The Resurgence of Debtors’ Prison: The For-Profit Criminalization of the Impoverished

BY JANYL RELLING – On January 29, 2015, The American Civil Liberties Union (ACLU) filed a federal lawsuit challenging debt collection practices that have resulted in the jailing of people because they are poor.[1]  The case was brought on behalf of Kevin Thompson, a teenager from DeKalb County, Georgia, who was jailed because of his inability to pay $838 in court fines and probation company fees stemming from a traffic ticket.[2]  When interviewed by the ACLU, Thompson painfully recalled the sadness he felt when he was sentenced and realized that his mother was going to see him put in handcuffs.  He also recollected the fear and shame he felt sitting in a jail cell for five days.[3]

Historically, the institution of debtors’ prison went from being an integral and essential regulatory mechanism in credit and debt relations to being seen as a barbarous relic of a different era, unfit for civilized countries.[4]  Debtors’ prisons were outlawed in the United States nearly 200 years ago.[5]  Moreover, a Supreme Court decision that was decided almost 32 years ago afforded indigent defendants protections from being jailed for inability to pay fines and fees so as not to deprive these individuals of their Fourteenth Amendment rights.[6]  Notwithstanding these occurrences, we are witnessing a resurgence of practices strikingly similar to those employed centuries ago.

Criminal justice debts are levied on offenders in three primary ways: (1) fines levied to punish the offender, (2) penalties levied for restitution to victims, and (3) assessments with the goal of public cost-recovery, which essentially shifts the financial burden of probation directly onto probationers.[7]  While criminal justice debt is very much ingrained in the American criminal justice system and serves various purposes in our modern legal landscape, it is crucial that alternatives are provided to those who are making a good faith effort to make payments but are simply unable to do so—an alternative other than incarceration.  The Supreme Court recognized this need in the landmark case Bearden v. Georgia.[8]

In a unanimous decision, the Supreme Court held in Bearden v. Georgia that a sentencing court cannot properly revoke a defendant’s probation for failure to pay a fine and make restitution, absent evidence and findings that the defendant was somehow responsible for the failure or that alternative forms of punishment were inadequate to meet the State’s interest in punishment and deterrence.[9]  The requirement that a trial court conduct an inquiry into the indigent defendant’s ability to pay before revoking his or her probation, so as not to “automatically turn a fine into a prison sentence” for an individual who failed to adhere to a payment schedule, provides an invaluable safeguard for the disadvantaged.[10]  The degradation of this safeguard will undoubtedly further the trend of criminalizing the poor through a de facto two-tiered system where a defendant with financial means can evade jail time and defendant of limited means cannot.

Despite the clear instructive of the Court in Bearden, individuals of low socio-economic status, like Thompson, face the adverse effects of debt sentences—effects that go beyond the time spent in a cell.  The unconstitutional practices that unduly burden the poor further stigmatize both the individual and the community at large.  The removal of the probationer from the home, however brief, fractures the family unit.  If this individual contributes monetarily to the household, it is likely that once freed from prison that his or her employment will be terminated and inevitably lead to additional hardships.[11]  Further, the community is effected as the debtor-prisoner represents yet another statistical excuse for the poor locality, oftentimes comprised of people of color, to be subjected to more policing.[12]

The injustices that arise from the unconstitutional practices Bearden intended to quash are clear.  Until both society and the legal system reckons with the unbalanced and potentially abusive nature of “offender-funded” justice, we will continue to witness the criminalization of the indigent and a rise in 21^st century de facto debtors’ prisons.[13]

[1] Thompson v. DeKalb County, Am. Civil Liberties Union (Jan. 29, 2015), https://www.aclu.org/criminal-law-reform-racial-justice/thompson-v-dekalb-county.

[2] Complaint at 1, Thompson v. DeKalb County, No. 1:15-mi-99999-UNA (N.D. Ga. filed Jan. 29, 2015), https://www.aclu.org/sites/default/files/assets/2015.01.29_filed_thompson_complaint.pdf.

[3] Kevin Thompson, For-Profit Companies Are Helping to Put People In Jail for Being Poor. I Should Know, I Was One of Them, Blog of Rights (Jan. 29, 2015, 10:50 AM), https://www.aclu.org/blog/criminal-law-reform-racial-justice/profit-companies-are-helping-put-people-jail-being-poor-i-sh.

[4] Gustav Peebles, Washing Away the Sins of Debt: The Nineteenth-Century Eradication of the Debtors’ Prison, 55 Comparative Studies in Soc’y & History, 701, 704 (2013).

[5] Joseph Shapiro, Supreme Court Ruling Not Enough To Prevent Debtors Prisons, NPR (May 21, 2014, 5:01 AM), http://www.npr.org/2014/05/21/313118629/supreme-court-ruling-not-enough-to-prevent-debtors-prisons.

[6] See infra note 8.

[7] Ann Cammett, Shadow Citizens: Felony Disenfranchisement and the Criminalization of Debt, 117 Penn St. L. Rev. 349, 378-379 (2012).  The third type of fee is particularly troubling because in many municipalities, it is charged by private, for-profit companies.

[8] 461 U.S. 660 (1983).

[9] Id. at 675.

[10] Id. at 674.

[11] Shapiro, supra note 5.

[12] Am. Civil Liberties Union, supra note 1.

[13] Sarah Stillman, Get Out of Jail, Inc., The New Yorker (June 23, 2014), http://www.newyorker.com/magazine/2014/06/23/get-out-of-jail-inc.

—

Janyl Relling is a 2016 Staff Editor of the Race & Social Justice Law Review.

For updates about our journal, visit our Facebook and our Twitter.