Press 2006) ([B]efore [our debt is transferred from Scrooge] we shall be ready with the money; and even though we were not, it would be a bad fortune indeed to find so merciless a creditor in his successor.). ^ Id. Laying the provisions out in one place seems necessary, as the stringcites available in the legal literature are now outdated. . ^ State v. Blazina, 344 P.3d 680, 685 (Wash. 2015). of Ret. I, 11; S.C. Const. 357 (1889). 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. But some strict liability crimes, like statutory rape, are more easily analogized to traditional crimes despite the absence of a mens rea. This Part lays out how the state law protections would differ from the federal protections, and why having multiple levels of protection makes sense. 277 (2014). at 2410, as a principal justification for overruling precedent in federal stare decisis doctrine). In 2016, the ACLU of Maine helped to secure the passage of LD 1639, which includes a critical provision to help curb debtors prisons. 558.006 by Act effective Jan. 1, 2017, 2014 Mo. ^ Stillman, supra note 11. The ACLU Racial Justice Program and allies across the country are bringing lawsuits and advocacy to expose and challenge these practices. . ^ 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. . ^ See id. 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. ^ Naturally, there may be some overlap between this category and the two mentioned above. 4:15-cv-00252 (E.D. ^ See Letter from Christine Link, Exec. Code Ann. But of course, funding the government is not one of the traditional purposes of penal law. at 46, and, of course, the death of Michael Brown at the hands of the police in August 2014, see id. See generally Lee Anne Fennell & Richard H. McAdams, The Distributive Deficit in Law and Economics, Minn. L. Rev. 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. ^ See, e.g., Mich. Const. 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, e.g., Telephone Interview with Douglas K. Wilson, supra note 7. They lead to coercive debt collection, forcing poor people to forgo the basic necessities of life in order to avoid arrest and jailing. 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. . Const. This practice both aggravates known racial and socioeconomic in-equalities in the criminal justice system8 and raises additional concerns. 18; Md. ^ Complaint, Cleveland v. Montgomery, supra note 14, at 2; see Stillman, supra note 11. 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. art. 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. A provision of the law permits courts to waive mandatory fines in some circumstances. Why have two tests? 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. I, 18; Tex. 99-37-13 (West 2015) ([A] default . . art. 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. 691, 691 (Iowa 1894). 55, 6267 (1933) (tracing the development of public welfare offenses in the United States). The report calls for a slate of reforms to end debtors prison practices. Debtor's prisons were abolished in the United States in 1833. Members of the Court Costs and Fees Working Group include: Mitali Nagrecha, Criminal Justice Policy Program at Harvard Law . ^ See Settlement Agreement, Mitchell v. Montgomery, supra note 52, at 23. 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 26065; Becky A. Vogt, State v. Allison: Imprisonment for Debt in South Dakota, 46 S.D. art. Ret. Others assert that certain prison conditions arguably violate the Cruel and Unusual Punishments Clause or the Thirteenth Amendments prohibition on involuntary servitude. In the underlying criminal proceeding, Mr. Vaughn was not represented by counsel even though he was unemployed, looking for work, and could not afford a lawyer. Many state courts could therefore plausibly hold today that fines for regulatory offenses constitute civil debt under their state constitutional bans. Legal Structure of Debtors' Prisons Debtors' prisons can be seen throughout the history of Western civilization in some form or another. ^ Strattman v. Studt, 253 N.E.2d 749, 753 (Ohio 1969). 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. (5 Gray) at 533 (noting that a major purpose of the statute was to punish fraudulent debtors). 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. And the problem is deeply engrained, at least in some places. 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. In the late 80s and early 90s, she says, there was a major uptick in the number of rules, at the state level but also in the counties, indicating jail time for failure to pay various fines and fees.. Bearden and imprisonment-for-debt claims could operate side-by-side in a manner thats both administrable and functionally appealing. But there are many reasons to think theres a long road ahead. Read More. art. Donations from readers like you are essential to sustaining this work. at 172627. Read more. ^ Two lawsuits against the City of Montgomery have settled. Led by James Herttell, Chairman and advocate for abolition, the committee resolved that "all . art. Did the United States abolished debtors prisons in 1929? identified property owned by and in the possession or control of the judgment debtor . . Take Wisconsin, where the municipal inability to create crimes prohibits them from punishing infractions by either fine or imprisonment. Conceptually, then, imprisonment-for-debt claims would regulate the new debtors prisons along a fundamentally distinct dimension and should join Bearden claims as a way to challenge unconstitutional imprisonment. The threat of imprisonment may create a hostage effect, causing debtors to hand over money from disability and welfare checks, or inducing family members and friends who arent legally responsible for the debt to scrape together the money.10, Take the story of Harriet Cleveland as a window into the problem: Cleveland, a forty-nine-year-old mother of three from Montgomery, Alabama, worked at a day care center.11 Starting in 2008, Cleveland received several traffic tickets at a police roadblock in her Montgomery neighborhood for operating her vehicle without the appropriate insurance.12 After her license was suspended due to her nonpayment of the ensuing fines and court costs, she continued to drive to work and her childs school, incurring more debt to Montgomery for driving without a license.13 Over the course of several years, including after she was laid off from her job, Cleveland attempted to chip[] away at her debt while collection fees and other surcharges ballooned it up behind her back.14 On August 20, 2013, Cleveland was arrested at her home while babysitting her two-year-old grandson.15 The next day, a municipal judge ordered her to pay $1554 or spend thirty-one days in jail.16 She had no choice but to sit out her debt at the rate of $50 per day.17 In jail, [s]he slept on the floor, using old blankets to block the sewage from a leaking toilet.18. VIII; Beth A. Colgan, Reviving the Excessive Fines Clause, 102 Calif. L. Rev. I, 16; Wyo. v. Fritz, 449 U.S. 166, 179 (1980). 