Since the 1990s, and increasingly in the wake of the Great Recession, many municipalities, forced to operate under tight budgetary constraints, have turned to the criminal justice system as an untapped revenue stream.1 Raising the specter of the “debtors’ prisons” once prevalent in the United States,2 imprisonment for failure to pay debts owed to the state has provoked growing concern in recent years.3 These monetary obligations are not contractual liabilities in the ledger of an Ebenezer Scrooge,4 but sums that the state itself assesses through the criminal justice system. Sometimes called “legal financial obligations” (LFOs), the total debt generally includes a mix of fines, fees, court costs, and interest.5 And unlike civil collection actions (for the most part6), incarceration is very much on the menu of sanctions that the unpaid creditor, usually a municipality,7 can impose.
This practice both aggravates known racial and socioeconomic in-equalities in the criminal justice system8 and raises additional concerns. First, assessing and collecting such debt may not be justifiable on penal grounds. Instead, it seems to be driven primarily by the need to raise revenue, an illegitimate state interest for punishment, and one that, in practice, functions as a regressive tax.9 Second, imprisonment for criminal justice debts has a distinctive and direct financial impact. The threat of imprisonment may create a hostage effect, causing debtors to hand over money from disability and welfare checks, or inducing family members and friends — who aren’t legally responsible for the debt — to scrape together the money.10
Take the story of Harriet Cleveland as a window into the problem: Cleveland, a forty-nine-year-old mother of three from Montgomery, Alabama, worked at a day care center.11 Starting in 2008, Cleveland received several traffic tickets at a police roadblock in her Montgomery neighborhood for operating her vehicle without the appropriate insurance.12 After her license was suspended due to her nonpayment of the ensuing fines and court costs, she continued to drive to work and her child’s school, incurring more debt to Montgomery for driving without a license.13 Over the course of several years, including after she was laid off from her job, Cleveland attempted to “chip[] away” at her debt — while collection fees and other surcharges ballooned it up behind her back.14 On August 20, 2013, Cleveland was arrested at her home while babysitting her two-year-old grandson.15 The next day, a municipal judge ordered her to pay $1554 or spend thirty-one days in jail.16 She had no choice but to “sit out” her debt at the rate of $50 per day.17 In jail, “[s]he slept on the floor, using old blankets to block the sewage from a leaking toilet.”18
Stories like Cleveland’s have inspired a naissance of advocacy and scholarship that challenge the legal basis for incarceration upon nonpayment of criminal justice debts.19 But existing approaches have failed to recognize an alternate potential font of authority: state bans on debtors’ prisons.20 Most commentators have thus far focused on the 1983 Supreme Court case Bearden v. Georgia.21 Bearden held that a court cannot, consistently with the Fourteenth Amendment, revoke parole for failure to pay criminal debt when the debtor has made “sufficient bona fide” efforts to pay.22 Bearden established a powerful (albeit somewhat vague) standard that protects debtors whose inability to pay isn’t willful, by requiring courts to hold ability-to-pay hearings.23 But, as argued below, certain types of criminal justice debtors fall under an even higher degree of protection than Bearden provides.
Another type of legal claim should be considered alongside Bearden: one based on the many state constitutional bans on debtors’ prisons.24 These state bans were enacted over several decades in the first half of the nineteenth century, as a backlash against imprisonment for commercial debt swept the nation. While the contemporary discussion on criminal justice debt often makes cursory reference to this historic abolition of debtors’ prisons,25 the legal literature contains no sustained analysis of whether the state bans on debtors’ prisons might invalidate some of what’s going on today.
This Note takes a first pass at this missing constitutional argument. Part I describes the contemporary problem with criminal justice debt in greater detail. Part II covers a range of preexisting federal constitutional limitations on imprisonment for criminal justice debt. Part III introduces the state bans and argues that they should be held to apply to some fines for regulatory offenses, costs, and definitionally civil debts — both as a matter of sound interpretation of state law and as a matter of federal equal protection doctrine. Leaving traditional fines and restitution outside the scope of the state bans, this proposal would nonetheless engage with the most problematic types of criminal justice debt. Part IV explains why it makes good sense to subject the new debtors’ prisons to the two-tiered regulation of both Bearden and these state bans, in the form of new imprisonment-for-debt claims.
