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Down With Debt Graded Version
Down With Debt Graded Version
Down With Debt Graded Version
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Running Head: DOWN WITH DEBT
Abstract
This paper will present an in depth analysis of unfair debt practices as well address the
reemergence of so called debtors prisons in contemporary America. In the pages to follow the
author will present a thorough evaluation of the historical origins of these institutions, their
inhumane conditions, and legislation set in place to protect both the rights of the creditor and the
debtor. Furthermore, the author will cite numerous examples of pertinent case law which have
established the legal precedent for addressing matters of indigent debtors. Lastly, the author will
present and refute the basis of opinion for those who hold the belief that debtors prisons are
necessary institutions, and will suggest methods of legal and educational reform which may
Debtors Prisons?
What is a debtors prison? Debtors prisons are archaic institutions dating back to the
middle ages in which those who defaulted on their debts were essentially held for ransom in
inhumane facilities until members of their families agreed to pay the remaining debts plus
interest, often an impossible task for them to do. The issue is further stipulated through racial and
economic bias as generally speaking those imprisoned in these institutions are disproportionally
targeted groups such as minorities and lower class Americans. Though a historical and outdated
practice, debtors prisons still exists in nations such as Greece, The United Arab Emirates, and
more surprisingly the United States. The incarceration of debtors is a trend which continues to
grow overtime nationwide. Due to the vague nature of the laws concerning what constitutes the
willful failure to pay their debts that decision is often left to the discretion of the judges which
leads to legal leeway which could easily violate the rights of the defendant. The trend of cyclical
debt is easily acquired as it typically begins with a basic debt that in turn gives way to late fees
and high interest rates that leave the debt nearly impossible to repay which subsequently leads to
the imprisonment of these individuals. Many are arrested simply for failing to repay court fines
Modern Reemergence
In the wake of the Great Recession taking place in the early 1990s many states turned
towards the criminal justice system as an alternative source of revenue to alleviate their budget
constraints. They did this by reviving the long discarded system of imposing high amounts of
debt upon individuals. According to Sobol (2015-1016) with the Maryland law review the
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growth in incarceration of individuals for failure to pay LFOs has accompanied the increase in
criminal justice debt. Indigents are jailed or imprisoned despite statutory and case law
prohibitions against incarceration based on their inability to pay their debts. The problem with
this system is that it taps into a greater underlying issue of racial bias and socioeconomic
disparity. In other words the poorest and most ostracized members of society are the ones being
targeted by this broken system. An article published by the Harvard Law Review indicated a
recent example of this backwards system of revenue by describing the experience of an Ohio
woman, Harriet Cleveland, who acquired a minor traffic infraction at a roadblock while
commuting her children to school ("State Bans on Debtors' Prisons and Criminal Justice Debt,"
2016). Cleveland unable to pay the fine in pull at that moment opted to pay portions at a time
while still transporting herself and her children to and from work and school. Outside collection
agencies inflated her fines and she incurred a substantially higher amount of debt and was
arrested unexpectedly. Unable to pay the now highly inflated fee she was separated from her
children for over 50 days in a county jail and upon release lost her job and still had substantial
fees to pay
Historical Context
Georgia Colony
The concept of the criminalization of debt, and heavy taxation is deeply ingrained in
American history, so much so that one of the original 13 American colonies founded for the sole
purpose of isolating indigent debtors. By the early 18th century British prisons were had an ever
increasing population of poor indebted individuals which led to terrible conditions within these
institutions which prompted British army officer and enlightenment era thinker James
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Oglethorpe, who suggested with the idea of founding a colony which could assist the poor and
MemoryTimelineClassroomPresentation|TeacherResourcesLibraryofCongress,"n.d.) . In honor
of then King George III, in 1733 the Georgia Colony was founded partially with the intention of
protecting the British colonies from infringements from neighboring Spanish and French claims
(a provision which acted as King Georges motivation for chartering the colony as he cared not
for the condition of English debtors); however, its true purpose was to experimentally test the
possibility of a sustainable society for imprisoned debtors, in turn detaching them from English
society. Unfortunately the colony proved to be an immense failure as its residents quickly
Shays Rebellion
In 1786 the years following the American Revolution there was a separate rebellion
occurring on the home front. This one rooted in mistreatment of veterans, and financial hardship.
