. I, 15; Okla. Const. Most importantly, explains John Pollock, the coordinator of the National Coalition for a Civil Right to Counsel, indigent defendants have a right to counsel in criminal cases, but not in civil ones. 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. ^ 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]. ^ This carve-out can be found in the state bans of Michigan, New Jersey, South Dakota, and Wisconsin. infra notes 5559 and accompanying text (discussing judicially created solutions in certain states). The Debtors Act 1869 (32 & 33 Vict. I, 21 (No person shall be imprisoned for debt arising out of or founded on contract, express or implied . . Between 1821 and 1849, twelve states followed suit. This imposes direct costs on the government and further destabilizes the lives of poor people struggling to pay their debts and leave the criminal justice system behind. In Williams v. Illinois,67 the defendants failure to pay a fine and costs would have resulted in a term of imprisonment beyond the statutory maximum.68 And in Tate v. Short,69 the defendants failure to pay would have resulted in imprisonment when the statute didnt allow for imprisonment at all.70 The Court struck down imprisonment in each case.71 The third and most discussed case in the trilogy, Bearden v. Georgia, struck down the automatic revocation of parole for nonpayment of criminal justice debt.72 Bearden established a bona fide efforts test that asks how seriously one has tried to secure employment and credit, in addition to measuring assets.73 The Bearden line of cases thus endeavors to shield criminal justice debtors making a good faith effort to pay, while leaving willful nonpayment unprotected.74, The second line of cases limits states ability to treat civil debtors differently based on the procedural origins of their debt. ^ 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 2011, Robin Sanders was driving home when she saw the blue and red lights flashing behind her. I, 1, XXIII; Haw. Copyright 1887-2023 Harvard Law Review. In the 1970s and 1980s, he says, we started to imprison more people for lesser crimes. ^ See, e.g., Sarah Dolisca Bellacicco, Note, Safe Haven No Longer: The Role of Georgia Courts and Private Probation Companies in Sustaining a De Facto Debtors Prison System, 48 Ga. L. Rev. See Act of July 9, 2015, 2015 Mo. ^ 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. The ACLU and ACLU affiliates across the country have been exposing and challenging modern-day debtors' prisons across the country. 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. When dealing with costs, the states may adopt the reasoning of Strattman in their interpretations of state law, or the Fourteenth Amendment, under James and Fuller, may itself demand that reasoning. See Recent Legislation, 128 Harv. The city of Montgomery settled in 2014, agreeing to conduct the constitutionally required hearings, produce audio recordings,55 provide public defenders, and adopt a presumption of indigence for defendants at or below 125% of the federal poverty level.56 In Ohio, Chief Justice Maureen OConnor took rapid action, issuing guidance materials to clarify the procedures trial and municipal judges should take before imprisoning debtors for failure to pay.57 The Supreme Court of Washington confirmed in March 2015 that the sentencing judge must make an individualized inquiry into the defendants current and future ability to pay before the court imposes [criminal justice debt].58 And in August 2015, Ferguson Municipal Judge Donald McCullin withdrew almost 10,000 arrest warrants issued before 2015.59 As for legislatures, in 2014, the Colorado General Assembly almost unanimously passed a bill requiring courts to make ability-to-pay determinations on the record before imprisoning debtors for nonpayment of debt.60 And in 2015, both the Georgia61 and Missouri62 legislatures passed laws addressing the issue. ^ See Office of Judicial Servs., Supreme Court of Ohio, Collection of Fines and Court Costs in Adult Trial Courts (2015), http://www.supremecourt.ohio.gov/Publications/JCS/finesCourtCosts.pdf [http://perma.cc/43AE-V32F]; see also Taylor Gillan, Ohio Supreme Court Warns Judges to End Debtors Prisons, Jurist (Feb. 7, 2014, 7:14 AM), http://jurist.org/paperchase/2014/02/ohio-supreme-court-warns-judges-to-end-debtors-prisons.php [http://perma.cc/EA4L-BKHJ]. Another type of legal claim should be considered alongside Bearden: one based on the many state constitutional bans on debtors prisons.24 These state bans were enacted over several decades in the first half of the nineteenth century, as a backlash against imprisonment for