I. Criminal Justice Debt
Since a large portion of criminal justice debt is routed through municipal courts that aren’t courts of record,26 systemic, nationwide data aren’t easily generated. But out of the mix of disturbing narratives and reports one can distill several common elements. Underlying the debts is a range of crimes, violations, and infractions, including shoplifting, domestic violence, prostitution, and traffic violations.27 The monetary obligations come under a mix of labels, including fines, fees, costs, and interest, and are generally imposed either at sentencing or as a condition of parole.28 Arrest warrants are sometimes issued when debtors fail to appear in court to account for their debts, but courts often fail to give debtors notice of summons, and many debtors avoid the courts out of fear of imprisonment.29 When courts have actually held the ability-to-pay hearings required by Bearden30 — and they’ve often neglected to do so31 — such hearings have been extremely short, as many misdemeanor cases are disposed of in a matter of minutes.32 Debtors are almost never provided with legal counsel.33 The total amount due fluctuates with payments and added fees, sometimes wildly, and debtors are often unaware at any given point of the amount they need to pay to avoid incarceration or to be released from jail.34 Multiple municipalities have allowed debtors to pay down their debts by laboring as janitors or on a penal farm.35 One Alabama judge credited debtors $100 for giving blood.36
The problem is widespread. In Colorado, Linda Roberts’s 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 couldn’t 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
And the problem is deeply engrained, at least in some places. The best evidence to date is the Department of Justice’s 2015 report on the Ferguson Police Department. The investigation revealed that Ferguson law enforcement — including both police and the municipal court — was deployed to raise revenue.43 In March 2010, the city’s finance director emailed then–Police Chief Thomas Jackson:
[U]nless ticket writing ramps up significantly before the end of the year, it will be hard to significantly raise collections next year. What are your thoughts? Given that we are looking at a substantial sales tax shortfall, it’s 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
Facing this pressure from advocates and litigants, cities, courts, and legislatures have made some changes. The city of Montgomery settled in 2014, agreeing to conduct the constitutionally required hearings, produce audio recordings,55 provide public defenders, and adopt a “presumption of indigence” for defendants at or below 125% of the federal poverty level.56 In Ohio, Chief Justice Maureen O’Connor took rapid action, issuing guidance materials to clarify the procedures trial and municipal judges should take before imprisoning debtors for failure to pay.57 The Supreme Court of Washington confirmed in March 2015 that the sentencing judge must make “an individualized inquiry into the defendant’s current and future ability to pay before the court imposes [criminal justice debt].”58 And in August 2015, Ferguson Municipal Judge Donald McCullin withdrew almost 10,000 arrest warrants issued before 2015.59 As for legislatures, in 2014, the Colorado General Assembly almost unanimously passed a bill requiring courts to make ability-to-pay determinations on the record before imprisoning debtors for nonpayment of debt.60 And in 2015, both the Georgia61 and Missouri62 legislatures passed laws addressing the issue.
Perhaps this pushback will resolve the concerns described above. But there are many reasons to think there’s a long road ahead. First, some of the responses leave unresolved the substantive definition of indigence for the purposes of ability-to-pay hearings.63 Without such a definition, discretion is left to the same courts that have been imprisoning criminal debtors thus far.64 Second, even tightly written laws,65 settlements, and resolutions need to be enforced, which requires accountability and monitoring.66 Abolishing the new debtors’ prisons is as much a test of moral and societal conviction as it is of sound drafting. And finally (of course) some states haven’t taken much action, if any, to address the issue — nor has it been raised in the federal courts within the last decade, apart from the litigation previously discussed.
II. Federal Constitutional Limitations
Legal commentators have long recognized that the federal constitution imposes limits on imprisonment for criminal justice debt under the Equal Protection and Due Process Clauses. This Part outlines those limits, which stem from two main lines of cases in the 1970s and early 1980s, and undergird almost all debt-imprisonment litigation today.