Daniel Shays, a farmer and Revolutionary War soldier of high appraisal, led a militia of fellow
farmers and laborers, and proceeded to attack various governmental institutions and tax
collecting offices. Upon return home from the war these farmers were heavily taxed and incurred
huge amounts of debt due to the destruction of their property during the years of the revolution;
furthermore, due to their agricultural profession years of unattended crops made it impossible for
these farmers to receive any feasible income. Properties were claimed by creditors, taxes we
levied, and tempers flourished. This exploitation of their service drove Shays and his militia to
demand change of the newfound government, and also prompted the creation of a stronger
system in lieu of the Articles of Confederation, thus leading to the drafting of the Constitution in
1787(Riggs 1194-1196). Though it would take years for the effects of the rebellion to take place
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the efforts of Shays Rebellion would permanently change the treatment of debtors in American
history, and we are able to observe budding forms of legislation better designed to protect the
rights of citizens.
Historically speaking there is no societal era that acts as a better example of the abuse and
mistreatment of the poor than Victorian England. Prior to the latter half of the 19th century the
poor working class of Victorian England faced harsh financial situations imposed upon them by
unfair legislation, and inflated prices. Tens of thousands of laborers were imprisoned for
defaulting upon their debts, and were confined to debtors institutions having all their assets
seized in process making up over half of the English prison population (Cammett,20122013).
Take into consideration that compared to neighboring western European nations who often had
progressive limits to the time that indigent debtors could serve, in England those sentencings
were often indefinite. Conditions became so severe that entire families would be confined to
these institutions, reproduce, and give birth in the dirty and malnourished facilities. Debtor
communities began to arise which led to an increase in child labor due to the fact the children
were the only ones permitted to leave in search for labor. This influx of child laborers which
spurred alongside the mid industrial revolution England led to the extremely poor labor
conditions, and subsequent child labor laws enacted all done in an effort to repay the debts of
their families. The most notorious of these debtor prisons was Marshalsea located in London
which housed the most indigent debtors. One of the more notable prisoners kept in this facility
was John Dickens, father to English novelist Charles Dickens who wrote the satirical publication
preventing them from working, and permanently leaving them unable to repay their claim.
Australia Colony
One of the most notable examples of the ostracization of debtors lies in the founding of
Australia. Originally dubbed the colony of New South Wales, Australia was founded in 1788
with the intention of acting as a penal colony similar to the circumstances leading to the founding
of Georgia. British Naval Captain Arthur Phillip led the expedition alongside numerous ships
transporting English convicts. Over three fourths of the 1000 man expedition were criminals
most of whom were only given that status due to their financial status. On January 26th the penal
colony was formally established being an English colony citizens of the colony were obligated to
abide by English law. This being the case many of the harsher forms of legislation imposed on
the poorer population of England, were transferred over to the budding colony. In an article titled
Victorian Debt La Go Directly to Jail, the contributors Dick Gross & Carolyn Bond analyze the
legality of these Victorian Era laws particularly the Imprisonment of Fraudulent Debtors Act.
This act permits the submission of a fraud order on the behalf of the creditor which demands a
court summons of the debtor. Should the debtor fail to appear or refuse payment they face the
possibility of additional fines or as the name suggests, imprisonment. The act requires that
regardless of the defendants compliance to the issued warrants that the state magistrate issue a
warrant of commitment that calls for the indefinite imprisonment of the debtor until the debt is
paid in full presenting the defendant with the ultimatum of whether to immediately repay the
of debt. Numerous institutions exists for the sole purpose of imprisoning fraudulent debtors
including the Mount Joy correctional facility in Dublin. According to (Wells,1991) within the
past 5 years nearly two thousand individuals were jailed for their inability to repay outstanding
debts. Despite harsh criticisms from progressive reformers many of the outdated anachronistic
legislature is still in place; furthermore, they point out the sheer expense of housing these
prisoners which push an upwards of $1000 per week costing the state more than the debt is even
worth. Victims of oppressive debt laws also face social isolation as indecency is socially
degrading, Dublin resident James Boyce who was kept in the aforementioned Mount Joy prison
noted the conditions within e.g. no working plumbing, overcrowding, and disease and also noted
Relevant Legislation
14th Amendment
The Bill of rights exists as a safeguard to American citizens from oppressive government
infringes upon basic human rights. The fourteenth amendment guarantees every citizen equal
protection under the law stating that No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any state deprive
any person of life, liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws. ("14thAmendment,"n.d.)this means that any
citizen cannot be deprived of life, liberty, or property on the discriminatory basis of race,
religion, ethnicity, etc. this umbrella includes socioeconomic standing; Therefore, the existence
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of debtors prisons is inherently unconstitutional despite virtually all of them acting on a state
level. Because these institutions are targeted at lower income Americans in addition to the
observable bias towards minorities, they cannot under the supreme law of the land continue to
operate.
