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Debtors' Prison — It Still Exists in
21st Century America
Underfunded criminal and civil courts are functioning as
abusive collection agencies.

The National Law Journal
March 24, 2014

sk the average American whether failing to pay a debt can land a person in jail, and the answer will likely be "no." But that would be wrong. Although the federal government abolished imprisonment for debt in 1833, more than one-third of the states permit incarceration of those in default of their civil obligations. Furthermore, despite the U.S. Supreme Court's holding in Bearden v. Georgia (1983) that revoking probation for failure to honor a criminal fine or make restitution abridges due process when obligors through no fault of their own are unable to pay, the constitutional mandate is widely in the breach. Affronted by these shameful practices, several organizations have recently called for abolition of debtors' prison in its modern incarnations. Their appeals must be heeded promptly.

In February, American Civil Liberties Union and the Brennan Center for Justice at New York University School of Law wrote to the Consumer Financial Protection Bureau regarding the misuse of civil contempt to obtain repayment of private debts.

People in arrears on an obligation such as a payday loan or credit card bill, or burdened with a default judgment, risk ending up behind bars if they fail to obey court orders to attend asset examinations or other types of enforcement proceeding — when the creditor procures a so-called body attachment or similar court order of arrest. Those individuals are taken into custody and held until they can make bail or post bond set in the amount of the claimed debt — which is turned over to the creditor.

In a bad economy, creditors often have great difficulty getting repaid. Some might think that the lockup is just what deadbeats deserve, especially if they flout the courts. Yet for every artful dodger evading pursuit in $200 running shoes, many more hapless borrowers want to pay what they owe but cannot. Frequently, too, debtors have not been willfully contemptuous but rather never received notice of the order to appear. Uneducated, unrepresented, unable to comprehend legal jargon, even those who are properly served may not understand their legal duties.

It is one thing to argue that, absent a declaration of bankruptcy, straitened financial circumstances should not excuse indebtedness. It is quite another to say that civil contempt procedures, meant to uphold judicial authority, should be allowed to function (in the words of ACLU and the Brennan Center) "as thinly disguised debt collection devices," invoked in the service of private interests.

Equally shocking, impoverished probationers, convicted of minor misdemeanors, can wind up in jail when they are unable to make payment of court costs, fines, restitution or similar fees upon which their freedom is conditioned. That happens routinely, in more than 1,000 lower-level courts, without any meaningful inquiry or sometimes any inquiry at all into the defendant's financial resources. In February 2014, Human Rights Watch published an exposé of these practices, "Profiting From Probation." The report shows that not only civil but also criminal courts may operate, either on their own or in league with private outfits, as abusive debt collectors.

The result, as it notes, is to turn probation on its head: An institution aimed at avoiding incarceration becomes the means of imprisoning convicts. Many of these people require no monitoring, let alone jail, and thus would have gotten a lesser sentence except for the "need" to use the credible threat of confinement as leverage to obtain money.

The root evil is the underfinancing of local government. The lack of funding puts pressure on criminal courts to support themselves with fines and fees or even to function as profit centers, subsidizing other institutions. "Offender funding" hits the poorest defendants hardest: the unemployed or those surviving on public assistance or what they can glean from fringe vocations like selling blood. Since they cannot pay what they owe up-front, the court puts them on installment plans that often bear no relationship to their means. When the inevitable missed payment triggers a probation violation, the unfortunate offenders are sent to jail, where they can remain until they have served the maximum sentence for their crime. That period may be considerable, especially if the defendants received consecutive terms for several misdemeanors. And should they gain early release (perhaps by borrowing to settle the arrears), their next default will only prompt the identical process and result. Such a procedure amounts to revolving-door injustice.

Worst, about one-quarter of the states permit courts to outsource offender-funded probation to private enterprise. Outfits whose profits stem solely from fees charged to their "clients" assume traditional court duties, like deciding whether defendants can pay what they owe — which now includes the debt to the company, the size of which can dwarf the original obligation. Plainly, these companies have every incentive to use abusive collection methods (shaking down defendants' families, obtaining rubber-stamped warrants of arrest) to secure their money.

In sum, for these unfortunates, there is no "Get out of Jail Free" card. They should never have been jailed in the first place.