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    File photo, prisoners from Sacramento County await processing after arriving at the California Department of Corrections and Rehabilitation Deuel Vocational Institution (DVI) in Tracy, Calif

    Retro Revival No One Asked For: The Return of Debt Prisons to Modern America

    © AP Photo / Rich Pedroncelli, File
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    Debtors' prisons, which incarcerate those unable to pay debts, are regarded as a grotesque medieval antiquity, a relic of barbaric ages past. However, in the modern US, thousands of individuals continue to be jailed each and every year because they cannot pay fines and fees.

    Changing international judicial, social and economic attitudes have resulted in debtors' prisons being made illegal across the globe. In 1976, this precept was enshrined Article 11 of the International Covenant on Civil and Political Rights, which states "no one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation."

    In the US, imprisonment of debtors was eliminated at the federal level in 1833, leaving the issue up to individual states — although many were quick to follow Washington DC's lead, and several subsequent Supreme Court judgments seemingly reinforce the notion no American citizen should be incarcerated purely because they cannot pay debts.

    Dead Precedents

    For instance, in 1970, the Court ruled in Williams v. Illinois extending maximum prison terms because an individual is too poor to pay fines or court costs violates their right to equal protection under the Fourteenth Amendment. The next year, in Tate v. Short, judges found it unconstitutional to impose a fine as a sentence, then automatically convert it into a jail term "solely because the defendant is indigent and cannot forthwith pay the fine in full."

    Perhaps most notably, the 1983 ruling in Bearden v. Georgia, found the Fourteenth Amendment bars courts from revoking probation for a failure to pay a fine without first inquiring into a person's ability to pay, and considering whether there are adequate alternatives to imprisonment.

    The case dated back to October 1980, when Bearden was sentenced to three years of probation and ordered to pay US$750 in fines and restitution for burglary and receiving stolen property, US$200 of which was due almost immediately. The defendant duly borrowed money from his parents to make a partial payment to the court, but rapidly fell behind when he was fired from his job a few weeks after his conviction. 

    Bearden was unable to find another job, and in June 1981 his probation was revoked because he was unable to pay US$550 still owing to the court. As a result, he was sentenced to serve the remainder of his probation term in prison, and he spent two years behind bars.

    The 1983 Supreme Court decision freed him — and set the precedent sentencing courts must inquire into a defendant's reasons for failing to pay a fine or restitution before sentencing them to serve time in prison, and that imprisoning someone merely due to their poverty was fundamentally unfair.

    Or Did It?

    A 2010 study of the 15 US states with the highest prison populations (Alabama, Arizona, California, Florida, Georgia, Louisiana, Illinois, Michigan, Missouri, New York, North Carolina, Ohio, Pennsylvania, Texas, Virginia) conducted by the Brennan Center for Justice found all were home to jurisdictions that routinely arrested people for failing to pay debts or appear at debt related hearings. Such practices are not restricted to those 15 states, either — they can also be found in Arkansas, Colorado, Indiana, Maryland, Minnesota, Oklahoma, South Carolina, Tennessee and Washington.

    US flag
    US flag
    The authors identified four causes that lead to debt-related arrests. State laws making criminal justice debt a condition of probation, parole, or other correctional supervision with failure to pay resulting in arrest and imprisonment; state laws considering imprisonment a penalty for failure to pay criminal justice debt; citizens choosing jail time under state programs where imprisonment is a way of paying down court-imposed debt; jailing of persons owing civil debt related to child support arrears, justified by the legal fiction incarceration is not for the debt, but for not obeying a court order to do so.

    In brief, the "debts" leading to incarceration in modern America are monetary penalties imposed and enforced by municipal courts. Casualties of this phenomenon are disproportionately poor, and disproportionately black — after all, it is the extremely impoverished that typically cannot repay debts, and the latter often implies the former in the 21st century US.

    Moreover, for many victims, imprisonment for debt can be a vicious circle without end — every time they miss a payment or court date, the court issues another warrant, and the individual is subject to arrest, jail, and additional fines and court fees, ad infinitum.

    Walk into municipal courts in these states on any given day and there are likely to be row upon row of poor local residents awaiting punishment for failing to pay prior penalties. Some can expect further debt, others imprisonment — and those who fail to appear because they know they can't pay will be subject to arrest warrants. Later, whether, days, weeks, months, or even years subsequently, perhaps during a routine street or traffic stop, they will be arrested then jailed, perhaps fined even more too.