commercial debt swept the nation. Debtor prisons weren't formally abolished until the mid-19th Century. I, 19; S.D. at 4546. As a result of the greater reliance on incarceration, says Karin Martin, a professor at John Jay College and an expert on criminal justice financial obligations, there was a dramatic increase in the number of statutes listing a prison term as a possible sentence for failure to repay criminal-justice debt3. $250/year. ^ See, e.g., Ala. Const. Interpreting fines for regulatory offenses to fall under the bans of many states is consistent with the bans text, purpose, and original meaning. . (quoting Lamar v. State, 47 S.E. Detail In England, debtors owing money could be easily detained by the courts for indefinite periods, being kept in debtor's prisons. ^ This category would include constitutional provisions with an express carve-out for crime, e.g., Okla. Const. In Strattman v. Studt,142 the defendant was sentenced to the statutory maximum of six months, a fine of $500, and costs.143 After having served his time, and when he couldnt pay his debt, he was imprisoned to sit out his debt at $3 per day.144 The Ohio Supreme Court held that costs are imposed for the purpose of lightening the burden on taxpayers financing the court system, not for a punitive, retributive, or rehabilitative purpose, as are fines.145 Observing that costs arose out of an implied contract with the court, Strattman held that [a] judgment for costs in a criminal case is a civil, not a criminal, obligation, and may be collected only by the methods provided for the collection of civil judgments.146 Future state supreme courts confronting the issue should embrace Strattmans logic and ban cost-related imprisonment. at 6061. L. Rev. ^ Recent Legislation, supra note 23, at 1314. Instead of a test that asks whether the debtor has sought employment or credit per Bearden, in some states there would be a limited inquiry into whether the debtor possessed specific, nonexempt property that the debtor could be ordered to turn over. ^ Id. ^ Id. These courts have ordered the arrest and jailing of people who fall behind on their payments, without affording any hearings to determine an individual's ability to pay or offering alternatives to payment such as community service. Debtors prisons were outlawed in the United States nearly 200 years ago. 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. During this nation's early years, debtors were regularly imprisoned for failure to pay commercial debts. App. But there are many reasons to think theres a long road ahead. In 2016 the ACLU of Arkansas, the Lawyers' Committee for Civil Rights Under Law and the Morrison and Foerster law firm filed a federal proposed class action lawsuit challenging a debtors prison in the City of Sherwood and Pulaski County. . 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). 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. Well never put our work behind a paywall, and well never put a limit on the number of articles you can read. See Thacher v. Williams, 80 Mass. 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. ^ See, e.g., Karakatsanis, supra note 3, at 26364. 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. 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. ACLU Statement for U.S. Commission on Civil Rights Hearing on Municipal Policing and Courts: A Search for Justice or a Quest for Revenue. The crusade to abolish debtors' prisons also garnered strong public support from Freeman Hunt and Hezekiah Niles, influential newspaper editors and ardent reformers. But the spirit behind them ought to drive other constitutional actors executives, legislators, and citizens to take swift action.167. More problematically, these monetary obligations, unlike most taxes, are not indexed to wealth, income, or any other proxy for ability to pay. Residents of Ferguson also suffered unconstitutional stops and arrests, see id. ^ Joseph Shapiro, Measures Aimed at Keeping People Out of Jail Punish the Poor, NPR (May 24, 2014, 4:58 PM), http://www.npr.org/2014/05/24/314866421/measures-aimed-at-keeping-people-out-of-jail-punish-the-poor. See Ill. Const. But some strict liability crimes, like statutory rape, are more easily analogized to traditional crimes despite the absence of a mens rea. 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. In the United States, debtors' prisons were banned under federal law in 1833. See, e.g., Ex parte Phillips, 771 So. 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. The history of the United States is intertwined with debt and immigrants. 