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. 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. 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. ^ 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. As the Ohio Supreme Court put it: In todays society, no one, in good conscience, can contend that a nine-dollar fine for crashing a stop sign is deserving of three days in jail if one is unable to pay.140. II, 16; Cal. ^ See, e.g., Mich. Const. . First, assessing and collecting such debt may not be justifiable on penal grounds. But the carve-outs for crime? Read more. I, 16; R.I. Const. So what do we really know about modern-day debtors imprisonment how it returned, when, and where? 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. Const. ^ Id. This criminal debt "exception" to debtors' prisons is intimately linked to this country's complicated history regarding debtors and creditors. On this understanding of the law, debtor protections co-vary quite straightforwardly with the states interest in collecting. 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. v. Rodriguez, 411 U.S. 1, 10506 (1973) (Marshall, J., dissenting); Johnson v. Bredesen, 624 F.3d 742, 749 (6th Cir. Credit: Michelle Frankfurter, Jacquelyn Martin / AP Photos, Support our on-going litigation and advocacy work. ^ 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. As much of the furor regarding contemporary debtors prisons revolves around municipalities, this is no minor point. Second, even in states that allow contempt proceedings, most courts require a sharply limited (and debtor-favorable) inquiry. (Oct. 21, 2014) (notes on file with Harvard Law School Library). To be fair, provisions limiting the ban to debts arising out of contract (four states)128 or stemming from civil cases (seven states)129 would seem to leave regulatory offenses uncovered. Const. art. 1312, 1316 (2015). Mo. A century and a half later, in 1983, the Supreme Court affirmed that incarcerating indigent debtors was unconstitutional under the Fourteenth Amendment's Equal Protection clause. 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. (14 Gray) 324, 328 (1859). Donations from readers like you are essential to sustaining this work. Courts, however, did make clear that the legislature couldnt criminalize the mere nonpayment of commercial debt as a constitutional workaround. See id. Other. 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. 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. 4:15-cv-00253 (E.D. 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. Def., Office of the State Pub. Knowing that youre behind us means so much. (5 Gray) at 532. The Court identified some of those limits in a pair of equal protection cases in the 1970s: James v. Strange75 and Fuller v. Oregon.76, The debtor in James v. Strange owed $500 to pay for a court-appointed attorney and challenged the Kansas recoupment statute under which the state had attempted to recover the money.77 The Court struck down the recoupment statute because it failed to provide any of the exemptions provided by [the Kansas Code of Civil Procedure]. art. ^ See, e.g., State ex rel. ^ See, e.g., Joseph Shapiro, Civil Rights Attorneys Sue Ferguson over Debtors Prisons, NPR (Feb. 8, 2015, 9:03 PM), http://www.npr.org/blogs/codeswitch/2015/02/08/384332798/civil-rights-attorneys-sue-ferguson-over-debtors-prisons (Weve seen the rise of modern American debtors prisons, and nowhere is that phenomenon more stark than in Ferguson and Jennings municipal courts and municipal jails. 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. L. Rev. Const. 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. In 2014, the ACLU of Washington and Columbia Legal Services issuedModern-Day Debtors' Prisons: The Way Court-Imposed Debts Punish People for Being Poor. 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. But how could that be? For instance, a number of constitutional provisions contained (or had read in) an exception for fraud.104 The fraud exception has been interpreted to cover cases of concealed assets or fraudulent contracting.105 In some cases, even leaving the state would count as fraud.106 And if a court ordered a party to turn over specific assets, that partys refusal to comply would give rise to the jailable offense of civil contempt of court without offending the constitutional bans.107 Second, courts have held a long list of monetary obligations not to count as debts. Some constitutional provisions limited the ban to debts arising out of contract, as opposed to tort or crime.108 In these places, failure to pay child support or alimony could give rise to arrest and incarceration.109 So too with criminal