See . ^ See Complaint, Jenkins v. Jennings, supra note 24. art. amend. . In other words, poor people with debt face criminal consequences but without the Constitutional protections afforded to criminal defendants. except the homestead exemption.78 Avoiding broad commentary on the general validity of various state recoupment statutes,79 the Court nonetheless expressed concern with the classification drawn by Kansass recoupment statute, which strip[ped] from indigent defendants the array of protective exemptions Kansas ha[d] erected for other civil judgment debtors,80 including state exemptions from attachment and restrictions on wage garnishment.81 While a state could prioritize its claim to money over other creditors (say, by giving its liens priority), [t]his does not mean . 2014) (Liability on a claim; a specific sum of money due by agreement or otherwise. In Colorado, Linda Robertss offense of shoplifting $21 worth of food resulted in $746 of court costs, fines, fees, and restitution.37 Ms. Roberts, who lived exclusively on SNAP and Social Security disability benefits, sat out her debt by spending fifteen days in jail.38 And in Georgia, Tom Barrett was sentenced to twelve months of probation for stealing a can of beer.39 But six months in, despite selling his blood plasma, Barrett still couldnt pay the costs associated with his sentence including a $12-per-day ankle bracelet, a $50 set-up fee, and a $39-per-month fee to a private probation company and faced imprisonment.40 A 2010 Brennan Center report flagged problematic criminal justice debt practices in fifteen states, including California, Texas, Michigan, Pennsylvania, and New York.41 A 2010 ACLU report claimed that required indigency inquiries the heart of the constitutional protection provided by Bearden were markedly absent in Louisiana, Michigan, Ohio, Georgia, and Washington.42. 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. Yet, recent years have witnessed the rise of modern-day debtors' prisonsthe arrest and jailing of poor people for failure to pay legal debts they can never hope to afford, through criminal justice procedures that violate their most basic rights. 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. 293, 294 (Ga. 1905) ([I]n enacting the statute now under consideration, the [l]egislative purpose was not to punish . Until that time, failure to pay what you owed could and did land you in jail. ^ Two lawsuits against the City of Montgomery have settled. for Justice, Criminal Justice Debt: A Barrier to Reentry 18 (2010), http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf [http://perma.cc/6SVB-KZKQ]; Human Rights Watch, supra note 32, at 23. ^ See Note, Civil Arrest of Fraudulent Debtors: Toward Limiting the Capias Process, 26 Rutgers L. Rev. See Order Dated December 23, 2014, re: Rule 37.65 Fines, Installment or Delayed Payments Response to Nonpayment (Mo. ^ See Recent Legislation, supra note 23, at 1313, 1315. In the United States, debtors' prisons were banned under federal law in 1833. Debtor's prisons were abolished in the United States in 1833. Const. ^ Id. See Settlement Agreement, Cleveland v. Montgomery, supra note 18; Agreement to Settle Injunctive and Declaratory Relief Claims, Mitchell v. City of Montgomery, No. 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. art. Over one hundred years later, another author identified the same carve-outs and concluded theres a de facto debtors prison system in the United States. Most importantly for present purposes, the debts at issue historically were contractual, not criminal. This practice both aggravates known racial and socioeconomic in-equalities in the criminal justice system8 and raises additional concerns. In the United States, debtors prisons were banned under federal law in 1833. 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. 753, 767 (1943) (citing as generally accepted the maxim that an act does not make one guilty unless the mind is guilty). Const. . ^ This includes the state constitutional bans of Alabama, Alaska, Arizona, Florida, Georgia, Hawaii, Idaho, Indiana, Kansas, Kentucky, Minnesota, Mississippi, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas, Utah, Vermont, Washington, and Wyoming. 