The FDCPA, ratified in 1977, was designed to protect consumers from unfair debt
collection practices from third party agencies. These practices include contacting debtors outside
of specified hours, not ceasing contact upon the request of the victim, threatening legal action or
harm, or giving false information in regards to the status of that individuals credit report;
furthermore, according to studies conducted by nonprofit Urban Institute, these agencies were
much more likely to use aggressive collection tactics in areas of heavy African American or
Latino population, lower socioeconomic standing, and lower education merit (Crowell, 2016).
Despite the existence of protective legislation many still fall victim to the abusive methods of
these agencies. Annually debt collection agencies receive an upwards of $14 Billion these debts
come in a variety of different mediums aside from traditional consumer debt. Examples include:
medical fines, student loans, credit fees etc. Many of these collection agencies have in recent
years intertwined themselves with the criminal justice system. Making it legally permissible
for these agencies seize the assets of the indigent debtor; however, citizens remain unaware of
their protection from these aggressive collection tactics under the protection of the FDCPA. In
recent years a federal initiative has been set in place to counter the actions of unfair debt
Representative Mark Tanako. Congressman Tanako a vocal opponent to for-profit debt collection
agencies has taken the initiative to propose legislation capable of reforming the criminal justice
systems approach to debt collection. Elements of the proposed bill include ceasing federal
funding to state districts which permit the operation of debtor prisons, defining the term pay-
order probationer, and the bill itself acts as an amendment to the Omnibus Crime Code and Safe
Streets Act of 1968 (Tanako, H.R., 2016). The act has yet to be ratified by the House of
Representatives; however, it has garnered bipartisan (chiefly Democratic) support from other
House members.
In September of 1980 petitioner Bearden, the recipient of stolen property, was formally
indicted on the felonious charges of theft and burglary. Due to the state of Georgias First
Offenders Act (Ga.Code Ann. 27-2727) the petitioner was not issued a guilty verdict from the
trial court instead he was sentenced to a total of four years of probation with the condition that he
also pay a $500 court fine, and $250 of restitution for the stolen property. The required that $100
be paid that day an additional $100 be paid the next day, and the remaining $550 be paid over the
course of 4 months. The petitioner successfully paid the first two fines; however, due to
extenuating circumstances lost his employment and due to his lack of education, and marketable
skills was unable to find another. Because the petitioner was not receiving income for this period
he became unable to pay the court issued and notified his probation office that his payment
would be late due to his financial situation. The state revoked his probation status and demanded
that he spend the remainder of the probationary period in prison. Petitioner then filed a hearing to
the Georgia Court of Appeals who rejected his claim that the ruling represented a violation of the
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Equal Protection Claus of the 14th Amendment. Further review was denied from the Georgia
Supreme Court. Following this ruling courts have decided that they may not revoke an
individuals probation, or imprison them for their inability to pay court fees if no evidence exists
that shows the willful disobedience of the court or showing that they have not made a bona
fide effort to retrieve employment (Bearden v. Georgia, 1983). the Fourteenth Amendment
requires that the sentencing court inquire into the reasons a defendant has failed to pay.'
The 1971 Supreme Court Case Tate v. Short was a case in which the petitioner Preston
Tate unable to pay nine traffic offenses totaling to $425. He was convicted in Houston Texas
Corporate Court, and issued a prison sentence of 85 days to work off the remainder of his debt at
a rate of $5 a day at a labor prison, then a permissible practice through Texas law. After 21 days
of incarceration he submitted a writ of habeas corpus which was denied. The presiding court over
that decision, the Texas Court of Criminal Appeals, upheld the decision to imprison him under
"Each person committed to the county jail or to the municipal prison farm for nonpayment of
their fine arising out of his conviction of a misdemeanor in the corporation court shall receive a
credit against such fine of five dollars ($5.00) for each day or fraction of a day that he has
served." (L.Goldfarb,1971).
