1906); Boarman v. Boarman, 556 S.E.2d 800, 80406 (W. Va. 2001); State v. Burrows, 5 P. 449, 449 (Kan. 1885); see also Thomson, supra note 103, at 364 ([T]he imprisonment is for the contempt and not for the debt. (quoting State v. Becht, 23 Minn. 411, 413 (1877))). Const. 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. 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. ^ The possibility that all violations of municipal ordinances (in some states) might fall under the bans is made more morally salient by the fact that many courts treat such violations as civil for the purposes of setting (lowered) procedural protections for defendants. 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. ^ 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. 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. ^ See Peter J. Coleman, Debtors and Creditors in America 24956 (1974). ^ E.g., S.D. But the spirit behind them ought to drive other constitutional actors executives, legislators, and citizens to take swift action.167. New York released prisoners owing less than $25 in 1818, doubled this threshold in 1825, and abolished imprisonment for debt in 1831. 549, 55758 (1941). . Rev. ^ The 1849 Virginia statute took this approach, which was carried over into West Virginia when that state broke away from Virginia. "M'aidez, m'aidez," says the international distress signal. if the judgment debtor unjustly refuses to apply the identified property towards the satisfaction of a judgment; however, the court struck it down under the ban on imprisonment for debt when contempt was used to require the judgment debtor to set aside and deliver a portion of his/her future income toward the satisfaction of the judgment debt. Id. Lanz v. Dowling, 110 So. While the United States no longer has brick and mortar debtors' prisons, or "gaols for debtors" of private debts, the term "debtor's prison" in modern times sometimes refers to the practice of imprisoning indigent criminal defendants for matters related to either a fine or a fee imposed in criminal judgments. Sch. See State v. Thierfelder, 495 N.W.2d 669, 673 (Wis. 1993); see also Wis. Stat. 2255s Statute of Limitations. 448, 448 (La. For example, violations of municipal ordinances boil down to the regulatory crimes category in states where municipalities are not empowered to imprison. Thats confusing for debtors, too. 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. 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 . 227, 234 (2013). But the carve-outs for crime? 2d 227, 233 (Ala. Crim. 556.061(29)) (defining infraction). See Complaint, Cleveland v. Montgomery, supra note 14, at 23. 556.016 (2000), repealed and replaced by Act effective Jan. 1, 2017, 2014 Mo. 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. at 6061. ^ See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. 1983). 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. at 15657 (discussing taxes). art. at 58 (Douglas, J., concurring in the judgment); see also id. In 1970, in Williams v. Illinois, the high court decided that a maximum prison term could not be extended because the defendant failed to pay court costs or fines. Laying the provisions out in one place seems necessary, as the stringcites available in the legal literature are now outdated. 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. During this nation's early years, debtors were regularly imprisoned for failure to pay commercial debts. art. at 668. 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. And more than 30 years ago, the U.S. Supreme Court made it clear: Judges cannot send people to jail just because they are too poor to pay their court fines. 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. at 132. Peter J. Coleman, Debtors and Creditors in America: Insolvency, Imprisonment for Debt, and Bankruptcy, 1607-1900 (1974). See U.S. Const. Dir., ACLU of Ohio, et al., to Chief Justice Maureen OConnor, Ohio Supreme Court (Apr. ^ 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. As much of the furor regarding contemporary debtors prisons revolves around municipalities, this is no minor point. In 2017, the ACLU of Tennessee challenged debtors prisons by taking on a Tennessee law that requires a person who has been charged with a crime or who has served prison time to pay off all court fees and fines within one year or else have their drivers license revoked. 1509, 152627. The crusade to abolish debtors' prisons also garnered strong public support from Freeman Hunt and Hezekiah Niles, influential newspaper editors and ardent reformers. art. art. Const. ^ E.g., In re Nichols, 749 So. 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. 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. . Two signatories of the Declaration of Independence, James Wilson, an associate justice of the Supreme Court, and Robert Morris, a close friend of George Washingtons, spent time in jail after neglecting loans. (called for should hyperlink to. 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. I, 28; N.D. Const. Some of these laws the state bans on debtors prisons were enacted over a hundred years ago, but can and should be invoked today.166 The task of operationalizing these bans for a new social evil rests in the hands of litigators and courts. Ct. 1834); Werdenbaugh v. Reid, 20 W. Va. 588, 593, 598 (1882) (discussing Virginia and West Virginia). (5 Gray) 530, 532 (1855); Eams v. Stevens, 26 N.H. 117, 120 (1852); Whitney v. Johnson, 12 Wend. Through the Tennessee Coalition for Sensible Justice, the ACLU of Tennessee supported the passage of SB 802/HB 1173, which would amend the law to offer courts alternatives to revoking peoples licenses, including allowing a person to file an indigence affidavit and have all their fees and fines waived, giving courts the ability to permit restricted licenses to allow people to drive to work, school, recovery programs and other necessities, and setting up a payment plan to pay the fees over time. She thought she might get a ticket. 