing movement pressed for its abolition. . art. 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. When the offenders cant pay for all of this, they may be jailed even if they have already served their time for the offense. An Appendix to this Note, available on the Harvard Law Review Forum, provides the critical language of each of the forty-one state constitutional bans. 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. The case was brought on behalf of Kevin Thompson, a black teenager in DeKalb County, Georgia. . ^ 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]. In 2014, the ACLU of Coloradosent lettersto three cities, demanding a stop to the issuance of "pay-or-serve" warrants. Its interesting to note that the Illinois state constitution specifically includes criminal fines. See id. At an initial pass, states with cases affirming this rule include the following: Utah, see In re Clifts Estate, 159 P.2d 872, 876 (Utah 1945), Missouri, see State ex rel. Given that we are looking at a substantial sales tax shortfall, its not an insignificant issue.44, In 2013, the municipal court issued over 9000 warrants for failure to pay fines and fees resulting in large part from minor violations such as parking infractions, traffic tickets, or housing code violations.45 The city also tacked on fines and fees for missed appearances and missed payments and used arrest warrants as a collection device.46, The problem has become especially severe or has at least drawn increased attention within the past several years.47 In 2015, nonprofits Equal Justice Under Law and ArchCity Defenders sued the cities of Ferguson48 and Jennings,49 Missouri, alleging that they were running the equivalents of modern debtors prisons.50 The Ferguson complaint described a Kafkaesque journey through the debtors prison network of Saint Louis County a lawless and labyrinthine scheme of dungeon-like municipal facilities and perpetual debt.51 Equal Justice Under Law and the Southern Poverty Law Center have also sued a handful of other municipalities,52 and the ACLU has pursued an awareness campaign in a number of states, sending letters to judges and mayors in Ohio53 and Colorado.54. ^ 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. Rev. Still, as described below, theres reason to suspect such settlements will not completely solve the problem. Code Ann. 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. The courts had ordered their incarceration for non-payment of criminal justice debt without affording hearings to determine their abilitytopay or providing the option of paying through payment plans or community service. The prevailing sentiment reflected a view that the inability . 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. 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. 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 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. diss., Harvard University, 1935). VIII; id. We accept credit card, Apple Pay, and Google Pay. Facing this pressure from advocates and litigants, cities, courts, and legislatures have made some changes. So what do we really know about modern-day debtors imprisonment how it returned, when, and where? . (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]. But the spirit behind them ought to drive other constitutional actors executives, legislators, and citizens to take swift action.167. 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. . This kind of open-ended standard, taken on its own terms, may generate a number of problems. art. L. 275 (2014). If debtors imprisonment is unconstitutional, why does it happen? Debtors Act 1869 - Wikipedia VI, 15; Tenn. Const. We are working in state legislatures and courts, and with judicial officials to end these practices once and for all. & Mary L. Rev. 2:14-cv-00186 (M.D. In these cases, the creditor a predatory lender, a landlord, or a utility provider or a debt collector (hired by the creditor) may bypass bankruptcy court and take the debtor straight to civil court. 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. Below, seven frequently asked questions about the history and abolition of debtors' imprisonment, and its under-the-radar1 second act. Ending Modern-Day Debtors' Prisons Nearly two centuries ago, the United States formally abolished the incarceration of people who failed to pay off debts. 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. The best evidence to date is the Department of Justices 2015 report on the Ferguson Police Department. The second is to develop an economic theory of debtors' prisons, focusing on . 939.12 (2014) (defining crime). 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. . Justice Douglas agreed the issue wasnt properly in front of the Court. J. Pub. PDF Department of Economics Working Paper Series So far, the vast majority of academic commentators, litigators, legislatures, and other legal actors have focused on the federal protections extended under Bearden and its predecessors.165 Bearden represents a powerful tool for change, yet state law bans on debtors prisons could provide even greater protections for certain criminal justice debtors where the states interest in collecting isnt penal. Nearly two centuries ago, the United States formally abolished the incarceration of people who failed to pay off debts. The federal protections under the Bearden and James lines of cases are important tools for ensuring our criminal justice system doesnt imprison for poverty. I, 1, XXIII; Haw. ^ See, e.g., Lee v. State, 75 Ala. 29, 30 (1883); Mosley v. Mayor of Gallatin, 78 Tenn. 494, 497 (1882). . The report documents the realities of today's debtors' prisons, and provides state and local governments and courts with recommendations for pursuing sensible and fair approaches to collecting criminal justice debt.
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