Because the purpose of costs is not purely or even mostly to punish, they are arguably debts within the text of the state bans. In the end, however, imprisonment for debt was abolished not by an organized reform movement but, instead, by substantial changes in commercial practices and the corresponding . 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.. ^ See Class Action Complaint, Fant v. City of Ferguson, No. Const. art. Read More. 2:13-cv-00732 (M.D. Speaker Can we count on your support today? 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. Donations from readers like you are essential to sustaining this work. "Murther, murther, murther, murther " shouted Free-born John Lilburne from prison. ^ See Bearden v. Georgia, 461 U.S. 660, 672 (1983). This Part lays out how the state law protections would differ from the federal protections, and why having multiple levels of protection makes sense. See Recent Legislation, 128 Harv. . 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. ^ See, e.g., Telephone Interview with Nathan Woodliff-Stanley, Exec. That decision came in a 1983 case called Bearden v. Similarly, some collections statutes explicitly redefine certain debts as civil for the purposes of collection. ^ See Fla. Stat. 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. And when Massachusetts abolished imprisonment for petty debts in 1811, the 2 See Matthew 18:29-31 (New International Version) on imprisonment for debt. See Vogt, supra note 94, at 335 n.9; Note, Body Attachment and Body Execution: Forgotten but Not Gone, 17 Wm. 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. ^ For a similar analysis, see State v. Anton, 463 A.2d 703, 70607 (Me. Rev. 775.08(3) (2015); Mo. See Act of July 9, 2015, 2015 Mo. 556.061(29)) (defining infraction). 1983). So, in 1833, Congress abolished the practice under federal law. Also in this category are costs of imprisonment (billed to inmates in 41 states), and of parole and probation (44 states). Bd. At this time, the US federal government abolished debtors' prisons, where people had previously been incarcerated . References: George Philip Bauer, "The Movement against Imprisonment for Debt in the United States" (Ph.D. Const. Sometimes called legal financial obligations (LFOs), the total debt generally includes a mix of fines, fees, court costs, and interest.5 And unlike civil collection actions (for the most part6), incarceration is very much on the menu of sanctions that the unpaid creditor, usually a municipality,7 can impose. once we encounter involuntary manslaughter, other crimes of negligence, and various statutory offenses). A. Const. ^ E.g., In re Nichols, 749 So. Now, the imprisonment-for-debt claims wouldnt challenge the propriety of assessing such charges in the first place. Read More. Stat. . Const. 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. 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: I, 18 (No person shall ever be imprisoned for debt. (emphasis added)). 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]. at 133.). at 138. And it seems ill-equipped to protect impoverished debtors who see no reason to embark upon, much less document, futile searches for credit or employment. Dec. 23, 2014) (en banc), http://www.courts.mo.gov/sup/index.nsf/d45a7635d4bfdb8f8625662000632638/fe656f36d6b518a886257db80081d43c [http://perma.cc/BTX3-4ERC]. 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. 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. 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. art. II, 27; Neb. 938.29(4) (2015) (specifying that such debtors shall not be denied any of the protections afforded any other civil judgment debtor). ^ See, e.g., Mich. Const. L. Rev. 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. Read More. International Covenant of Civil and Political Rights. Yet, as noted, they may be jailed for failing to show up at a civil hearing or for not resolving civil debt. VIII; Beth A. Colgan, Reviving the Excessive Fines Clause, 102 Calif. L. Rev. 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. The late Professor William J. Stuntz also noted that regulatory crimes and core crimes like murder have dramatically different histories. Stuntz, supra, at 512. Feb. 8, 2015) [hereinafter Complaint, Jenkins v. Jennings], http://equaljusticeunderlaw.org/wp/wp-content/uploads/2015/02/Complaint-Jennings-Debtors-Prisons-FILE-STAMPED.pdf [http://perma.cc/LM7S-LZW2]. See Judicial Procedures of the Municipal Court of the City of Montgomery for Indigent Defendants and Nonpayment, Cleveland v. City of Montgomery, No. Dir., ACLU of Ohio, et al., to Chief Justice Maureen OConnor, Ohio Supreme Court (Apr. So what do we really know about modern-day debtors imprisonment