The first line of cases prohibits states from discriminating on the basis of indigence when contemplating imprisonment for nonpayment of criminal justice debt. In Williams v. Illinois,67 the defendant’s failure to pay a fine and costs would have resulted in a term of imprisonment beyond the statutory maximum.68 And in Tate v. Short,69 the defendant’s failure to pay would have resulted in imprisonment when the statute didn’t allow for imprisonment at all.70 The Court struck down imprisonment in each case.71 The third and most discussed case in the trilogy, Bearden v. Georgia, struck down the automatic revocation of parole for nonpayment of criminal justice debt.72 Bearden established a “bona fide efforts” test that asks how seriously one has tried to secure employment and credit, in addition to measuring assets.73 The Bearden line of cases thus endeavors to shield criminal justice debtors making a good faith effort to pay, while leaving willful nonpayment unprotected.74
The second line of cases limits states’ ability to treat civil debtors differently based on the procedural origins of their debt. The Court identified some of those limits in a pair of equal protection cases in the 1970s: James v. Strange75 and Fuller v. Oregon.76
The debtor in James v. Strange owed $500 to pay for a court-appointed attorney and challenged the Kansas recoupment statute under which the state had attempted to recover the money.77 The Court struck down the recoupment statute because it failed to provide “any of the exemptions provided by [the Kansas Code of Civil Procedure] . . . 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 Kansas’s 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 . . . that a State may impose unduly harsh or discriminatory terms merely because the obligation is to the public treasury rather than to a private creditor.”82 The Court suggested that it was applying rational basis scrutiny, although in light of the Court’s strong language some judges have read James as subjecting the classification to some form of heightened scrutiny.83
Similarly, the debtor in Fuller v. Oregon owed fees for an attorney and an investigator.84 But in Fuller, the Court upheld Oregon’s recoupment statute because the defendant wouldn’t be forced to pay unless he was able.85 The majority found that the recoupment statute provided all of the same protections as those provided to other judgment debtors, and was therefore “wholly free of the kind of discrimination that was held in James v. Strange to violate the Equal Protection Clause.”86 Justice Marshall, joined by Justice Brennan in dissent, cited the Oregon constitutional ban on imprisonment for debt and pointed out that indigent defendants could be imprisoned for failing to pay their court-appointed lawyers, while “well-heeled defendants” who had stiffed their hired counsel could not.87 The majority opinion pointed out that this issue hadn’t been preserved for appeal,88 and opined in dicta that the state ban on imprisonment for debt was an issue for state courts to decide.89 Justice Douglas, concurring in the judgment, agreed, but noted the “apparent inconsistency between [the relevant state constitutional provision] and the recoupment statute.”90
Thus, under James and Fuller, states cannot discriminate invidiously against at least some classes of criminal justice debtors (note that neither case involved fines) merely by virtue of the fact that the debts arise from a criminal proceeding.
The federal protections under the Bearden and James lines of cases are important tools for ensuring our criminal justice system doesn’t imprison for poverty. But, as argued below, the state bans on debtors’ prisons can supplement Bearden — and they may well be relevant to the inquiry under James.
III. State Constitutional Limitations
As noted above, the state bans on debtors’ prisons have been given short shrift in the legal literature and recent litigation.91 This Part begins by providing a brief historical overview of the state bans92 and then argues that ignoring them is a legal mistake: these imprisonment-for-debt provisions plausibly extend to some parts of contemporary debtors’ prisons.
The problems posed by nineteenth-century debtors’ prisons in the United States differ in many ways from the challenges posed today by criminal justice debt. Most importantly for present purposes, the debts at issue historically were contractual, not criminal. Imprisonment for nonpayment of contractual debt was a normal feature of American commercial life from the colonial era into the beginning of the nineteenth century.93 But with the rise of credit testing and the replacement of personal lending networks with secured credit, imprisonment for nonpayment came to be seen as a harsh and unwieldy sanction,94 and a growing movement pressed for its abolition.
Eventually, the movement against imprisonment for debt would produce forty-one state constitutional provisions.95 Some of the provisions read as flat bans;96 others have various carve-outs and exceptions in the text.97 But subsequent case law narrows the practical differences among them by reading into the flat bans largely the same carve-outs.98 The nine states that haven’t constitutionalized a ban on imprisonment for debt — Connecticut, Delaware, Louisiana, Maine, Massachusetts, New Hampshire, New York, Virginia, and West Virginia — all have taken statutory action.99 Some statutes look on the surface a lot like the constitutional bans.100 Practically, some explicitly abolished the old writ of capias ad satisfaciendum (holding the body of the debtor in satisfaction of the debt),101 and others reinvigorated procedural protections for debtors who genuinely couldn’t pay.102
Of course, these bans don’t straightforwardly apply to criminal justice debt. As the literature has long recognized, the “abolition” of debtors’ prisons was tightly constrained in scope.103 The doctrinal limits on the bans’ coverage cabined them along two dimensions: First, debtors evading payment were sculpted out from the bans. For instance, a number of constitutional provisions contained (or had read in) an exception for fraud.104 The fraud exception has been interpreted to cover cases of concealed assets or fraudulent contracting.105 In some cases, even leaving the state would count as fraud.106 And if a court ordered a party to turn over specific assets, that party’s refusal to comply would give rise to the jailable offense of civil contempt of court without offending the constitutional bans.107 Second, courts have held a long list of monetary obligations not to count as “debts.” Some constitutional provisions limited the ban to debts arising out of contract, as opposed to tort or crime.108 In these places, failure to pay child support or alimony could give rise to arrest and incarceration.109 So too with criminal costs and fines.110 Thus, in most states today one can be imprisoned for failure to pay noncommercial debts, including debts stemming from tort,111 crime,112 taxes and licensing fees,113 child support,114 and alimony.115
Many kinds of monetary obligations, then, have been held to fall outside the scope of the state bans. But once a monetary obligation qualifies as a “debt,” states have implemented the bans’ protections in one of two ways: First, some states have held that their bans on imprisonment for debt remove the courts’ ability to issue contempt orders for nonpayment of qualifying debts.116 This is the “no-hearing rule.” The judgment creditor may pursue execution proceedings, attempting to attach nonexempt property, say, or garnish wages. But the court will not issue a civil contempt order to coerce the debtor into paying. Second, even in states that allow contempt proceedings, most courts require a sharply limited (and debtor-favorable) inquiry. Courts emphasize that the contempt lies in failing to comply with an injunction to turn over specific property that is currently under the debtor’s control.117 And that specific property must also be nonexempt under the state’s exemption laws.118 An injunction as a general rule is a “drastic and extraordinary remedy.”119 Accordingly, some states require that creditors attempt execution through in rem actions before resorting to in personam actions.120 Herein lies the attractiveness of the state bans to the civil debtor — the protections offered to a qualifying debtor, as a general rule, far exceed those offered to the criminal debtor.