costs and fines.110 Thus, in most states today one can be imprisoned for failure to pay noncommercial debts, including debts stemming from tort,111 crime,112 taxes and licensing fees,113 child support,114 and alimony.115. at 46, and, of course, the death of Michael Brown at the hands of the police in August 2014, see id. Read More. In Lepak v. McClain, 844 P.2d 852 (Okla. 1992), the Oklahoma Supreme Court sustained the contempt-of-court power when used to require the delivery of . ^ See, e.g., State v. Blazina, 344 P.3d 680, 68081, 684 (Wash. 2015); ACLU of Wash. & Co-lumbia Legal Servs., Modern-Day Debtors Prisons 3 (2014), http://aclu-wa.org/sites/default/files/attachments/Modern%20Day%20Debtor%27s%20Prison%20Final%20(3).pdf [http://perma.cc/X66N-G5EA] ([T]he average amount of LFOs imposed in a felony case is $2540. . Speaker The debt in James had this characteristic, as the underlying statute specified that the total amount . Part II covers a range of preexisting federal constitutional limitations on imprisonment for criminal justice debt. 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. 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. ^ This carve-out can be found in the state bans of Michigan, New Jersey, South Dakota, and Wisconsin. 55, 6267 (1933) (tracing the development of public welfare offenses in the United States). Though de jure debtors prisons are a thing of the past, de facto debtors imprisonment is not. 1706, 172729 (2015). ^ See Armstrong v. Ayres, 19 Conn. 540, 546 (1849); Johnson v. Temple, 4 Del. .). This Part lays out how the state law protections would differ from the federal protections, and why having multiple levels of protection makes sense. Read More. Jailing the indigent for their failure to meet contractual obligations was considered primitive by ancient Greek and Roman politicians, and remains illegal and unheard of in most developed countries. Read More. 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. , shall not constitute a debt within the meaning of this section.). See generally Lee Anne Fennell & Richard H. McAdams, The Distributive Deficit in Law and Economics, Minn. L. Rev. See id. See J.C. Thomson, Imprisonment for Debt in the United States, 1 Jurid. . ^ Strattman v. Studt, 253 N.E.2d 749, 753 (Ohio 1969). Const. The United States was, after all, the first major nation to get rid of debt prisons in the 1820s and 1830s and embrace "fresh starts" for bankrupts at a time when "debtors were imprisoned. But some strict liability crimes, like statutory rape, are more easily analogized to traditional crimes despite the absence of a mens rea. I, 17; Ariz. Const. I, 11; S.C. Const. . The ACLU of North Carolina is a member of the Court Costs and Fees Working Group, which is working to end the practice of modern-day debtors' prisons in North Carolina. . 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. ^ See Recent Legislation, supra note 23, at 1313, 1315. Bd. The Debtors Act 1869 (32 & 33 Vict. ^ See id. The report calls for a slate of reforms to end debtors prison practices. The report exposes a counterproductive system for the collection of criminal justice debt. Read More. It may leave too much discretion in the hands of the same legal actors responsible for the state of play. 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. 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. Regular observers of the City court have never once seen an indigence or ability to pay hearing conducted in the past decade.). Take Wisconsin, where the municipal inability to create crimes prohibits them from punishing infractions by either fine or imprisonment. The crusade to abolish debtors' prisons also garnered strong public support from Freeman Hunt and Hezekiah Niles, influential newspaper editors and ardent reformers. See . (5 Gray) 530, 532 (1855); Eams v. Stevens, 26 N.H. 117, 120 (1852); Whitney v. Johnson, 12 Wend. II, 27; Neb. Ann. ^ A more complete history would undoubtedly be helpful, but remains outside the scope of this Note. L. Rev. ^ See, e.g., State v. Hopp, 190 N.W.2d 836, 837 (Iowa 1971); In re Wheeler, 8 P. 276, 27778 (Kan. 1885). art. 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. ^ See, e.g., Samel v. Dodd, 142 F. 68, 70 (5th Cir. . . 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. Her crime was a failure to pay the monthly fees mailed to her by a private probation company, called Judicial Correction Services. ^ E.g., In re Nichols, 749 So. ^ Complaint, Cleveland v. Montgomery, supra note 14, at 2; see Stillman, supra note 11. 