Knowing that youre behind us means so much. v. Rodriguez, 411 U.S. 1, 10506 (1973) (Marshall, J., dissenting); Johnson v. Bredesen, 624 F.3d 742, 749 (6th Cir. What are some types of debt that people are sent to jail for not paying? that a State may impose unduly harsh or discriminatory terms merely because the obligation is to the public treasury rather than to a private creditor.82 The Court suggested that it was applying rational basis scrutiny, although in light of the Courts strong language some judges have read James as subjecting the classification to some form of heightened scrutiny.83, Similarly, the debtor in Fuller v. Oregon owed fees for an attorney and an investigator.84 But in Fuller, the Court upheld Oregons recoupment statute because the defendant wouldnt be forced to pay unless he was able.85 The majority found that the recoupment statute provided all of the same protections as those provided to other judgment debtors, and was therefore wholly free of the kind of discrimination that was held in James v. Strange to violate the Equal Protection Clause.86 Justice Marshall, joined by Justice Brennan in dissent, cited the Oregon constitutional ban on imprisonment for debt and pointed out that indigent defendants could be imprisoned for failing to pay their court-appointed lawyers, while well-heeled defendants who had stiffed their hired counsel could not.87 The majority opinion pointed out that this issue hadnt been preserved for appeal,88 and opined in dicta that the state ban on imprisonment for debt was an issue for state courts to decide.89 Justice Douglas, concurring in the judgment, agreed, but noted the apparent inconsistency between [the relevant state constitutional provision] and the recoupment statute.90. ^ See Peter J. Coleman, Debtors and Creditors in America 24956 (1974). Rev. I, 18; Utah Const. Ultimately, debtors' prisons are not only unfair and insensible, they are also illegal. (5 Gray) at 532. 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. ^ See, e.g., State ex rel. ^ 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. But some strict liability crimes, like statutory rape, are more easily analogized to traditional crimes despite the absence of a mens rea. ^ 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]. See Act of July 9, 2015, 2015 Mo. ^ For a similar analysis, see State v. Anton, 463 A.2d 703, 70607 (Me. This ACLU report presents the results of a year-long investigation into modern-day debtors' prisons in Louisiana, Michigan, Ohio, Washington, and Georgia. I, 18; Tex. The lawsuit challenges the countys practice of generating revenue by forcing manual labor on, threatening jail, and jailing indigent people who are unable to afford to pay fines, fees, costs, and restitution imposed by the county on criminal defendants. (called for should hyperlink to. Rev. 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. See . Rev. III, 38; Mich. Const. . In response, the Ohio Supreme Court Chief Justice announced reforms to educate local courts on how to protect indigent defendants' rights. . II, 21; N.C. Const. 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." 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). 958, 958 (Ga. 1904))); and Appleton, 71 Mass. Finally, in only the last several years, the birth of a new brand of offender-funded justice has created a market for private probation companies. What are your thoughts? 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. Murder is the crime, and help is the . 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. In 2016, the ACLU of Northern California, along with a coalition of legal organizations, sued the California Department of Motor Vehicles for illegally suspending the drivers licenses of low-income Californians. for Justice, Criminal Justice Debt: A Barrier to Reentry 18 (2010), http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf [http://perma.cc/6SVB-KZKQ]; Human Rights Watch, supra note 32, at 23. ^ See, e.g., Alicia Bannon et al., Brennan Ctr. 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]. 1312, 1316 (2015). L. Rev. The system now issues more than a thousand warrants each year to order the arrest and immediate incarceration of people who owe court fines and fees unless they pay the full amount of their debts before being booked in jail. 691, 691 (Iowa 1894). Read More. 3:15-cv-732 (S.D. The doctrinal carve-outs for crime suggest that the state bans wouldnt apply to criminal justice debt. See id. .). at 855. I, 28; N.D. Const. But there are many reasons to think theres a long road ahead. I, 19; S.D. 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 some circumstances, courts can exercise their contempt power to imprison debtors for failure to pay civil debts. ^ Complaint, Cleveland v. Montgomery, supra note 14, at 2; see Stillman, supra note 11. Indeed, in People ex rel. In 19th Century Great Britain, more than half of all people incarcerated were there because of unpaid bills and debts. 2:13-cv-00732 (M.D. ^ Id. See id. 2:13-cv-00732 (M.D. VI, 15; Tenn. Const. art. International Covenant of Civil and Political Rights. 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. L. 275 (2014). 