938.29(4) (2015) (specifying that such debtors shall not be denied any of the protections afforded any other civil judgment debtor). . Eventually, federal debtors' prisons were abolished in 1833, leaving the power to implement debtors' prisons in the hands of the states, many of which followed Washington's lead. ^ Id. It may leave too much discretion in the hands of the same legal actors responsible for the state of play. As of the time of publication, Equal Justice Under Law had litigated (or is litigating) similar issues against Jennings, Missouri; Ferguson, Missouri; New Orleans, Louisiana; Jackson, Mississippi; and Rutherford County, Tennessee. For one, indigent debtors do not know whom to negotiate with the DMV, which mailed the speeding ticket, or the debt collector that now seems to be pursuing the matter. Did the United States abolished debtors prisons in 1929? art. 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. Ultimately, debtors' prisons are not only unfair and insensible, they are also illegal. In this process, indigent people who cannot afford to pay court fines and fees are routinely incarcerated in violation of their constitutional rights. But, as argued below, the state bans on debtors prisons can supplement Bearden and they may well be relevant to the inquiry under James. Cf. A. III, 30; Mo. 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. Under the International Covenant of Civil and Political Rights, the practice is listed as a civil-rights violation. 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. Interpreting fines for regulatory offenses to fall under the bans of many states is consistent with the bans text, purpose, and original meaning. Yet, citizens like Sanders and Ford are, to this day, routinely jailed after failing to repay debt. ^ See, e.g., Nicholas M. McLean, Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause, 40 Hastings Const. Experts say that the trend, though ongoing, coincided with the rise of mass incarceration.. Indeed, in People ex rel. 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]. art. Matthew 18:24-26 . art. Lanz v. Dowling, 110 So. 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. at 55 (Georgia); 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 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. ^ E.g., Bearden v. Georgia, 461 U.S. 660, 66970 (1983). Int. Despite that, state judges continued to send people to jail for failing to pay court debts. Since the 1990s, and increasingly in the wake of the Great Recession, many municipalities, forced to operate under tight budgetary constraints, have turned to the criminal justice system as an untapped revenue stream.1 Raising the specter of the debtors prisons once prevalent in the United States,2 imprisonment for failure to pay debts owed to the state has provoked growing concern in recent years.3 These monetary obligations are not contractual liabilities in the ledger of an Ebenezer Scrooge,4 but sums that the state itself assesses through the criminal justice system. may be collected by any means authorized . See, e.g., Bullen v. State, 518 So. Congress abolished debtors' prisons in 1833. In other words, poor people with debt face criminal consequences but without the Constitutional protections afforded to criminal defendants. 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. Const. See id. Stat. Feb. 8, 2015) [hereinafter Complaint, Fant v. Ferguson], http://equaljusticeunderlaw.org/wp/wp-content/uploads/2015/02/Complaint-Ferguson-Debtors-Prison-FILE-STAMPED.pdf [http://perma.cc/MVJ9-Q9CQ]. ^ See 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. 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. That decision came in a 1983 case called Bearden v. ^ This category would include constitutional provisions with an express carve-out for crime, e.g., Okla. Const. Debtors prisons were outlawed in the United States nearly 200 years ago. If we can imprison for possession of marijuana, why cant we imprison for not paying back a loan?. See Settlement Agreement, Cleveland v. Montgomery, supra note 18; Agreement to Settle Injunctive and Declaratory Relief Claims, Mitchell v. City of Montgomery, No. 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. 3:15-cv-732 (S.D. By leaving this mens rea determination to individual judges, rather than providing bright-line criteria as to how to make the distinction, the justices left open the possibility that a local judge with high standards for indigence could circumvent the spirit of Bearden and send a very, very poor debtor to jail or prison. Most importantly for present purposes, the debts at issue historically were contractual, not criminal. , shall not constitute a debt within the meaning of this section.). 1312, 1316 (2015). ^ See, e.g., Colo. Const. In the 1970s and 1980s, he says, we started to imprison more people for lesser crimes. 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. 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. at 29 (Michigan); id. ^ See Civil Rights Div., U.S. Dept of Justice, Investigation of the Ferguson Police Department 4550 (2015) [hereinafter DOJ, Ferguson Investigation], http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf [http://perma.cc/8CQS-NZ9F]. 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. L. Rev. ^ Id. 2:14-cv-00186 (M.D. 359, 360 (N.Y. Sup. . J. Pub. at 43 (Ohio); id. 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 Missouri legislation, for example, seems to constrain municipal collection of criminal justice debt within certain domains. 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. 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. 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.
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