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. Part IV explains why it makes good sense to subject the new debtors prisons to the two-tiered regulation of both Bearden and these state bans, in the form of new imprisonment-for-debt claims. ^ State v. Blazina, 344 P.3d 680, 685 (Wash. 2015). 277 (2014). II, 12 (No person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors in such manner as shall be prescribed by law, or in cases of tort or where there is a strong presumption of fraud.); Md. In 2014, the ACLU of Coloradosent lettersto three cities, demanding a stop to the issuance of "pay-or-serve" warrants. I, 18; Utah Const. Sch. 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). 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. And finally (of course) some states havent taken much action, if any, to address the issue nor has it been raised in the federal courts within the last decade, apart from the litigation previously discussed. ^ Id. . at 39899; Williams, 399 U.S. at 242. See, e.g., State v. Anton, 463 A.2d 703, 705 (Me. Debtors' Prison Relief Act of 1792 was a United States federal statute enacted into law by the first President of the United States George Washington on May 5, 1792. ^ See, e.g., Davis v. State, 185 So. 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. . (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]. . Costs trigger the precedents, discussed above, of James and Fuller.147 Many state bans on imprisonment for debt provide equally (or more) unequivocal protections to the civil debtor than the exemption statutes in James did; a strong logic therefore suggests that the Court could more widely enforce Jamess prohibition on jailing defendants for failing to pay court costs. at 48 n.9 (majority opinion). Courts, however, did make clear that the legislature couldnt criminalize the mere nonpayment of commercial debt as a constitutional workaround. 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. Id. at 15556 (discussing child support payments); id. ^ See, e.g., Colo. Const. 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. Code Ann. Many Californians do not have valid drivers licenses because they cannot afford to pay the exorbitant fines and fees associated with a routine traffic citation. 1976) (en banc); Zeitinger v. Mitchell, 244 S.W.2d 91, 9798 (Mo. ^ See Charles Warren, Bankruptcy in United States History 52 (1935). L. Rev. Part I describes the contemporary problem with criminal justice debt in greater detail. See J.C. Thomson, Imprisonment for Debt in the United States, 1 Jurid. We are working in state legislatures and courts, and with judicial officials to end these practices once and for all. If debtors imprisonment is unconstitutional, why does it happen? So what do we really know about modern-day debtors imprisonment how it returned, when, and where? ^ See Class Action Complaint at 13, Bell v. City of Jackson, No. . Despite arising out of a criminal proceeding, costs are cleanly distinguishable from fines, restitution, and forfeiture in their basic purpose: compensating for or subsidizing the governments marginal expenditures on criminal proceedings. ^ E.g., Bearden v. Georgia, 461 U.S. 660, 66970 (1983). at 135. L.Q. I, 15; Ohio Const. Read More. Const. These include enforcing state and federal law requiring judges to hold indigency hearings, creating sliding scales of fines, imposing meaningful community service instead of jail time, and advising defendants of their right to counsel if they face possible incarceration for unpaid fines. She was on probation because of a traffic violation. Led by James Herttell, Chairman and advocate for abolition, the committee resolved that "all . 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. In Benton County, Wash., a quarter of those in jail are there because they owe fines and fees. This Part outlines those limits, which stem from two main lines of cases in the 1970s and early 1980s, and undergird almost all debt-imprisonment litigation today. for the enforcement of a judgment.); Mo. And the Court has made clear this discretion is central to the core penal goals of deterrence, incapacitation, and retribution.162 Against that baseline, the tradition of Bearden simply mandates that once a sentencing court has imposed a monetary obligation, it may not convert that obligation into imprisonment for failure to pay absent a special finding, a basic threshold that ensures the defendant isnt invidiously punished for being poor. Thats confusing for debtors, too. art. 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. The federal protections under the Bearden and James lines of cases are important tools for ensuring our criminal justice system doesnt imprison for poverty. . 