By David M. Reutter

As the United States was becoming an independent nation with its own values and form of government, it discarded an archaic English system that drove the poor into greater poverty. When the U.S. ended the practice of debtors’ prisons in 1833, it ensured that people would not be jailed merely for the crime of being too poor to pay one’s debts.

More recently, the Supreme Court held two decades ago that government officials cannot revoke a defendant’s probation and send them to prison if they are unable to pay fines or restitution in criminal cases. See: Bearden v. Georgia, 461 U.S. 660 (1983).

Over the years, however, the prohibition against the criminalization of poverty steadily waned. The law may not allow one’s arrest and incarceration for nonpayment of bills, but the failure to attend court hearings or pay fines or fees, or displaying “contempt of court” when a creditor files suit, has been a backdoor pathway to jail for some debtors. [See: PLN, July 2011, p.40; May 2011, p.22, 26; May 2010, p.40; April 2010, p.8].

Breast cancer survivor Lisa Lindsay of Herrin, Illinois found herself in jail over a medical bill she was informed she didn’t owe. “She got a $280 medical bill in error and was told she didn’t have to pay it,” reported the Associated Press. “But the bill was turned over to a collection agency, and eventually state troopers showed up at her home and took her to jail in handcuffs.”

Tacking legal fees onto the original debt resulted in Lindsay, a teacher’s assistant, paying more than $600 to resolve the matter. “I paid it in full so they couldn’t do it to me again,” she said.

In Illinois, a $300 debt put disabled roofer Jack Hinton behind bars. According to a hearing transcript, Hinton had received $1,000 after he finished a roofing job. The court told him, “Mr. Hinton, you had $1,000 in your pocket, you chose to spend it elsewhere in violation of the court order. That lands you in jail.” His wife took out a loan – going into debt herself – to pay the amount Hinton owed so he would be released.

Jack Dawley, 55, who is unemployed, spent 10 days in an Ohio jail in 2012 because he didn’t make payments on around $1,500 in fines imposed in a DUI case and other criminal cases in the 1990s.

Alabama resident Deunate Jews was charged with harassment in 2008; although the charge was eventually dismissed, he was ordered to pay $166 in court costs. Placed on probation with a private company – Judicial Correction Services – due to his inability to pay, he ended up in jail at least four times when he failed to pay monthly probation fees. Jews and several other people are now suing the company for civil rights violations.

The use of private probation companies is widespread in Alabama and other states; the companies are paid from the fees imposed on probationers, who risk going to jail if they don’t pay up. Judicial Correction Services, which is owned by Correctional Healthcare Companies, operates in over 185 court systems in Alabama, Florida, Georgia and Mississippi.

The recent recession has worsened the problem. “More people are unemployed, more people are struggling financially, and more creditors are trying to get their debt paid,” said Illinois Attorney General Lisa Madigan. “We’re using public resources to collect private debts. At what point do you say it’s illegal?”

Most people have debts of some type: credit card balances, rent or mortgages, payday loans, utility bills, etc. Debt collectors claim they don’t want consumers in jail. “A consumer that has been arrested or jailed can’t pay a debt,” a representative from the Illinois Collectors Association told the Associated Press. “We want to work with consumers to resolve issues.”

Then again, if people can’t or won’t pay what they owe anyway, putting them in jail sends a clear message to other debtors.

States with cash-strapped budgets have been squeezing people who owe fines, court costs and other payments in an effort to increase revenue. “The sad truth is that debtors’ prisons are flourishing today, more than two decades after the Supreme Court prohibited imprisoning those who are too poor to pay their debts,” said the ACLU. “In this era of shrinking budgets, state and local governments have turned aggressively to using the threat and reality of imprisonment to squeeze revenue out of the poorest defendants who appear in their courts.”

A 2010 report by New York University’s Brennan Center for Justice found there are unseen costs to the return of debtors’ prisons. “Many states are imposing new and often onerous ‘user fees’ on individuals with criminal convictions,” the report states. “Yet, far from being easy money, these fees impose severe – and often hidden – costs on communities, taxpayers, and indigent people convicted of crimes. They create new paths to prison for those unable to pay their debts and make it harder to find employment and housing, as well as to meet child-support obligations.”

These “poverty penalties” include late fees, payment plan fees and interest when a debt can’t be paid in full. Alabama, for example, charges a 30% collection fee. Florida allows debt collection agencies to add a 40% surcharge to the original debt. “Collection courts” are being used in some Florida jurisdictions, which allow debtors to be jailed even though they have no right to representation by a public defender.

“If you don’t have resources for an attorney or can’t afford other fees associated with court, you get a different brand of justice,” noted Mike Brickner, director of communications and public policy at the ACLU of Ohio, which issued a report on debtors’ prisons in that state in April 2013. The report found that in some cases, “debtors’ prisons actually waste taxpayer dollars by arresting and incarcerating people who will simply never be able to pay their fines.”

Not having an attorney seriously hindered Jack Hinton. While he tried to explain he had not worked much since hurting his neck and back after falling off a roof, the collection agency’s attorney proved he had received the $1,000 for a roofing job without paying the agency. Hinton told the court he paid other bills with the money. “I got no sympathy, whatsoever,” he said.

An October 2010 report by the ACLU, “In For a Penny: The Rise of America’s New Debtors’ Prisons,” examined the issue of people being locked up for owing debts and focused on five states – Georgia, Louisiana, Michigan, Ohio and Washington. It found people were being jailed at “increasingly alarming rates” due to debts they couldn’t pay.

According to an August 23, 2013 press release by the Brennan Center for Justice, the Center filed an amicus brief in support of the appeal of Joseph Bailey, a Michigan resident who was incarcerated because he was unable to pay $14,000 in court-ordered restitution in a criminal case. The brief noted that debtors’ prisons “are still alive and well in courts across Michigan despite the clear constitutional prohibition on such practices.”

“Imprisoning defendants who are too poor to pay court-related fees is more than just a violation of their constitutional rights,” said Jessica Eaglin, counsel in the Justice Program at the Brennan Center. “It perpetuates an endless cycle of poverty and punishment that worsens the growing costs of unnecessary incarceration.”

The problem has surfaced in other states and some remedial measures have been introduced, with mixed results. Advocates in Minnesota were unsuccessful in having a bill passed that would have allowed debtors to complete an affidavit detailing their income and assets when police execute a warrant related to debt collection. A bill was filed in Alabama to form a County and Municipal Probation Advisory Council to oversee private probation companies that collect fines and fees from probationers; however, the legislation failed to pass.

The Illinois House of Representatives passed HB 5434 in March 2012, which prohibits putting people in jail for failure to pay a debt unless they receive notice and have an opportunity to appear in court. It also requires personal service of court appearance notices to be executed at the debtor’s home rather than being mailed. Arrest warrants will expire after a year, debtors shall be provided an income and asset form, and bail money must be returned to the debtor instead of being used to pay off their debt unless the debtor “willfully has refused to comply with a payment order.”

The bill was signed into law on July 25, 2012.

“Creditors have been manipulating the court system to extract money from the unemployed, veterans, and even seniors who rely solely on their benefits to get by each month,” Illinois Attorney General Madigan said in support of the legislation. “Too many people have been thrown in jail simply because they’re too poor to pay their debts. We cannot allow these illegal abuses to continue.”

Sadly, they have become all too common in states that have not taken steps to curb such exploitive debt collection practices. As a result, debtors’ prisons remain a growing problem.

Sources: Associated Press, CBS News, Brennan Center for Justice, The Anniston Star

(First published by Prison Legal News and used here by permission)

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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