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.). at 132. 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. 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]. But the carve-outs for crime? Indeed, costs function more as fees for service or taxes than as punishments. I, 19; Pa. Const. 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. Read more. Members of the Court Costs and Fees Working Group include: Mitali Nagrecha, Criminal Justice Policy Program at Harvard Law . ^ Id. 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. 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. In fact, the recent bench card promulgated by Ohio Supreme Court Chief Justice OConnor begins as follows: Fines are separate from court costs. Ultimately, debtors' prisons are not only unfair and insensible, they are also illegal. 277 (2014). art. This kind of open-ended standard, taken on its own terms, may generate a number of problems. 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. ^ Cf., e.g., Kimble v. Marvel Entmt, LLC, 135 S. Ct. 2401, 241011 (2015) (identifying the ero[sion] of statutory and doctrinal underpinnings, id. Ann. 2014) (Liability on a claim; a specific sum of money due by agreement or otherwise. Const. First, assessing and collecting such debt may not be justifiable on penal grounds. In the latest pushback against the national scourge of debtors' prisons, the American Civil Liberties Union filed an October 2015 federal lawsuit challenging the illegal arrest and jailing of poor people in Biloxi, Mississippi, without a hearing or representation by counsel. . Stat. PDF New American Debtors' Prisons - Harvard University Facing this pressure from advocates and litigants, cities, courts, and legislatures have made some changes. 3, 2013), http://www.acluohio.org/wp-content/uploads/2013/04/2013_0404LetterToOhioSupremeCourtChiefJustice.pdf [http://perma.cc/R3T5-WPEL]. 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. See, e.g., Bullen v. State, 518 So. ^ 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). 1976) (en banc); Zeitinger v. Mitchell, 244 S.W.2d 91, 9798 (Mo. 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. F. 153 (2015), https://harvardlawreview.org/2015/11/state-bans-on-debtors-prisons-and-criminal-justice-debt-appendix. See Vogt, supra note 94, at 335 n.9; Note, Body Attachment and Body Execution: Forgotten but Not Gone, 17 Wm. 549, 55758 (1941). 1, 11; Ga. Const. 2:14-cv-00186 (M.D. at 131. ^ Naturally, there may be some overlap between this category and the two mentioned above. Despite that, state judges continued to send people to jail for failing to pay court debts. 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. art. The majority rule, often tersely stated, is that they dont.141 But at least one court has held otherwise. ^ See Settlement Agreement, Cleveland v. Montgomery, supra note 18, at 1. art. For indigent people, a civil proceeding regarding private debt say, an unpaid payday loan may have criminal ramifications; conversely, involvement in a criminal case may create debt, causing a new civil proceeding. at 60. ^ Fuller v. Oregon, 417 U.S. 40, 42 (1974). Nonprofit journalism about criminal justice, A nonprofit news organization covering the U.S. criminal justice system, Intimate portraits of people who have been touched by the criminal justice system. ^ Id. 448, 448 (La. At this time, the US federal government abolished debtors' prisons, where people had previously been incarcerated . ^ 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. The Shackles Return: Why Debtors' Prisons Are - Prison Legal News ^ Id. . Knowing that youre behind us means so much. Read more. When the offenders cant pay for all of this, they may be jailed even if they have already served their time for the offense. art. if the judgment debtor unjustly refuses to apply the identified property towards the satisfaction of a judgment; however, the court struck it down under the ban on imprisonment for debt when contempt was used to require the judgment debtor to set aside and deliver a portion of his/her future income toward the satisfaction of the judgment debt. Id. This 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. at 367. The report calls for a slate of reforms to end debtors prison practices. The City of Sherwoods hot check court is part of a labyrinthine and lucrative system in which defendants charged with bouncing even a single for $15 have ultimately been charged thousands of dollars in court costs, fines, and fees payable to the city and the county. . ^ See, e.g., Alicia Bannon et al., Brennan Ctr. diss., Harvard University, 1935). Rev. On this understanding of the law, debtor protections co-vary quite straightforwardly with the states interest in collecting. monetary penalties imposed as a condition of a sentence, including, say, a traffic ticket; fees, which may include jail book-in fees, bail investigation fees5, public defender application fees, drug testing fees, DNA testing fees, jail per-diems for pretrial detention, court costs, felony surcharges, public defender recoupment fees, and on and on and on; and restitution, made to the victim or victims for personal or property damage. But there are many reasons to think theres a long road ahead. 