how it returned, when, and where? Const. at 172627. ^ Two lawsuits against the City of Montgomery have settled. If debtors imprisonment is unconstitutional, why does it happen? ^ See, e.g., City of Danville v. Hartshorn, 292 N.E.2d 382, 384 (Ill. 1973) (describing violations of municipal ordinances as quasi-criminal in character [but] civil in form (quoting City of Decatur v. Chasteen, 166 N.E.2d 29, 39 (Ill. 1960))). identified property owned by and in the possession or control of the judgment debtor . ^ This carve-out can be found in the state bans of Michigan, New Jersey, South Dakota, and Wisconsin. The ACLU had found that debtors' prisons were "flourishing" in this country, "more than two decades after the Supreme Court prohibited imprisoning those who are too poor to pay their legal debts." 549, 55758 (1941). Im confused, is this a civil or a criminal matter? Members of the Court Costs and Fees Working Group include: Mitali Nagrecha, Criminal Justice Policy Program at Harvard Law . Theres probably no principled reason to distinguish between attorneys fees and other costs, like a judgment fee or a clerk fee, but doctrinally the Court may have felt especially sensitive to discrimination with respect to assigning lawyers, given its recent decision mandating counsel for indigent defendants in Gideon v. Wainwright, 372 U.S. 335 (1963). 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. 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. Debtors' prisons were supposed to have gone out with the 19th century, but there is evidence that they still exist today in the United States. the act of securing the money or property of another with a fraudulent intent . ^ Id. 4:15-cv-00253 (E.D. See Complaint, Cleveland v. Montgomery, supra note 14, at 23. ^ 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]. . ^ Id. ^ See, e.g., Davis v. State, 185 So. Bd. Rev. https://harvardlawreview.org/2015/11/state-bans-on-debtors-prisons-and-criminal-justice-debt-appendix. at 66162. The statewide lawsuit was filed on behalf of drivers who have had their drivers licenses suspended in violation of their statutory, due process, and equal protection rights. ^ James v. Strange, 407 U.S. 128, 130 n.3 (1972) (emphasis added) (quoting Kan. Stat. at 46 (quoting Or. ^ See Krishnadev Calamur, A Judges Order Overhauls Fergusons Municipal Courts, The Atlantic (Aug. 25, 2015), http://www.theatlantic.com/national/archive/2015/08/judges-order-overhauls-fergusons-municipal-courts/402232 [http://perma.cc/7R4J-CPCZ]. 1509, 152627. 833, 88687 (2013); Alexandra Natapoff, Misdemeanor Decriminalization, 68 Vand. . 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. The report documents the realities of today's debtors' prisons, and provides state and local governments and courts with recommendations for pursuing sensible and fair approaches to collecting criminal justice debt. ^ Georgias law provides guidance for courts in indigency determinations. 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. But the spirit behind them ought to drive other constitutional actors executives, legislators, and citizens to take swift action.167. Under the International Covenant of Civil and Political Rights, the practice is listed as a civil-rights violation. The question was, how? The investigation revealed that Ferguson law enforcement including both police and the municipal court was deployed to raise revenue.43 In March 2010, the citys finance director emailed thenPolice Chief Thomas Jackson: [U]nless ticket writing ramps up significantly before the end of the year, it will be hard to significantly raise collections next year. 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. 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. 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. Laws 453. 489, 491 (1977) (State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Courts interpretation of federal law. 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. ^ See, e.g., Fla. Stat. Imprisonment for indebtedness was commonplace. In the process, we were lowering our standards for what constituted an offense deserving of imprisonment, and, more broadly, we were losing our sense of how serious, how truly serious, it is to incarcerate. Instead, Sanders, who lives in Illinois, was arrested and taken to jail. . I, 21; Minn. Const. I, 19; Pa. Const. Read more. As she was booked and processed, she learned that she had been jailed because she owed debt $730 to be precise, related to an unpaid medical bill. . (quoting Lamar v. State, 47 S.E. art. . 293, 294 (Ga. 1905) ([I]n enacting the statute now under consideration, the [l]egislative purpose was not to punish . 