The doctrinal carve-outs for crime suggest that the state bans wouldn’t apply to criminal justice debt. Nevertheless, three specific kinds of criminal monetary obligations might actually be covered by the bans: fines for regulatory offenses, costs, and definitionally civil debts. This section advances arguments from text, purpose, and original meaning, which in many cases converge on this result.
First, infractions known as “regulatory offenses,” also known as “public welfare offenses.” The most relevant example is traffic violations, which have played a major role in Ferguson and elsewhere. How to define the category? Although at common law, scienter requirements were generally necessary to a criminal charge (hence the regular practice of courts reading them into statutes),121 the development of criminal law for regulatory purposes during industrialization made it increasingly desirable to impose strict liability in a number of situations. But some strict liability crimes, like statutory rape, are more easily analogized to traditional crimes despite the absence of a mens rea. A “regulatory offense” might be better defined, then, as a strict liability offense where the statute authorizes only a reasonable fine (and not a more penal-minded sanction, such as imprisonment).122 In some states, offenses meeting this latter definition aren’t even defined as “crimes.”123 An altogether different type of definition would look instead to the historical origin of the offense.124
Interpreting fines for regulatory offenses to fall under the bans of many states is consistent with the bans’ text, purpose, and original meaning. Starting with the text, twenty-two state bans refer to “debt” or “debtor” without drawing further distinctions between different kinds of debts,125 and there’s no textual reason why such words should exclude monetary obligations triggered by statutorily regulated conduct and owed to the state.126 Indeed, the presence of such qualifying language in the other bans127 strongly suggests that the words “debt” and “debtor” weren’t inherently limited to commercial life as a matter of the original meaning of the text — just as they aren’t today.
But the carve-outs for crime? To be fair, provisions limiting the ban to debts arising out of contract (four states)128 or stemming from civil cases (seven states)129 would seem to leave regulatory offenses uncovered. But other carve-outs for crime130 aren’t so clean-cut, as their purpose likely had nothing to do with regulatory offenses. 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. The abolition movement certainly did not intend to exclude such debts from the ban; whether legislatures meant to include them depends upon how sparing one’s assumptions about past intent are.
Many state courts could therefore plausibly hold today that fines for regulatory offenses constitute civil “debt” under their state constitutional bans. While such holdings might raise a stare decisis issue in many instances, the risk of deprivations of liberty is high, and the world of criminal justice has changed so dramatically,139 that revisiting precedent might be jurisprudentially sound. As the Ohio Supreme Court put it: “In today’s society, no one, in good conscience, can contend that a nine-dollar fine for crashing a stop sign is deserving of three days in jail if one is unable to pay.”140
Second, costs. Despite arising out of a criminal proceeding, costs are cleanly distinguishable from fines, restitution, and forfeiture in their basic purpose: compensating for or subsidizing the government’s marginal expenditures on criminal proceedings. But of course, funding the government is not one of the traditional purposes of penal law.
Because the purpose of costs is not purely or even mostly to punish, they are arguably debts within the text of the state bans. As one might guess, the states have split on whether costs fall within the scope of the bans. The majority rule, often tersely stated, is that they don’t.141 But at least one court has held otherwise. In Strattman v. Studt,142 the defendant was sentenced to the statutory maximum of six months, a fine of $500, and costs.143 After having served his time, and when he couldn’t pay his debt, he was imprisoned to sit out his debt at $3 per day.144 The Ohio Supreme Court held that costs are imposed “for the purpose of lightening the burden on taxpayers financing the court system,” not for a “punitive, retributive, or rehabilitative purpose, as are fines.”145 Observing that costs arose out of an “implied contract” with the court, Strattman held that “[a] judgment for costs in a criminal case is a civil, not a criminal, obligation, and may be collected only by the methods provided for the collection of civil judgments.”146 Future state supreme courts confronting the issue should embrace Strattman’s logic and ban cost-related imprisonment.
