amend. The result is one of the most draconian debtors prisons uncovered by the ACLU since 2010. Part III introduces the state bans and argues that they should be held to apply to some fines for regulatory offenses, costs, and definitionally civil debts both as a matter of sound interpretation of state law and as a matter of federal equal protection doctrine. What are your thoughts? Conceptually, then, imprisonment-for-debt claims would regulate the new debtors prisons along a fundamentally distinct dimension and should join Bearden claims as a way to challenge unconstitutional imprisonment. I, 11; S.C. Const. How to define the category? Next came the fiscal crisis of the 2000s, during which many states were contending with budget deficits and looking for ways to save4. These warrants had led to the arrest and jailing of poor people struggling to pay criminal justice debt without any consideration for, or inquiry into, their ability to pay. , shall not constitute a debt within the meaning of this section.). 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. art. 357 (1889). Rev. The history of the United States is intertwined with debt and immigrants. But for those without friends in high places, debtors imprisonment could turn into a life sentence. But, as argued below, the state bans on debtors prisons can supplement Bearden and they may well be relevant to the inquiry under James. http://www.npr.org/2014/05/24/314866421/measures-aimed-at-keeping-people-out-of-jail-punish-the-poor. 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. Eliminating the Criminal Debt Exception for Debtors' Prisons On the same day that it filed the lawsuit, the ACLU of Texas released a report, No Exit, Texas: Modern-Day Debtors Prisons and the Poverty Trap, which details the results of a six-month-long investigation into the enforcement of Class C Misdemeanor fines and fees in Texass Municipal and Justice of the Peace Courts. See Vogt, supra note 94, at 335 n.9; Note, Body Attachment and Body Execution: Forgotten but Not Gone, 17 Wm. I, 19; Pa. Const. Laws 941, 1152 (to be codified at Mo. Nonprofit journalism about criminal justice, A nonprofit news organization covering the U.S. criminal justice system, Intimate portraits of people who have been touched by the criminal justice system. 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. J. Pub. Finally, violations of monetary obligations that are statutorily defined as civil. . 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. There are two types: private debt, which may lead to involvement in the criminal justice system, and criminal-justice debt, accrued through involvement in the criminal justice system. ^ See Class Action Complaint, Fant v. City of Ferguson, No. art. 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. L. 275 (2014). 1, 11; Ga. Const. In the United States, debtors' prisons were banned under federal law in 1833. . 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, e.g., City of Fort Madison v. Bergthold, 93 N.W.2d 112, 116 (Iowa 1958); Voelkel v. City of Cincinnati, 147 N.E. ^ See infra notes 10315 and accompanying text. art. 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. 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. Miss. at 135. ^ For a similar analysis, see State v. Anton, 463 A.2d 703, 70607 (Me. at 55 (Georgia); id. Peter J. Coleman, Debtors and Creditors in America: Insolvency, Imprisonment for Debt, and Bankruptcy, 1607-1900 (1974). 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.