99-37-13 (West 2015) ([A] default . . 1951) (citing In re Clifts Estate, 159 P.2d at 876), and Oklahoma, see Sommer v. Sommer, 947 P.2d 512, 519 (Okla. 1997); Lepak, 844 P.2d at 855. 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. 556.061(29)) (defining infraction). First, infractions known as regulatory offenses, also known as public welfare offenses. The most relevant example is traffic violations, which have played a major role in Ferguson and elsewhere. Read More. art. . 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. See id. Cleveland sued the city, alleging that Montgomerys debt collection procedures and her resultant incarceration violated the Alabama and U.S. Constitutions. . 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. See U.S. Const. ^ See Fla. Stat. ^ See, e.g., Harrison v. Harrison, 394 S.W.2d 128, 13031 (Ark. . 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. ^ See id. Rev. 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. ^ See id. 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. ^ See Tate, 401 U.S. at 400; Williams, 399 U.S. at 242 n.19. 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. To start, state debtor protections would not merely duplicate the federal ones. . 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. II, 40(3), para. ch. Const. ^ See Recent Legislation, supra note 23, at 131619 (criticizing the lack of such a definition in recent Colorado legislation). ^ See Mass. Imprisonment for indebtedness was commonplace. . [A]ny broadside pronouncement on their general validity would be inappropriate. Id. . Const. The Court also likened the classification to the invidious discrimination of Rinaldi v. Yeager, 384 U.S. 305 (1966). The case was brought on behalf of Kevin Thompson, a black teenager in DeKalb County, Georgia. In the 1970s and 1980s, he says, we started to imprison more people for lesser crimes. The investigation revealed that Ferguson law enforcement including both police and the municipal court was deployed to raise revenue.43 In March 2010, the citys finance director emailed thenPolice Chief Thomas Jackson: [U]nless ticket writing ramps up significantly before the end of the year, it will be hard to significantly raise collections next year. 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]. art. Copyright 1887-2023 Harvard Law Review. art. Despite that, state judges continued to send people to jail for failing to pay court debts. . November 6, 2017 By: Bobby Casey, Managing Director GWP Do an internet search on debtors' prisons, and the top searches will 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). Justice Douglas agreed the issue wasnt properly in front of the Court. Residents of Ferguson also suffered unconstitutional stops and arrests, see id. ; see also Amended Complaint at 2, Cleveland v. City of Montgomery, No. I, 14; Ind. As a result, many languished in prison and died there for the crime of their indigence. Ala. Nov. 12, 2013) [hereinafter Complaint, Cleveland v. Montgomery], http://www.splcenter.org/sites/default/files/downloads/case/amended_complaint-_harriet_cleveland_0.pdf [http://perma.cc/Y4CM-99AK]. 479.353(2) (West, Westlaw through 2015 Veto Sess.)) ^ Georgias law provides guidance for courts in indigency determinations. I, 19; Kan. Const. It shows that poor defendants are being jailed at increasingly alarming rates for failing to pay legal debts, creating a racially-skewed, two-tiered system of justice that violates the basic constitutional rights of poor people. at 2410, as a principal justification for overruling precedent in federal stare decisis doctrine). The second is to develop an economic theory of debtors' prisons, focusing on . 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. at 43 (Ohio); id. Congress abolished debtors' prisons in 1833. (5 Gray) at 533 (noting that a major purpose of the statute was to punish fraudulent debtors). 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. 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. ^ See Sarah Stillman, Get Out of Jail, Inc., New Yorker (June 23, 2014), http://www.newyorker.com/magazine/2014/06/23/get-out-of-jail-inc [http://perma.cc/5SU8-EF72]. Part I describes the contemporary problem with criminal justice debt in greater detail. ^ See id. Some judges will rule that the debtor is not legitimately indigent and is, instead, willfully neglecting the debt because the debtor showed up to the courtroom wearing a flashy jacket or expensive tattoos. Bearden and imprisonment-for-debt claims could operate side-by-side in a manner thats both administrable and functionally appealing. ^ See Class Action Complaint, Fant v. City of Ferguson, No. 