227, 234 (2013). This provision is a marked improvement in light of the trend of legislative enactments, starting in 2005, that made many fines for criminal offenses non-waivable, even when an individual could prove inability to pay. Justice Douglas agreed the issue wasnt properly in front of the Court. 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. For example, violations of municipal ordinances boil down to the regulatory crimes category in states where municipalities are not empowered to imprison. art. Bearden and imprisonment-for-debt claims could operate side-by-side in a manner thats both administrable and functionally appealing. at 48 n.9 (majority opinion). . ^ Bearden v. Georgia, 461 U.S. 660, 66869 (1983). So, in 1833, Congress abolished the practice under federal law. art. . In the latest front in the nationwide fight against debtors' prisons, on June 1, 2017, the American Civil Liberties Union filed a proposed class action lawsuit in federal court to challenge the illegal arrest and incarceration of poor people in Lexington County, South Carolina, without a hearing or representation by counsel. 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. ^ See id. So far, the vast majority of academic commentators, litigators, legislatures, and other legal actors have focused on the federal protections extended under Bearden and its predecessors.165 Bearden represents a powerful tool for change, yet state law bans on debtors prisons could provide even greater protections for certain criminal justice debtors where the states interest in collecting isnt penal. 1983); Kansas City v. Stricklin, 428 S.W.2d 721, 72526 (Mo. amend. See sources cited supra note 95. ^ 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]. In December 2016, the ACLU of Nebraska released Unequal Justice: Bail and Modern Day Debtors Prisons in Nebraska. . 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. 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. III, 30; Mo. ^ In some circumstances, courts can exercise their contempt power to imprison debtors for failure to pay civil debts. 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. 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. ^ This category would include constitutional provisions with an express carve-out for crime, e.g., Okla. Const. We accept credit card, Apple Pay, and Google Pay. 543, 550 n.45 (1976); Note, Imprisonment for Debt: In the Military Tradition, 80 Yale L.J. 1987). See Act of July 9, 2015, 2015 Mo. 3, 2013), http://www.acluohio.org/wp-content/uploads/2013/04/2013_0404LetterToOhioSupremeCourtChiefJustice.pdf [http://perma.cc/R3T5-WPEL]. I, 14; N.J. Const. Dec. 23, 2014) (en banc), http://www.courts.mo.gov/sup/index.nsf/d45a7635d4bfdb8f8625662000632638/fe656f36d6b518a886257db80081d43c [http://perma.cc/BTX3-4ERC]. 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. ^ 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. (prohibiting confinement for traffic violations except in enumerated situations). ^ See, e.g., Robertson, supra note 3 (describing how a debtors mother and sister scraped together what money they [could]). In response, the Ohio Supreme Court Chief Justice announced reforms to educate local courts on how to protect indigent defendants' rights. art. This law, which applies even to those who are found not guilty of a crime but still must pay court fees and fines, unfairly targets poor people who are unable to pay expensive legal fees, resulting in tens of thousands of Tennesseans losing their means of getting and keeping a job, supporting their families and successfully re-entering society. infra notes 5559 and accompanying text (discussing judicially created solutions in certain states). Const. http://www.aclu.org/files/assets/InForAPenny_web.pdf, http://www.npr.org/blogs/codeswitch/2015/02/08/384332798/civil-rights-attorneys-sue-ferguson-over-debtors-prisons, http://www.economist.com/news/united-states/21589903-if-you-are-poor-dont-get-caught-speeding-new-debtors-prisons, http://equaljusticeunderlaw.org/wp/wp-content/uploads/2015/02/Complaint-Ferguson-Debtors-Prison-FILE-STAMPED.pdf, http://equaljusticeunderlaw.org/wp/wp-content/uploads/2014/07/Final-Settlement-Agreement.pdf, http://equaljusticeunderlaw.org/wp/current-cases/ending-debtors-prisons/, http://www.acluohio.org/wp-content/uploads/2013/04/2013_0404LetterToOhioSupremeCourtChiefJustice.pdf, http://static.aclu-co.org/wp-content/uploads/2013/12/2012-10-10-Bender-Dailey-Wallace.pdf, http://static.aclu-co.org/wp-content/uploads/2014/02/2013-12-16-Atchison-ACLU.pdf, http://www.supremecourt.ohio.gov/Publications/JCS/finesCourtCosts.pdf, http://jurist.org/paperchase/2014/02/ohio-supreme-court-warns-judges-to-end-debtors-prisons.php, http://www.theatlantic.com/national/archive/2015/08/judges-order-overhauls-fergusons-municipal-courts/402232, http://www.courts.mo.gov/sup/index.nsf/d45a7635d4bfdb8f8625662000632638/fe656f36d6b518a886257db80081d43c. Between 1821 and 1849, twelve states followed suit. ^ State v. Blazina, 344 P.3d 680, 685 (Wash. 2015). Many judges, including J. Scott Vowell, a circuit court judge in Alabama, felt pressured to make their courts financially self-sufficient, by using the threat of jail time established in those statutes to squeeze cash out of small-time debtors. art. 