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 . VIII; Beth A. Colgan, Reviving the Excessive Fines Clause, 102 Calif. L. Rev. ^ See Mass. 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. . Ret. . J. Pub. Const. 227, 234 (2013). ^ See, e.g., Telephone Interview with Douglas K. Wilson, supra note 7. Def., Office of the State Pub. And in the face of mounting budget deficits at the state and local level, courts across the country have used aggressive tactics to collect these unpaid fines and fees, including for traffic offenses and other low-level offenses. Nearly two centuries ago, the United States formally abolished the incarceration of people who failed to pay off debts. 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). III, 38 ([A] valid decree of a court . . 161.685(2) (1973) (omission in original)). Her crime was a failure to pay the monthly fees mailed to her by a private probation company, called Judicial Correction Services. Dist. The percentage of people living in poverty in Biloxi has doubled since 2009. ^ See, e.g., Lee v. State, 75 Ala. 29, 30 (1883); Mosley v. Mayor of Gallatin, 78 Tenn. 494, 497 (1882). ^ 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]. Credit: Michelle Frankfurter, Jacquelyn Martin / AP Photos, Support our on-going litigation and advocacy work. Krueger v. Stone, 188 So. ^ 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. Stat. As the literature has long recognized, the abolition of debtors prisons was tightly constrained in scope.103 The doctrinal limits on the bans coverage cabined them along two dimensions: First, debtors evading payment were sculpted out from the bans. for the enforcement of a judgment.); Mo. See Act of May 5, 2015, 2015 Ga. Laws 422. 4:15-cv-00253 (E.D. ^ 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. ^ See Settlement Agreement, Mitchell v. Montgomery, supra note 52, at 23. ^ See, e.g., Samel v. Dodd, 142 F. 68, 70 (5th Cir. ^ See, e.g., Robertson, supra note 3 (describing how a debtors mother and sister scraped together what money they [could]). ^ 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). art. art. ^ It may also be worth pointing out that James and Fuller dealt most concretely with attorneys fees. VI, 15 (No person shall be imprisoned for debt arising out of or founded upon a contract.). . In fact, the recent bench card promulgated by Ohio Supreme Court Chief Justice OConnor begins as follows: Fines are separate from court costs. ^ Id. Members of the Court Costs and Fees Working Group include: Mitali Nagrecha, Criminal Justice Policy Program at Harvard Law . ^ See id. ^ Cf., e.g., Kimble v. Marvel Entmt, LLC, 135 S. Ct. 2401, 241011 (2015) (identifying the ero[sion] of statutory and doctrinal underpinnings, id. In December 2016, the ACLU of Nebraska released Unequal Justice: Bail and Modern Day Debtors Prisons in Nebraska. 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. art. . Yet Hall was critiquing a blind adherence to mens rea as a ubiquitous doctrine in criminal law. Why Are We Still Sending People to Jail for Being Poor? It's Time to art. . 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 more complete history would undoubtedly be helpful, but remains outside the scope of this Note. To start, state debtor protections would not merely duplicate the federal ones. See Thacher v. Williams, 80 Mass. 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. Rev. 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. ^ A state, of course, could repeal its ban on debtors prisons, but any attempt to do so would create an unlikely coalition of criminal and civil debtors, and the political-action costs of doing so are likely too high. art. If debtors imprisonment is unconstitutional, why does it happen? 558.006 by Act effective Jan. 1, 2017, 2014 Mo. ^ This category would include constitutional provisions with an express carve-out for crime, e.g., Okla. Const. I, 16; R.I. Const. art. art. . In January 2015, the ACLU filed a federal lawsuit challenging debt collection practices that have resulted in the jailing of people simply because they are poor. Nearly two centuries ago, the United States formally abolished the incarceration of people who failed to pay off debts. 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]. To the contrary, regulatory offenses became prominent within American criminal law only after the abolition of debtors prisons.131 The Court in Morissette v. United States132 identified the pilot of the [regulatory offenses] movement in such crimes as selling liquor to an habitual drunkard and selling adulterated milk, citing cases from 1849,133 1864,134 and 1865.135 A law review article published in 1933 called the steadily growing stream of offenses punishable without any criminal intent whatsoever a recent movement in criminal law,136 placing the beginnings of the trend in the middle of the nineteenth century.137 By comparison, all but a few states had enacted their bans on debtors prisons by the 1850s.138 So reading the carve-outs as unrelated to regulatory crimes is consistent with both text and original meaning. 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.