art. The complaint, Kennedy v. City of Biloxi, was filed in the U.S. District Court for the Southern District of Mississippi in Gulfport and cites violations of the U.S. Constitution's Fourth and 14th Amendments. Laying the provisions out in one place seems necessary, as the stringcites available in the legal literature are now outdated. art. Mo. Louisianas Debtors Prisons: An Appeal to Justice, https://www.aclumaine.org/en/news/prison-being-poor-time-end-debtors-prison-system-maine, https://www.aclu.org/news/aclu-maine-calls-legislature-end-debtors-prisons, filed lawsuits challenging "pay or stay" sentences, 2015, the ACLU of Maine called for an end to practices that result in the jailing of indigent people who cannot afford to pay court fines and fees. This section advances arguments from text, purpose, and original meaning, which in many cases converge on this result. See Act of July 9, 2015, 2015 Mo. But the spirit behind them ought to drive other constitutional actors executives, legislators, and citizens to take swift action.167. That decision came in a 1983 case called Bearden v. v. Murgia, 427 U.S. 307, 320 (1976) (Marshall, J., dissenting); San Antonio Indep. ^ See, e.g., State ex rel. The proper textual and analytical hook for that question is the Excessive Fines Clause.163 They would, however, challenge a states use of collection methods unavailable to civil creditors. ^ E.g., Bearden v. Georgia, 461 U.S. 660, 66970 (1983). art. In 2016, the ACLU of Maine helped to secure the passage of LD 1639, which includes a critical provision to help curb debtors prisons. In Lepak v. McClain, 844 P.2d 852 (Okla. 1992), the Oklahoma Supreme Court sustained the contempt-of-court power when used to require the delivery of . . at 672. . In Colorado, Linda Robertss offense of shoplifting $21 worth of food resulted in $746 of court costs, fines, fees, and restitution.37 Ms. Roberts, who lived exclusively on SNAP and Social Security disability benefits, sat out her debt by spending fifteen days in jail.38 And in Georgia, Tom Barrett was sentenced to twelve months of probation for stealing a can of beer.39 But six months in, despite selling his blood plasma, Barrett still couldnt pay the costs associated with his sentence including a $12-per-day ankle bracelet, a $50 set-up fee, and a $39-per-month fee to a private probation company and faced imprisonment.40 A 2010 Brennan Center report flagged problematic criminal justice debt practices in fifteen states, including California, Texas, Michigan, Pennsylvania, and New York.41 A 2010 ACLU report claimed that required indigency inquiries the heart of the constitutional protection provided by Bearden were markedly absent in Louisiana, Michigan, Ohio, Georgia, and Washington.42. ^ See, e.g., Samel v. Dodd, 142 F. 68, 70 (5th Cir. The issue reached the U.S. Supreme Court in the 1970s, with two cases in which the Court found it unconstitutional to incarcerate people solely because they could not pay a public debt ( Williams v. ^ See Shepard, supra note 6, at 152930 (describing the rules origin in the common law precept that creditors must exhaust legal remedies before turning to equitable ones). Many Californians do not have valid drivers licenses because they cannot afford to pay the exorbitant fines and fees associated with a routine traffic citation. But some strict liability crimes, like statutory rape, are more easily analogized to traditional crimes despite the absence of a mens rea. Regulatory offenses are assessed to deter low-level misbehavior, and costs are assessed to replenish the coffers of the criminal justice system, or to fund the government. at 61 (Marshall, J., dissenting); see also id. And debtor's prisons added a nice touch -- not only were you forced to pay your debt, but you were also forced to pay your prison fees. II, 13 (exempting fines and penalties imposed for the violation of law), and states where case law has specifically mentioned crime, e.g., Plapinger v. State, 120 S.E.2d 609, 611 (Ga. 1961). ^ See, e.g., Davis v. State, 185 So. In the United States, debtors' prisons were banned under federal law in 1833. Cf. References: George Philip Bauer, "The Movement against Imprisonment for Debt in the United States" (Ph.D. Const. ^ See infra notes 10315 and accompanying text. Still, as described below, theres reason to suspect such settlements will not completely solve the problem. In 2016, the ACLU of Texas sued the City of Sante Fe for unconstitutionally jailing people for low-level offenses simply because they are poor. . at 56; see also William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. art. and is the first known codification of debt except the homestead exemption.78 Avoiding broad commentary on the general validity of various state recoupment statutes,79 the Court nonetheless