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 united states abolished debtors' prisons in 1929. III, 30; Mo. It happens for two reasons. Finally, violations of monetary obligations that are statutorily defined as civil. November 6, 2017 By: Bobby Casey, Managing Director GWP Do an internet search on debtors' prisons, and the top searches will 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. Miss. Legislation passed in 1841, 1867, and 1898 replacing a system that criminalized bankruptcy with one designed to resolve as much debt as the debtor could afford, while absolving the remainder. Read More. 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 56; see also William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. The percentage of people living in poverty in Biloxi has doubled since 2009. at 26065; Becky A. Vogt, State v. Allison: Imprisonment for Debt in South Dakota, 46 S.D. 357 (1889). Bill of Rights, 16; Ky. Const. 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. ^ The Missouri legislation, for example, seems to constrain municipal collection of criminal justice debt within certain domains. Ultimately, debtors' prisons are not only unfair and insensible, they are also illegal. at 65 (Washington). Still, as described below, theres reason to suspect such settlements will not completely solve the problem. I, 18; Utah Const. As one might guess, the states have split on whether costs fall within the scope of the bans. 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. at 46, and, of course, the death of Michael Brown at the hands of the police in August 2014, see id. ^ See Telephone Interview with Douglas K. Wilson, Colo. State Pub. I, 10; Colo. Const. Mo. Read More. In 19th Century Great Britain, more than half of all people incarcerated were there because of unpaid bills and debts. Oct. 9, 2015) [hereinafter Complaint, Bell v. Jackson], https://assets.documentcloud.org/documents/2455850/15-10-09-class-action-complaint-stamped.pdf [https://perma.cc/3CKT-XXX4] (describing reduction of debt at a rate of $58 per day of work); Karakatsanis, supra note 3, at 262 ($25 per day). Read more. Def., Office of the State Pub. 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]. Stay informed about our latest work in Debtors' Prisons First name Last name Email ZIP code art. In December 2016, the ACLU of Nebraska released Unequal Justice: Bail and Modern Day Debtors Prisons in Nebraska. See Werdenbaugh, 20 W. Va. at 593, 598. (Oct. 10, 2012), http://static.aclu-co.org/wp-content/uploads/2013/12/2012-10-10-Bender-Dailey-Wallace.pdf [http://perma.cc/5F9Y-U7RC]; Letter from Rebecca T. Wallace, Staff Atty, ACLU of Colo., and Mark Silverstein, Legal Dir., ACLU of Colo., to Herb Atchison, Mayor of Westminster, Colo. (Dec. 16, 2013), http://static.aclu-co.org/wp-content/uploads/2014/02/2013-12-16-Atchison-ACLU.pdf [http://perma.cc/7ZZS-X3RL]. Many state courts could therefore plausibly hold today that fines for regulatory offenses constitute civil debt under their state constitutional bans. The ACLU Racial Justice Program and allies across the country are bringing lawsuits and advocacy to expose and challenge these practices. In February 2014, the Supreme Court of Ohio released a new "bench card" giving much-needed instructions to Ohio judges to explain how to avoid debtors' prison practices in their courtrooms. art. 1312, 1316 (2015). .). The crusade to abolish debtors' prisons also garnered strong public support from Freeman Hunt and Hezekiah Niles, influential newspaper editors and ardent reformers. Dist. L. 275 (2014). 359, 360 (N.Y. Sup. She thought she might get a ticket. They ultimately settled. 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]. . Const. ^ See Complaint, Fant v. Ferguson, supra note 48; Complaint, Jenkins v. Jennings, supra note 24. I, 20 (That no person shall be imprisoned for debt.); Ga. Const. 4:15-cv-00252 (E.D. ^ See, e.g., Samel v. Dodd, 142 F. 68, 70 (5th Cir. .). Debtors' prisons impose devastating human costs. 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 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]. See id. 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. art. .); see also Jerome Hall, Interrelations of Criminal Law and Torts: I, 43 Colum. I, 15; Okla. Const. art. Krueger v. Stone, 188 So. L. Rev. (citing Commonwealth v. Nichols, 92 Mass. What are your thoughts? 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. art. ^ See, e.g., Alec Karakatsanis, Policing, Mass Imprisonment, and the Failure of American Lawyers, 128 Harv. Murder is the crime, and help is the . $120/year. ^ See, e.g., Shepard, supra note 6, at 153132. III, 38 ([A] valid decree of a court . 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.
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