Debtors' Prisons Revisited?

The New York Times, last Monday, carried an article about indigent and low-income people, "mushrooming of fines and fees levied by money-starved towns across the country and for-profit businesses that administer their system," and the inevitabilities of the three coming together with growing numbers of poor people, ending up jailed and in debt for minor infractions.

Debtors' prisons, as such, widespread until the early 19th. Century, began to fall in disfavor in a wave of state constitutional reform banning the imprisonment for debt during the 1830s and with the advent of federal bankruptcy law. Today, it's generally viewed in most states that the inhibition against imprisonment for debt exists where there is no claim of fraud or other criminal liability, act, or action.

That, however, is not an absolute either. The Wall Street Journal, last year, noted, "More than a third of all U.S. states allow borrowers who can't or won't make payments on credit-card or auto loan balances and other bills to be jailed. Judges have signed off on more than 5,000 such warrants since the start of 2010 in nine counties with a total population of 13.6 million people."

"With so many towns economically strapped," the Times, last Monday, quoted Lisa W. Borden, a partner in Baker, Donelson, Bearman, Caldwell & Berkowitz, a large law firm in Birmingham, Ala., who has spent a great deal of time on the issue, as saying "there is growing pressure on the courts to bring in money rather than actually meting out justice. The companies they hire are aggressive. Those arrested are not told about the right to counsel, whether they are indigent, or offered an alternative to fines and jail… There are real constitutional issues at stake here."

"Supreme Court ruled almost 50 years ago in Gideon v. Wainwright , that those accused of crimes had to be provided a lawyer if they couldn’t afford one, but in misdemeanor offense the right to counsel is often not even brought up, even though defendants can run the risk of jail time.

"The issue of using the courts to produce income has caught the attention of the country's legal establishment, too," the article continued, reporting that "a recent study by the nonpartisan Conference of State Court Administrators, 'Courts Are Not Revenue Centers', said that in traffic violations, 'court leaders face the greatest challenge in ensuring that fines, fees and surcharges are not simply an alternate form of taxation,' and citing a 2010 study, by the Brennan Center for Justice at the New York University School of Law which examined the fee structure in the 15 states with the largest prison populations -- including California, Texas, New York, Florida' and Ohio -- asserting, 'Many states are imposing new and often onerous 'user fees' on individuals with criminal convictions. 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 companies are bill collectors," John B. Long, a lawyer in Augusta, Ga., who is taking the issue to a federal appeals court this fall told the Times, "but they're given the authority to say to someone that if he doesn't pay, he is going to jail…. There are things like garbage collection where private companies are O.K. -- No one's liberty is affected – but the closer you get to locking someone up, the closer you get to a constitutional issue."

The ABA Journal has a like article here..