2d 68, 72 (Miss. Meanwhile, with the advent of bankruptcy law, individuals were given a way out of insurmountable debt, and creditors were made to share some of the risk inherent in a loan transaction. See id. J. Pub. 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. Though de jure debtors prisons are a thing of the past, de facto debtors imprisonment is not. (4 Harr.) ^ Cf., e.g., Kimble v. Marvel Entmt, LLC, 135 S. Ct. 2401, 241011 (2015) (identifying the ero[sion] of statutory and doctrinal underpinnings, id. for the support of a spouse or dependent children, or for the support of an illegitimate child or children, or for alimony . , shall not constitute a debt within the meaning of this section.). References: George Philip Bauer, "The Movement against Imprisonment for Debt in the United States" (Ph.D. 99-37-13 (West 2015) ([A] default . art. v. Fritz, 449 U.S. 166, 179 (1980). 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. I, 12; Miss. ; see also Amended Complaint at 2, Cleveland v. City of Montgomery, No. I, 17; Wis. Const. art. ^ See, e.g., Karakatsanis, supra note 3, at 26364. Take Wisconsin, where the municipal inability to create crimes prohibits them from punishing infractions by either fine or imprisonment. art. Int. art. at 672. 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]. Part II covers a range of preexisting federal constitutional limitations on imprisonment for criminal justice debt. They are still generally accepted as such in this country. Jerome Hall, Prolegomena to a Science of Criminal Law, 89 U. Pa. L. Rev. See, e.g., Letter from Mark Silverstein, Legal Dir., ACLU of Colo., and Rebecca T. Wallace, Staff Atty, ACLU of Colo., to Chief Justice Michael Bender, Colo. Supreme Court, and Judge John Dailey, Chair, Criminal Procedure Comm. 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. at 133.). I, 21 (No person shall be imprisoned for debt arising out of or founded on contract, express or implied, except in cases of fraud or breach of trust.); In re Sanborn, 52 F. 583, 584 (N.D. Cal. ^ Stillman, supra note 11. ^ For example, in 1855, Massachusetts passed a statute saying: Imprisonment for debt is hereby forever abolished in Massachusetts. Appleton, 71 Mass. 4; Wash. Const. II, 27; Neb. ^ 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]. ^ Complaint, Cleveland v. Montgomery, supra note 14, at 2; see Stillman, supra note 11. Instead, Sanders, who lives in Illinois, was arrested and taken to jail. ^ See, e.g., Colo. Const. I, 18; Utah Const. ^ 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. Led by James Herttell, Chairman and advocate for abolition, the committee resolved that "all . ^ 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]. c. 62) was an Act of the Parliament of the United Kingdom of Great Britain and Ireland that aimed to reform the powers of courts to detain debtors . that the Oregon courts would strike down the statute as being inconsistent with the constitutional provision if they faced the issue.). 753, 767 (1943) (citing as generally accepted the maxim that an act does not make one guilty unless the mind is guilty). ^ Complaint, Cleveland v. Montgomery, supra note 14, at 4. See Judicial Procedures of the Municipal Court of the City of Montgomery for Indigent Defendants and Nonpayment, Cleveland v. City of Montgomery, No. I, 22; Iowa Const. The ACLU and ACLU affiliates across the country have been exposing and challenging modern-day debtors' prisons across the country. Facing this pressure from advocates and litigants, cities, courts, and legislatures have made some changes. The second category, termed criminal justice financial obligations, actually consists of three sub-categories: fines, i.e. Indeed, federal constitutional law may compel an answer on this point. art. ^ See, e.g., Lee v. State, 75 Ala. 29, 30 (1883); Mosley v. Mayor of Gallatin, 78 Tenn. 494, 497 (1882). 143, 14954 (2002) (discussing civil contempt); id. The ACLU Racial Justice Program and allies across the country are bringing lawsuits and advocacy to expose and challenge these practices. I, 11; Mont. A provision of the law permits courts to waive mandatory fines in some circumstances. Other. at 42, 53. . Well never put our work behind a paywall, and well never put a limit on the number of articles you can read. The second is to develop an economic theory of debtors' prisons, focusing on . I, 19; Idaho Const. Posted on . See Appendix, State Bans on Debtors Prisons and Criminal Justice Debt, 129 Harv. 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. 293, 294 (Ga. 1905) ([I]n enacting the statute now under consideration, the [l]egislative purpose was not to punish . at 5. Rev. (prohibiting confinement for traffic violations except in enumerated situations). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2544519, Digital Duplications and the Fourth Amendment, Reconciling State Sovereign Immunity with the Fourteenth Amendment, Suspended Justice: The Case Against 28 U.S.C. See, e.g., Derek A. Westen, Comment, Fines, Imprisonment, and the Poor: Thirty Dollars or Thirty Days, 57 Calif. L. Rev. at 367. ^ See Armstrong v. Ayres, 19 Conn. 540, 546 (1849); Johnson v. Temple, 4 Del. 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. at 46 (quoting Or. ^ 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 sources cited supra note 95. amend. L. Rev. See, e.g., Ex parte Phillips, 771 So. 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. 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. This kind of open-ended standard, taken on its own terms, may generate a number of problems. ^ See Complaint, Fant v. Ferguson, supra note 48; Complaint, Jenkins v. Jennings, supra note 24.