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. The Twelve Tables, the oldest codification of Roman law we have, permitted its usage in 451 B.C. 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]. 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. art. Read More. 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]. ^ See, e.g., City of Fort Madison v. Bergthold, 93 N.W.2d 112, 116 (Iowa 1958); Voelkel v. City of Cincinnati, 147 N.E. ^ 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). 2d 1066 (Ala. 2000) (applying Morissettes framework). "M'aidez, m'aidez," says the international distress signal. art. Below, seven frequently asked questions about the history and abolition of debtors' imprisonment, and its under-the-radar1 second act. 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. And other judges will consider all nonpayment to be willful, unless or until the debtor can prove that he or she has exhausted absolutely all other sources of income by quitting smoking, collecting and returning used soda cans and bottles, and asking family and friends for loans. 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. Thus, under James and Fuller, states cannot discriminate invidiously against at least some classes of criminal justice debtors (note that neither case involved fines) merely by virtue of the fact that the debts arise from a criminal proceeding. In 2012 and 2013, the ACLU of Colorado sent letters to Chief Justice Bender of the Colorado Supreme Court and three Colorado municipalities. Despite that, state judges continued to send people to jail for failing to pay court debts. F. 253, 26263 (2015); McLean, supra note 1, at 88591; Campbell Robertson, Suit Alleges Scheme in Criminal Costs Borne by New Orleanss Poor, N.Y. Times (Sept. 17, 2015), http://www.nytimes.com/2015/09/18/us/suit-alleges-scheme-in-criminal-costs-borne-by-new-orleanss-poor.html. art. art. . ^ For example, in 1855, Massachusetts passed a statute saying: Imprisonment for debt is hereby forever abolished in Massachusetts. Appleton, 71 Mass. ^ See Bannon et al., supra note 34, at 6. art. The statute seems to have provided for a Bearden-like inquiry: [N]o convicted person may be held in contempt for failure to repay if he shows that his default was not attributable to an intentional refusal to obey the order of the court or to a failure on his part to make a good faith effort to make the payment. art. Purporting to save taxpayer dollars, these outfits force the offenders themselves to foot the bill for parole, reentry, drug rehab, electronic monitoring, and other services (some of which are not even assigned by a judge). . 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. Read More. ^ See, e.g., Fla. Stat. the united states abolished debtors' prisons in 1929. Read More. at 668. ^ Id. 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). Perhaps this pushback will resolve the concerns described above. A provision of the law permits courts to waive mandatory fines in some circumstances. art. 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. I, 16; Vt. Const. at 672. at 65 (Washington). After the War of 1812, a costly stalemate, more and more Americans were holding debt, and the notion of imprisoning all these debtors seemed increasingly feudal. Moreover, America was seen as a country of immigrants, and many European immigrants had come here to escape debt. Laying the provisions out in one place seems necessary, as the stringcites available in the legal literature are now outdated. L. Rev. Nevertheless, three specific kinds of criminal monetary obligations might actually be covered by the bans: fines for regulatory offenses, costs, and definitionally civil debts. But how could that be? that the Oregon courts would strike down the statute as being inconsistent with the constitutional provision if they faced the issue.). art. See sources cited supra note 95; see also, e.g., Mich. Const. L. Rev. Const. Similarly, some collections statutes explicitly redefine certain debts as civil for the purposes of collection. ^ See DOJ, Ferguson Investigation, supra note 29, at 3, 910. 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. Const. Read more. The American tradition of debtors imprisonment seems to be alive and well. II, 40(3), para. 1509, 152627. 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 . art. Const. ^ See Telephone Interview with Douglas K. Wilson, Colo. State Pub. .); see also Jerome Hall, Interrelations of Criminal Law and Torts: I, 43 Colum. 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.
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