Tate appealed that ruling to the Texas Supreme Court which held that imprisoning an individual
for their inability to pay a fine is Unconstitutional discrimination against the poor. Their
indigence should not act as the sole determination of their guilt, and Standards of imprisonment
must fall equally on all defendants irrespective of their economic conditions. Meaning that
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socioeconomic class is not the sole consideration for debt imprisonment, this case acted as a
This class action suit filed by the American Civil Liberties Union challenges the arrests of
multiple impoverished individuals by the city of Biloxi, Mississippi due to outstanding court
fines. Despite the growing trend in the city of increasing poverty the municipality refuses to
address the issue and instead chooses to pursue prosecuting these individuals. The case primarily
focuses on Qumotria Kennedy who had charges brought against them for failure to pay traffic
fines. She was jailed without being granted a court hearing violating her civil liberties As a result
of her imprisonment she lost her job further rendering her unable to pay the already existing fees.
This is just one example of thousands of Americans experiencing the same broken system. The
case resulted in a proposition for a series of reforms to the for-profit debt system. The case was
settled by an agreement with Kennedy and Boloxi chief of police John Miller. The parties agreed
on the following settlements: Judges must place a defendants income as a factor of consideration
prior to setting an individuals bail or allocating fines, reforming career training to better prepare
public defenders for cases of this nature, and reformation of for profit probation institutions.
2015 the ACLU filed a class action suit against Benton County, WA for the unconstitutional
imprisonment of individuals who failed to pay court imposed debts. The money received through
the extortion of these debts went towards funding services and providing additional revenue
towards the county. Benton County had the habit of imposing court fines up to thousands of
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dollars with complete disregard the individuals ability to pay those fines. At these sentencings
the defendant is given no reasonable opportunity to explain their financial status. This countys
policy are in blatant violation of the both the Federal and Washington state constitutions. Which
have already established that an individual may not be incarcerated for their inability to pay
Contrasting Opinion
A distinction must be made between consumer and non-consumer debt. Many would
argue the legality of institutions set in place to benefit the creditor as they feel no compelling
obligation to supplant the debt incurred by fiscally irresponsible individuals via tax payments;
however, the type of debt which they are often describing is consumer debt, or debt incurred by
the purchase of consumer goods or services, furthermore consumer debt is entirely preventable,
and is indicative of poor financial decisions on the behalf of the debtor. Conversely there exists
non consumer debt, which is often the debt incurred by individuals in these facilities. Non-
consumer debt is any debt incurred via required expenses such as medical bills, utilities, or
natural disaster, and is oftentimes unpredictable and can be further agitated by outside factors
such as lack of insurance, lack of supplemental income etc. Consider the following example.
Jane is the primary source of income for her family since the death of her husband, and is also
the caretaker for her elderly mother. Jane suffers an accident one day which requires medical
attention and misses work because of it. For the time where she is incapacitated she must hire a
living assistant to help her mother while she recovers. Once she has recovered she must still
attend physical therapy she has incurred tremendous debt due to the cost of the assistant,
uninsured medical fees, physical therapy, in addition to basic expenses such as food, water,
electricity, and rent. Due to her absence she was fired by her job and now has no income to
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provide for her family or pay her expenses. Her credit deteriorates as a result and she now faces
potential legal repercussions. Is it just to imprison her for her outstanding debt? This is but one
example of a continuing trend of uncontrollable debt which people are being punished for, and
the aforementioned question is one that we as a society must be able to answer. We must
Potential Solutions
Theres a necessity for educational reform in regards to debt in recent years there has
been a slight initiative to educate students on basic financial management; however, these
courses are often only semester courses that do not emphasize the dangers of incurring debt.
There should be a mandate to incorporate a financial component to basic social studies courses
required of students such as government, civics, or history; furthermore, there exists a need to
clarify the existing vagueness of laws pertaining to the criminalization of debt, and present more
definite punitive acts to respond to indigent debtors besides indefinite imprisonment. The
Constitution fails to explicitly state formal protections against infringements of individual rights
in relation to criminal debt nor does it explicitly state the illegality of debtor facilities; however,
layered in its amendments particularly the 14 th are protective clauses embedded within which are
Conclusion
The criminalization of debt is a concept in need of immediate reform the first, and most
important of which being the abolishment of debtor prisons, and for profit debt collection
agencies. These inhumane institutions bear no place in our modern society instead there exists a
necessity for alternative thinking which would provide enlightened solutions to an idea of the
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dark ages. These solutions arent meant to prove bias towards the debtor at the expense of the
creditor. Rather they are designed to protect the fundamental rights of all parties involved while
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