expressed concern with the classification drawn by Kansass recoupment statute, which strip[ped] from indigent defendants the array of protective exemptions Kansas ha[d] erected for other civil judgment debtors,80 including state exemptions from attachment and restrictions on wage garnishment.81 While a state could prioritize its claim to money over other creditors (say, by giving its liens priority), [t]his does not mean . App. In the first category are credit card debt, unpaid medical bills and car payments, and payday loans and other high-interest, short-term cash advances, which indigent borrowers rely on but struggle to repay. Is this debt private or public? The majority rule, often tersely stated, is that they dont.141 But at least one court has held otherwise. the united states abolished debtors' prisons in 1929. Instead, Sanders, who lives in Illinois, was arrested and taken to jail. ^ See, e.g., Alicia Bannon et al., Brennan Ctr. Debtor's prisons were abolished in the United States in 1833. art. ^ See id. ^ But cf. In the late 80s and early 90s, she says, there was a major uptick in the number of rules, at the state level but also in the counties, indicating jail time for failure to pay various fines and fees.. November 6, 2017 By: Bobby Casey, Managing Director GWP Do an internet search on debtors' prisons, and the top searches will Myers v. State, 1 Conn. 502 (1816) (holding that a defendant who rented his carriage on Sunday, a crime punishable by a fine of twenty dollars, couldnt be found guilty without a showing of mens rea). See Appendix, State Bans on Debtors Prisons and Criminal Justice Debt, 129 Harv. Stanhope v. Pratt, 533 S.W.2d 567, 57475 (Mo. ^ See, e.g., Karakatsanis, supra note 3, at 26364. Given that we are looking at a substantial sales tax shortfall, its not an insignificant issue.44, In 2013, the municipal court issued over 9000 warrants for failure to pay fines and fees resulting in large part from minor violations such as parking infractions, traffic tickets, or housing code violations.45 The city also tacked on fines and fees for missed appearances and missed payments and used arrest warrants as a collection device.46, The problem has become especially severe or has at least drawn increased attention within the past several years.47 In 2015, nonprofits Equal Justice Under Law and ArchCity Defenders sued the cities of Ferguson48 and Jennings,49 Missouri, alleging that they were running the equivalents of modern debtors prisons.50 The Ferguson complaint described a Kafkaesque journey through the debtors prison network of Saint Louis County a lawless and labyrinthine scheme of dungeon-like municipal facilities and perpetual debt.51 Equal Justice Under Law and the Southern Poverty Law Center have also sued a handful of other municipalities,52 and the ACLU has pursued an awareness campaign in a number of states, sending letters to judges and mayors in Ohio53 and Colorado.54. ^ The Missouri legislation, for example, seems to constrain municipal collection of criminal justice debt within certain domains. The law implements the recommendations of Maines Intergovernmental Pretrial Justice Reform Task Force, which was convened in 2015 to make recommendations to lessen the human and financial cost of keeping so many people in jail who dont need to be there. See Judicial Procedures of the Municipal Court of the City of Montgomery for Indigent Defendants and Nonpayment, Cleveland v. City of Montgomery, No. See id. ^ A state, of course, could repeal its ban on debtors prisons, but any attempt to do so would create an unlikely coalition of criminal and civil debtors, and the political-action costs of doing so are likely too high. Over one hundred years later, another author identified the same carve-outs and concluded theres a de facto debtors prison system in the United States. . In the United States, debtors prisons were banned under federal law in 1833. Miss. Despite that, state judges continued to send people to jail for failing to pay court debts. This article has 3 letters to the editor. 3, 2013), http://www.acluohio.org/wp-content/uploads/2013/04/2013_0404LetterToOhioSupremeCourtChiefJustice.pdf [http://perma.cc/R3T5-WPEL]. Residents of Ferguson also suffered unconstitutional stops and arrests, see id. In 2013, the ACLU of Michigan, the Brennan Center for Justice, and the Michigan State Planning Body filedan amicus briefin a debtors' prison case before the Michigan Court of Appeals, urging the issuance of guidance to lower courts to prevent debtors' prison practices. 