THE BLOG
09/30/2015 10:58 am ET Updated Sep 30, 2016

The Return of the Debtors' Prison

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The debtors' prison was supposed to be a thing of the past--a relic of the colonial era that was outlawed by the United States government nearly two centuries ago. More recently, the Supreme Court ruled that jailing people who lack the means to pay criminal justice fines or fees--a modern-day form of debtors' prison--is unconstitutional. Ultimately, debtors' prisons are not only illegal, they are counterproductive: incarceration strains limited public resources and can have devastating consequences on the lives of the poor.

Nonetheless, in the wake of the recent economic recession, cash-strapped state and local governments have aggressively targeted poor individuals who have already served their criminal sentences. The March 2015 U.S. Justice Department's report on Ferguson, Missouri, provides a horrifying glimpse of what can happen when governments treat the poor as mere revenue sources.

First, governments impose "legal financial obligations" or LFOs--fees for public defenders, prosecutors, court administration, jail operation, and probation supervision--in addition to outstanding fines for traffic violations or other low-level offenses. And when the defendants fall behind on their payments, courts order them arrested and jailed without even a hearing to determine their ability to pay.

Racial disparities exist at every stage of our criminal justice system. For example, despite the fact that white and black Americans use drugs at similar rates, blacks are three times more likely to be arrested for marijuana and ten times more likely to be jailed on drug charges than whites are. The imposition of LFOs--particularly the "pay-to-stay" and booking fees charged once a defendant is incarcerated--also disproportionally affect people of color. For someone already struggling to make ends meet, a minor offense can become an inescapable poverty trap. And, most troubling, debtors' prisons create a racially skewed, two-tiered system of justice in which the poor receive harsher, longer punishments for committing the same offenses as the rich.

Aggressive imposition of LFOs on individuals due to their conviction for minor offenses, inability to pay child support due to disability or unemployment--or even because their children have been in trouble--can make it impossible to hold on to even the lowest rung of the economic ladder.

Edwina Nowlin was working a part-time job, trying to raise herself up from homelessness to self-sufficiency when a court ordered her to pay a $104 court supervision fee for her 16-year-old son, who'd briefly been sent to a juvenile detention center. When she couldn't pay, she was denied a court-appointed attorney and sentenced to 30 days in jail for contempt.

After being released for one day to work, Nowlin earned $178 - enough to pay the original fee. But, when she returned to jail she was forced to pay $120 for "room and board" and another $22 for a drug test that came back negative. Since she couldn't pay additional $142 on top of the $104, she was locked up again.

Fortunately, the ACLU was able to win her release on the grounds that she had been sentenced unconstitutionally, without an assessment of her ability to pay, and denied her right to an attorney. Without ACLU intervention, Nolan might have spent years in and out of jail, trying to pay a fine that kept growing just enough to stay out of reach, and always staying too poor to afford the legal counsel she needed.

If this practice were limited to criminal justice fees and fines, it would be bad enough. But similar approaches are being applied to private debts as well, and at an appalling scope. For example, private debt collection agencies, which buy debts from hospitals, consumer companies, and other entities, sue debtors in small claims courts, often providing the debtor with little to no notice. They do this knowing that most defendants don't know their rights and that these courts provide limited due process protections, such as a right to legal representation. There, they obtain civil debt collection judgments, and ask the court to declare the debtor in civil contempt for failure to pay or to appear in collection proceedings, resulting in the jailing of debtors until they pay the unpaid debt. In fact, at the companies' request, judges often set bail at the amount of the unpaid debt, plus interest and legal fees, without determining if the debtor even knew about the lawsuit, let alone inquiring into their ability to pay.

The ACLU is conducting a national investigation into thinly veiled private debt collection tools that criminalize poverty. Our analysis will focus on the egregious behavior of debt collection companies that are effectively usurping low-level courts to enforce dubious claims against poor people with private debts, including individuals who missed credit card payments, owe medical bills, student loans, auto loans, payday loans, mortgage foreclosure deficiencies, revolving debt accounts at stores, and rent-to-own stores.

Eliminating policies that create modern-day debtors' prisons would be an important step to help the poorest residents improve their lives, rather than perpetuating a vicious and unfair cycle that criminalizes poverty and exacerbates inequality.

This blog is part five of a series from the Rosenberg Foundation on race and criminal justice.