853, 855 (1973). Next came the fiscal crisis of the 2000s, during which many states were contending with budget deficits and looking for ways to save4. Accessibility, A Christmas Carol and Other Christmas Books, The Collapse of American Criminal Justice, Investigation of the Ferguson Police Department, Criminal Justice Debt: A Barrier to Reentry, In for a Penny: The Rise of Americas New Debtors Prisons, Office of Judicial Servs., Supreme Court of Ohio, Collection of Fines and Court Costs in Adult Trial Courts, http://www.nytimes.com/2015/09/18/us/suit-alleges-scheme-in-criminal-costs-borne-by-new-orleanss-poor.html, http://aclu-wa.org/sites/default/files/attachments/Modern%20Day%20Debtor%27s%20Prison%20Final%20(3).pdf, http://www.newyorker.com/magazine/2014/06/23/get-out-of-jail-inc, http://www.splcenter.org/sites/default/files/downloads/case/amended_complaint-_harriet_cleveland_0.pdf, http://www.splcenter.org/sites/default/files/downloads/case/exhibit_a_to_joint_settlement_agreement_-_judicial_procedures-_140912.pdf, http://equaljusticeunderlaw.org/wp/wp-content/uploads/2015/02/Complaint-Jennings-Debtors-Prisons-FILE-STAMPED.pdf, http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf, https://www.hrw.org/sites/default/files/reports/us0214_ForUpload_0.pdf, http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf, https://assets.documentcloud.org/documents/2455850/15-10-09-class-action-complaint-stamped.pdf, http://www.nytimes.com/2015/10/20/us/for-offenders-who-cant-pay-its-a-pint-of-blood-or-jail-time.html. $350/year. infra notes 5559 and accompanying text (discussing judicially created solutions in certain states). 4:15-cv-00253 (E.D. But the spirit behind them ought to drive other constitutional actors executives, legislators, and citizens to take swift action.167. No matter what, you can always turn to The Marshall Project as a source of trustworthy journalism about the criminal justice system. The law implements the recommendations of Maines Intergovernmental Pretrial Justice Reform Task Force, which was convened in 2015 to make recommendations to lessen the human and financial cost of keeping so many people in jail who dont need to be there. 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. ^ State v. Blazina, 344 P.3d 680, 685 (Wash. 2015). ^ E.g., Bearden v. Georgia, 461 U.S. 660, 66970 (1983). . ^ 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. Read more. L. Rev. In the first category are credit card debt, unpaid medical bills and car payments, and payday loans and other high-interest, short-term cash advances, which indigent borrowers rely on but struggle to repay. 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. Regulating criminal justice debt through both Bearden claims and imprisonment-for-debt claims makes a lot of sense. I, 28; N.D. Const. 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. 2d 1066 (Ala. 2000) (applying Morissettes framework). What are some types of debt that people are sent to jail for not paying? Unbeknownst to her, a collection agency had filed a lawsuit against her, and, having never received the notice instructing her to appear, she had missed her date in court. ^ While constitutional carve-outs for fraud will capture some debtors, it cant plausibly lower the protections of the ban to the level of Bearden: the failure to search for a job or to seek credit is hardly fraudulent. This Note takes a first pass at this missing constitutional argument. at 4546. The problems posed by nineteenth-century debtors prisons in the United States differ in many ways from the challenges posed today by criminal justice debt. The doctrinal carve-outs for crime suggest that the state bans wouldnt apply to criminal justice debt. Led by James Herttell, Chairman and advocate for abolition, the committee resolved that "all . ^ See id. Congress abolished debtors' prisons in 1833. 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. What is the history of debtors prisons in the United States? ^ E.g., In re Nichols, 749 So. Members of the Court Costs and Fees Working Group include: Mitali Nagrecha, Criminal Justice Policy Program at Harvard Law . at 668. Rev. 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. Well never put our work behind a paywall, and well never put a limit on the number of articles you can read. 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. The Twelve Tables, the oldest codification of Roman law we have, permitted its usage in 451 B.C. 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. ^ See Peter J. Coleman, Debtors and Creditors in America 24956 (1974). art. Part I describes the contemporary problem with criminal justice debt in greater detail. . (quoting Lamar v. State, 47 S.E. Read more. art. ^ 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. at 6061. . Through public education and advocacy, the ACLU of Colorado ultimately secured the passage ofHB 1061, which was signed into law in May 2014 and now bans debtors' prisons in Colorado. ^ But cf. 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). 