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. ^ 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. Laws at 457 (codified at Mo. 505, 51314 (2001) (describing the massive growth in statutory offenses in several states from the second half of the nineteenth century until the early twenty-first century); cf. The system now issues more than a thousand warrants each year to order the arrest and immediate incarceration of people who owe court fines and fees unless they pay the full amount of their debts before being booked in jail. See State v. Thierfelder, 495 N.W.2d 669, 673 (Wis. 1993); see also Wis. Stat. See id. ^ For a similar analysis, see State v. Anton, 463 A.2d 703, 70607 (Me. The Court also likened the classification to the invidious discrimination of Rinaldi v. Yeager, 384 U.S. 305 (1966). "Murther, murther, murther, murther " shouted Free-born John Lilburne from prison. ^ Recent Legislation, supra note 23, at 1314. And when Massachusetts abolished imprisonment for petty debts in 1811, the 2 See Matthew 18:29-31 (New International Version) on imprisonment for debt. Yet, recent years have witnessed the rise of modern-day debtors' prisonsthe arrest and jailing of poor people for failure to pay legal debts they can never hope to afford, through criminal justice procedures that violate their most basic rights. at 132. Why have two tests? The Court also required that a court consider whether alternate sanctions (such as a restructured payment schedule or community service) could meet the states interest in punishment and deterrence before resorting to incarceration. ; see also Amended Complaint at 2, Cleveland v. City of Montgomery, No. Sept. 16, 2015); Complaint, Fant v. Ferguson, supra note 48; Equal Justice Under the Law, Shutting Down Debtors Prisons, http://equaljusticeunderlaw.org/wp/current-cases/ending-debtors-prisons/ [http://perma.cc./56WT-6RLC]. ^ Cf., e.g., Miss. 899, 902 (Iowa 1932). In 2014, the ACLU of New Hampshire secured the release of three people imprisoned for failing to pay court-imposed fines that they simply could not afford. Accessibility, A Christmas Carol and Other Christmas Books, The Collapse of American Criminal Justice, Investigation of the Ferguson Police Department, Criminal Justice Debt: A Barrier to Reentry, In for a Penny: The Rise of Americas New Debtors Prisons, Office of Judicial Servs., Supreme Court of Ohio, Collection of Fines and Court Costs in Adult Trial Courts, http://www.nytimes.com/2015/09/18/us/suit-alleges-scheme-in-criminal-costs-borne-by-new-orleanss-poor.html, http://aclu-wa.org/sites/default/files/attachments/Modern%20Day%20Debtor%27s%20Prison%20Final%20(3).pdf, http://www.newyorker.com/magazine/2014/06/23/get-out-of-jail-inc, http://www.splcenter.org/sites/default/files/downloads/case/amended_complaint-_harriet_cleveland_0.pdf, http://www.splcenter.org/sites/default/files/downloads/case/exhibit_a_to_joint_settlement_agreement_-_judicial_procedures-_140912.pdf, http://equaljusticeunderlaw.org/wp/wp-content/uploads/2015/02/Complaint-Jennings-Debtors-Prisons-FILE-STAMPED.pdf, http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf, https://www.hrw.org/sites/default/files/reports/us0214_ForUpload_0.pdf, http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf, https://assets.documentcloud.org/documents/2455850/15-10-09-class-action-complaint-stamped.pdf, http://www.nytimes.com/2015/10/20/us/for-offenders-who-cant-pay-its-a-pint-of-blood-or-jail-time.html. See Recent Legislation, 128 Harv. See Richard E. James, Putting Fear Back into the Law and Debtors Back into Prison: Reforming the Debtors Prison System, 42 Washburn L.J. .). . This criminal debt "exception" to debtors' prisons is intimately linked to this country's complicated history regarding debtors and creditors. ^ Indeed, when trying to determine whether or not to read a scienter requirement into a statute, courts are guided by principles like those laid out in Morissette v. United States, 342 U.S. 246 (1952), looking to any required culpable mental state, the purpose of the statute, its connection to common law, whether or not it is regulatory in nature, whether it would be difficult to enforce with a scienter requirement, and whether the sanction is severe. Rev. Const. To the contrary, regulatory offenses became prominent within American criminal law only after the abolition of debtors prisons.131 The Court in Morissette v. United States132 identified the pilot of the [regulatory offenses] movement in such crimes as selling liquor to an habitual drunkard and selling adulterated milk, citing cases from 1849,133 1864,134 and 1865.135 A law review article published in 1933 called the steadily growing stream of offenses punishable without any criminal intent whatsoever a recent movement in criminal law,136 placing the beginnings of the trend in the middle of the nineteenth century.137 By comparison, all but a few states had enacted their bans on debtors prisons by the 1850s.138 So reading the carve-outs as unrelated to regulatory crimes is consistent with both text and original meaning.