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. Contact us at fees@acluofnc.org or (919) 391-7290. 575, 576 (Fla. 1939); Roach v. Oliver, 244 N.W. 1892). Read More. 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 generally Francis Bowes Sayre, Public Welfare Offenses, 33 Colum. 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. Debt collection practices like these have had a devastating impact on people of color in the Atlanta metropolitan area. Debtors' prisons waste taxpayer money and resources by jailing people who may never be able to pay their debts. 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. Yet, as noted, they may be jailed for failing to show up at a civil hearing or for not resolving civil debt. at 57 (Douglas, J., concurring in the judgment). 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. Below, seven frequently asked questions about the history and abolition of debtors' imprisonment, and its under-the-radar1 second act. You can also contribute via. Second, costs. 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. From the late 1600s to the early 1800s2, many cities and states operated actual debtors prisons, brick-and-mortar facilities that were designed explicitly and exclusively for jailing negligent borrowers some of whom owed no more than 60 cents. They lead to coercive debt collection, forcing poor people to forgo the basic necessities of life in order to avoid arrest and jailing. ^ Id. Modern-Day Debtors' Prisons: Race and Revenue Generation in Courts Laws 941, 1152 (to be codified at Mo. How to define the category? art. ^ See, e.g., Colo. Const. See Act of July 9, 2015, 2015 Mo. at 256 (citing Barnes v. State, 19 Conn. 398 (1849)). 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. As the literature has long recognized, the abolition of debtors prisons was tightly constrained in scope.103 The doctrinal limits on the bans coverage cabined them along two dimensions: First, debtors evading payment were sculpted out from the bans. $350/year. Const. Debt, Imprisonment for | Encyclopedia.com Ending Modern-Day Debtors' Prisons | American Civil Liberties Union art. 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. 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). ^ Missouris law clamps down on raising revenue through traffic fines and removes incarceration as a penalty for traffic offenses. 4:15-cv-00252 (E.D. 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. at 46 (quoting Or. Eliminating the Criminal Debt Exception for Debtors' Prisons Its interesting to note that the Illinois state constitution specifically includes criminal fines. ^ 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]. 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. Until that time, failure to pay what you owed could and did land you in jail. v. Rodriguez, 411 U.S. 1, 10506 (1973) (Marshall, J., dissenting); Johnson v. Bredesen, 624 F.3d 742, 749 (6th Cir. art. Posted on . at 15657 (discussing taxes). II, 12; Fla. Const. Read More. ^ This carve-out can be found in the state bans of Michigan, New Jersey, South Dakota, and Wisconsin. ^ See, e.g., Samel v. Dodd, 142 F. 68, 70 (5th Cir. See sources cited supra note 95. (11 Allen) 264 (1865)). 560.031(5) (2000) ([T]he fine may be collected by any means authorized for the enforcement of money judgments.) (to be transferred to Mo. art. I, 17; Wis. Const. As she was booked and processed, she learned that she had been jailed because she owed debt $730 to be precise, related to an unpaid medical bill. 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]. Rev. And when Massachusetts abolished imprisonment for petty debts in 1811, the 2 See Matthew 18:29-31 (New International Version) on imprisonment for debt. art. See id. Also in this category are costs of imprisonment (billed to inmates in 41 states), and of parole and probation (44 states). Now, the imprisonment-for-debt claims wouldnt challenge the propriety of assessing such charges in the first place. The percentage of people living in poverty in Biloxi has doubled since 2009. Bd. The first is that judges may incarcerate debtors who fail to show up at debt-related proceedings. Lanz v. Dowling, 110 So. Indeed, in People ex rel. 293, 294 (Ga. 1905) ([I]n enacting the statute now under consideration, the [l]egislative purpose was not to punish . 775.08(3) (2015); Mo. Why have two tests? 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). Legal Structure of Debtors' Prisons Debtors' prisons can be seen throughout the history of Western civilization in some form or another. See Complaint, Cleveland v. Montgomery, supra note 14, at 23. On the same day that it filed the lawsuit, the ACLU of Texas released a report, No Exit, Texas: Modern-Day Debtors Prisons and the Poverty Trap, which details the results of a six-month-long investigation into the enforcement of Class C Misdemeanor fines and fees in Texass Municipal and Justice of the Peace Courts.
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