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. L. Rev. that the Oregon courts would strike down the statute as being inconsistent with the constitutional provision if they faced the issue.). v. Fritz, 449 U.S. 166, 179 (1980). A provision of the law permits courts to waive mandatory fines in some circumstances. Indeed, costs function more as fees for service or taxes than as punishments. Starting with the text, twenty-two state bans refer to debt or debtor without drawing further distinctions between different kinds of debts,125 and theres no textual reason why such words should exclude monetary obligations triggered by statutorily regulated conduct and owed to the state.126 Indeed, the presence of such qualifying language in the other bans127 strongly suggests that the words debt and debtor werent inherently limited to commercial life as a matter of the original meaning of the text just as they arent today. for the support of a spouse or dependent children, or for the support of an illegitimate child or children, or for alimony . . ^ See Telephone Interview with Douglas K. Wilson, Colo. State Pub. Now, the imprisonment-for-debt claims wouldnt challenge the propriety of assessing such charges in the first place. art. ^ While outside the scope of analysis here, Professor Beth Colgan has argued that incarceration for criminal justice debt might also violate the Excessive Fines Clause of the Eighth Amendment. .); Developments in the Law Policing, 128 Harv. VIII; id. ^ 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. ^ E.g., S.D. For example, violations of municipal ordinances boil down to the regulatory crimes category in states where municipalities are not empowered to imprison. art. 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. ^ See, e.g., Davis v. State, 185 So. I, 18; Utah Const. 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 Ill. Const. ^ Id. See id. 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. art. art. It happens for two reasons. Imprisonment for indebtedness was commonplace. 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. Stat. 13. Laws 941, 1152 (to be codified at Mo. L. 275 (2014). At this time, the US federal government abolished debtors' prisons, where people had previously been incarcerated . The report documents local courts that have a pattern of criminalizing poverty and perpetuating racial injustice through the unconstitutional enforcement of low-level offenses. . I, 21 (No person shall be imprisoned for debt arising out of or founded on contract, express or implied . ^ Id. 2255s Statute of Limitations. Residents of Ferguson also suffered unconstitutional stops and arrests, see id. amend. art. Regular observers of the City court have never once seen an indigence or ability to pay hearing conducted in the past decade.). L. Rev. II, 21; N.C. Const. Const. The American tradition of debtors imprisonment seems to be alive and well. Read more. 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. at 138. Still, as described below, theres reason to suspect such settlements will not completely solve the problem. 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: Though poverty has increased in Lexington County since 2012with poverty rates for Black and Latino residents at more than double the rate for white residentsthe County continues to rely on revenue from fines and fees in magistrate court cases. 778, 787 n.79 (1969) (listing sources). Similarly, some collections statutes explicitly redefine certain debts as civil for the purposes of collection. 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. In Benton County, Wash., a quarter of those in jail are there because they owe fines and fees. 18; Md. 1965). 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. 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. ^ 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. If debtors imprisonment is unconstitutional, why does it happen? ^ Campbell Robertson, For Offenders Who Cant Pay, Its a Pint of Blood or Jail Time, N.Y. Times (Oct. 19, 2015), http://www.nytimes.com/2015/10/20/us/for-offenders-who-cant-pay-its-a-pint-of-blood-or-jail-time.html. the act of securing the money or property of another with a fraudulent intent . at 132. ^ James v. Strange, 407 U.S. 128, 130 n.3 (1972) (emphasis added) (quoting Kan. Stat. 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. ^ To be found in the state bans of Arkansas, California, Iowa, Nebraska, New Mexico, Ohio, and Tennessee. ch. ^ See Bearden v. Georgia, 461 U.S. 660, 672 (1983). Read More. ^ Bearden v. Georgia, 461 U.S. 660, 66869 (1983). 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. art. 3:15-cv-732 (S.D. See Act of May 5, 2015, 2015 Ga. Laws 422. 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.
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