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. At this time, the US federal government abolished debtors' prisons, where people had previously been incarcerated . 2255s Statute of Limitations. . art. See Permanent Injunction, Jenkins v. City of Jennings, No. ^ See, e.g., Alicia Bannon et al., Brennan Ctr. The ACLU charges that DeKalb County and the for-profit company Judicial Corrections Services teamed up to engage in a coercive debt collection scheme that focuses on revenue generation at the expense of protecting poor people's rights. 2:13-cv-00732 (M.D. Thats confusing for debtors, too. ^ See Settlement Agreement, Cleveland v. Montgomery, supra note 18, at 1. For both regulatory offenses and costs, a reviewing court must assess and characterize the debt as civil or quasi-civil for the purposes of coverage under the state ban. ^ James v. Strange, 407 U.S. 128, 140 (1972) (quoting Rinaldi v. Yeager, 384 U.S. 305, 309 (1966)). . 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. During this nation's early years, debtors were regularly imprisoned for failure to pay commercial debts. 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. 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. ^ See Charles Warren, Bankruptcy in United States History 52 (1935). ^ Id. ^ 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. milestone in the process of abolitionin the state of New York and throughout the United States. ^ In addition to featuring in David Copperfield (1850) and Little Dorrit (1857), debtors prisons lurk in the shadows of Dickenss classic A Christmas Carol (1843). I, 11; Mont. ACLU Statement for U.S. Commission on Civil Rights Hearing on Municipal Policing and Courts: A Search for Justice or a Quest for Revenue. Legal Structure of Debtors' Prisons Debtors' prisons can be seen throughout the history of Western civilization in some form or another. The second is to develop an economic theory of debtors' prisons, focusing on . 2d 68, 72 (Miss. . L. Rev. 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. The report documents the routine jailing of poor people across the state solely for their failure to pay court-imposed fines and fees. See, e.g., Ex parte Phillips, 771 So. See Thacher v. Williams, 80 Mass. Professor Jerome Hall, writing in 1941, said: [The act requirement] and the mens rea principle constituted the two most basic doctrines of [Bishops] treatise on criminal law. In other states, the court simply could not imprison for failure to pay the debt, although it could pursue other execution remedies available at law. See U.S. Const. ^ See id. I, 1, XXIII; Haw. See Richard E. James, Putting Fear Back into the Law and Debtors Back into Prison: Reforming the Debtors Prison System, 42 Washburn L.J. at 256 (citing Barnes v. State, 19 Conn. 398 (1849)). at 26065; Becky A. Vogt, State v. Allison: Imprisonment for Debt in South Dakota, 46 S.D. 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. More problematically, these monetary obligations, unlike most taxes, are not indexed to wealth, income, or any other proxy for ability to pay. Stories like Clevelands have inspired a naissance of advocacy and scholarship that challenge the legal basis for incarceration upon nonpayment of criminal justice debts.19 But existing approaches have failed to recognize an alternate potential font of authority: state bans on debtors prisons.20 Most commentators have thus far focused on the 1983 Supreme Court case Bearden v. Georgia.21 Bearden held that a court cannot, consistently with the Fourteenth Amendment, revoke parole for failure to pay criminal debt when the debtor has made sufficient bona fide efforts to pay.22 Bearden established a powerful (albeit somewhat vague) standard that protects debtors whose inability to pay isnt willful, by requiring courts to hold ability-to-pay hearings.23 But, as argued below, certain types of criminal justice debtors fall under an even higher degree of protection than Bearden provides. Finally, violations of monetary obligations that are statutorily defined as civil. art. Members of the Court Costs and Fees Working Group include: Mitali Nagrecha, Criminal Justice Policy Program at Harvard Law .
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