    This cycle has an inevitably deleterious impact on individuals, almost entirely unacknowledged in the US mainstream — although affected citizens have a determined ally in the form of the American Civil Liberties Union (ACLU). Since 2009, the group has exposed and challenged incarceration for debt, and urged governments and courts to pursue more rational and equitable approaches to criminal justice debt.

    Dropping Pennies

    The same year the Brennan Foundation for Justice conducted its examination, the ACLU issued In For A Penny, which highlighted many shocking instances of modern-day debt imprisonment.

    For instance, in Washington, 'Lisa' (a pseudonym) saw her legal debts exceed $60,000 due to the state adding interest on unpaid liabilities. Though she hadn't committed a crime for almost a decade, she was arrested and incarcerated four times because of unpaid debt, including two occasions when she was not provided with an attorney before the judge imprisoned her. In one instance, she was jailed even though she told the judge she lacked the funds to pay her electricity bill.

    In Georgia, Ora Lee Hurley was found to be in violation of probation and sentenced to a jail diversion facility for a minimum of 120 days or until she paid back a $705 fine owing from a drug possession conviction in 1990. She remained incarcerated for eight months after she completed the 120-day sentence, solely because she was unable to pay her fine.

    Prisoner
    Prisoner
    In Ohio, Howard Webb was thrown in jail four times over a six-year period for failing to pay US$2,882.36 for various criminal and traffic offenses. During this period, Webb — a dishwasher earning US$7 per hour — entered into several payment plans, made some payments, signed up for community service, and wrote numerous letters to the court asking for early release so he could retain his employment and make payments.

    These requests were all denied, with the court stating it would only release him if it received "all the money" he owed. In all, he served 330 days in jail. Had the judge followed state law requiring Webb be credited US$50 a day toward his debt each day he was incarcerated, his time in jail would've covered $16,500 in fines — over five times what he owed.

    In Louisiana, Sean Matthews, a homeless construction worker, assessed US$498 in fines and costs when he was convicted of possession of marijuana in 2007. He was arrested two years later after failing to pay these fines, and spent five months in jail at a cost of more than $3,000 to the City of New Orleans.

    In the same state, Gregory White, a homeless man arrested for stealing $39 worth of food from a local grocery store, was fined US$339, later converted to community service after he was jailed because he could not afford his fines. Failing to complete his community service due to an inability to afford the bus fare there, he spent a total of 198 days in jail.

    The ACLU even documented instances of convicts being charged for their imprisonment. In Michigan, Walter Riepen was sentenced to 30 days in jail for a misdemeanor, and within days of his release received a letter from a collections agency billing him US$60 per day for his jail stay, a total of US$1260. Dependent on social security disability payments to survive, Riepen faced being sent back to prison over failure to pay these charges.

    The Why Of It All

    The ACLU report makes clear imprisoning those who fail to pay fines and court costs is a relatively recent and growing phenomenon — the obvious question is, what accounts for this proliferation?

    In brief, ever-reducing state incomes — driven by unfunded tax cuts and federal under-investment — have produced gaping budgetary holes, meaning states desperate for any and all sources of revenue increasingly look to court-imposed fines and fees to shore up their finances.

    A line of handcuffed prisoners, walk through the cell block as they are transferred to other prisons from Alcatraz Island in San Francisco. (File)
    © AP Photo /
    A line of handcuffed prisoners, walk through the cell block as they are transferred to other prisons from Alcatraz Island in San Francisco. (File)
    As a result, very minor infractions — including speeding, failure to signal, not wearing a seatbelt, wearing "saggy pants", "manner of walking in roadway", and property upkeep violations (such as placing trash cans in the wrong place) — are pursued aggressively and penalized disproportionately harshly by authorities. Moreover, in a perverse irony, it is the poorest states, and poorest regions of states, that generally need the most income support, so America's poorest are maximally impacted by this policy.

    In theory, readily fining defendants and employing aggressive collection efforts should provide a steady stream of gains to state exchequers — but while it does undoubtedly provide money where none existed previously, there is little apparent official effort to gauge whether such a strategy is actually a net financial gain.

    After all, imprisoning people is expensive, and as the ACLU's case studies amply demonstrate, jail terms for non-payment of debt can very easily end up costing far in excess of an original debt. Furthermore, incarcerating indigent individuals further reduces their ability to repay debts, and the disruption in their lives and the lives of their families and loved ones can lead to increased public costs when they are forced to use social welfare programs to survive.

    Even when individuals do not end up in prison, aggressive collection efforts can render the policy equally ineffective, as issuing warrants, conducting hearings, and using collections agents and law enforcement officials to locate and detain debtors is cumulatively costly.

    Related:

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    debt, imprisonment, prison, human rights, United States
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