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Did debtors' prison ever really go away?

Debtor's wing of the Philadelphia Co. Prison in Pennsylvania. Built in 1836, demolished in 1968
Courtesy of the Library of Congress, HABS PA,51-PHILA,672A--2

The inmate who died in Macomb County jail was there because he’d failed to pay a traffic ticket.

Across Michigan and the rest of the country, people are being jailed over failing to repay fines and fees.

It sounds sort of like the old concept of debtors’ prison.

But debtors’ prisons were banned by the federal government in 1833. In 1983 the U.S. Supreme Court handed down a unanimous decision in Bearden v. Georgia stating that putting people in jail simply because they can’t afford to pay a fine is unconstitutional, and that doing so violates their rights under the Equal Protection clause of the 14th Amendment.

Eli Hager is a University of Michigan graduate with the Marshall Project who has studied the history of the debtors’ prison.

Hager tells us that the idea of debtors’ prisons goes back to the early 1700s, “when we were just beginning to imprison people for all kinds of crimes.”

In those days people wouldn’t bat an eye at the idea of being thrown in jail for nonpayment, but that attitude started to change around the end of the century.

“In America it increasingly seemed old-world and feudal because a lot of immigrants had come to America to escape debt,” he says.

That attitude really proliferated after the “very costly” War of 1812, Hager tells us. “As more and more people became indebted, they were objecting to debtors’ imprisonment.”

"The Supreme Court on three separate occasions has said that if you're indigent, you should not be put in jail for being in debt."

And then in 1833, the entire concept of the debtors’ prison was banned by federal law.

Hager tells us that judges and other judicial bodies have “very consistently” upheld the ban ever since.

“The Supreme Court on threeseparateoccasionshas said that if you’re indigent, you should not be put in jail for being in debt,” he says.

The law has been adamant for centuries that debtors can’t be jailed just because they can’t pay up, so why did an unpaid $772 fine land that Macomb County man in jail?

Hager tells us that the “return of debtors’ imprisonment” began in the ‘70s and ‘80s when jailing individuals for low-level crimes became more normal. Among those low-level crimes was debt, and as time went on states passed more laws and statutes that allowed jail time for nonpayment.

Stage two of the return happened in the early and mid-2000s, Hager says, when, “a lot of states were facing budget crises, and they were kind of using those laws to fill their coffers with traffic tickets and court fees and fines.”

The third stage has been through the growth of what Hager calls “the offender-funded justice system.” He’s talking about private prison firms and probation companies, who he says charge the offenders for drug testing, public defender fees, court fees, room and board while in jail, and much more.

“Making offenders pay all of that themselves has led to all of this debt,” he says.

The motivation behind “pay or stay” sentencing is a little shaky, according to Hager.

“Several times it’s been shown that the cost of incarcerating someone is often much higher than the amount of money to be gained by actually getting the traffic ticket or the fine or the fee,” he says.

Hager tells us that it’s at a judge’s discretion how exactly to enforce debt-related issues. In the Supreme Court’s 1983 Bearden decision, it was stated that the imprisonment for debt of someone who was indigent is unconstitutional, while an individual who willfully refused to pay their debt could be jailed.

"If you find yourself in jail because of not paying a traffic ticket or a medical bill, know that you do have the right to file suit against your state government."

But Hager says there’s a language issue here. “In that decision they didn’t exactly define those two words, ‘willful’ and ‘indigent,’ so judges make that determination on their own.”

So a judge can decide whether or not someone’s nonpayment is willful based on as little as how nice your clothes are when you show up to court, according to Hager.

“It’s just a stance that judges take; they say you’re obstructing justice, you’re in contempt of court, you’re disobeying a court order because you’re not paying,” he says.

Whether or not it’s totally constitutional, Hager tells us there are two ways that debt can land you in jail. The first is debt accrued through the aforementioned traffic tickets, court fees or fines, money you owe the state. The other is private debt, such as an unpaid credit card or medical bill, for which the lender can take you to civil court.

“And then if you don’t show up for civil court, or if you fail to respond to the action, the judge can throw you in jail not for the nonpayment itself but for something like contempt of court or disobeying a court order or failing to appear,” Hager says. “So now it becomes criminal.”

Hager makes a point to note that even though you can face those criminal consequences, individuals have no right to an attorney in civil court as they do when facing criminal charges.

He tells us that several lawsuits have been levied against Alabama, Louisiana, and Missouri challenging this practice, and “several counties in those states have actually had to stop jailing people who were in debt or behind on payments,” but he isn’t aware of any further action contesting debtors’ imprisonment.

“If something like that happens to you, if you find yourself in jail because of not paying a traffic ticket or a medical bill, know that you do have the right to file suit against your state government,” he says.

Eli Hager is a writer with the Marshall Project, a nonprofit and nonpartisan news organization that covers the criminal justice system in the U.S.

– Ryan Grimes, Stateside

Stateside is produced daily by a dedicated group of producers and production assistants. Listen daily, on-air, at 3 and 8 p.m., or subscribe to the daily podcast wherever you like to listen.
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