Indeed, federal constitutional law may compel an answer on this point. Costs trigger the precedents, discussed above, of James and Fuller.147 Many state bans on imprisonment for debt provide equally (or more) unequivocal protections to the civil debtor than the exemption statutes in James did; a strong logic therefore suggests that the Court could more widely enforce James’s prohibition on jailing defendants for failing to pay court costs. Additionally, interpreting the James and Fuller Courts as applying some degree of heightened scrutiny,148 the disparate application of the imprisonment-for-debt bans is an even better indicator of “invidious discrimination”149 than the disparate applications of the Kansas and Oregon exemption statutes. Despite the Court’s reluctance to rule on an issue not properly briefed, federal courts might return to the issue and confirm that states must apply their bans on imprisonment for debt to costs (and other quasi-civil debts) in a criminal case.150 In fact, the lawsuits against Ferguson and Jennings hinted at this argument,151 although neither complaint cited the Missouri Constitution. When dealing with costs, the states may adopt the reasoning of Strattman in their interpretations of state law, or the Fourteenth Amendment, under James and Fuller, may itself demand that reasoning.
Finally, violations of monetary obligations that are statutorily defined as civil. For both regulatory offenses and costs, a reviewing court must assess and characterize the debt as civil or quasi-civil for the purposes of coverage under the state ban. But sometimes, the relevant statute explicitly tags the criminal justice debt as civil or as receiving civil protections.152
For example, in some jurisdictions, courts have held that violations of municipal ordinances constitute civil actions.153 In Kansas City v. Stricklin,154 for example, the Supreme Court of Missouri noted that these proceedings “are not prosecutions for crime in a constitutional sense.”155 Case law in a number of states supports this approach,156 although a fifty-state survey cannot be conducted here. As much of the furor regarding contemporary debtors’ prisons revolves around municipalities, this is no minor point. Similarly, some collections statutes explicitly redefine certain debts as civil for the purposes of collection. The debt in James had this characteristic, as the underlying statute specified that the “total amount . . . shall become a judgment in the same manner and to the same extent as any other judgment under the code of civil procedure.”157 In Florida, convicted indigents assessed costs for due process services are expressly provided with the same protections as civil-judgment debtors.158 But not all collections statutes are so explicit, of course.159
IV. The Added Value of the State Law Approach
If courts begin to recognize claims under the state bans on debtors’ prisons, imprisonment for some criminal debts would become subject to both federal and state restrictions. This Part lays out how the state law protections would differ from the federal protections, and why having multiple levels of protection makes sense.
To start, state debtor protections would not merely duplicate the federal ones. In fact, under the state law protections, criminal justice debtors would face a much friendlier inquiry than they would under Bearden’s freestanding equal protection jurisprudence.160 This is true under either of the two rules detailed above. Instead of a test that asks whether the debtor has sought employment or credit per Bearden, in some states there would be a limited inquiry into whether the debtor possessed specific, nonexempt property that the debtor could be ordered to turn over. And many debtors currently caught in the cogs of the criminal justice system would have no such property. In other states, the court simply could not imprison for failure to pay the debt, although it could pursue other execution remedies available at law.
Why have two tests? Regulating criminal justice debt through both Bearden claims and imprisonment-for-debt claims makes a lot of sense. On this understanding of the law, debtor protections co-vary quite straightforwardly with the state’s interest in collecting.
The baseline principle, of course, is that a court may consider a defendant’s financial resources to inform its decision whether to impose jail time, fines, or other sanctions.161 Without this discretion, courts might impose prison terms unnecessarily, to avoid the risk of assessing a fine on a judgment-proof defendant. And the Court has made clear this discretion is central to the core penal goals of deterrence, incapacitation, and retribution.162 Against that baseline, the tradition of Bearden simply mandates that once a sentencing court has imposed a monetary obligation, it may not convert that obligation into imprisonment for failure to pay absent a special finding, a basic threshold that ensures the defendant isn’t invidiously punished for being poor.
Imprisonment-for-debt claims would impose a heightened requirement on financial obligations that, unlike traditional fines and restitution, really further noncriminal goals — despite being imposed from within the criminal system. 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. Indeed, costs function more as fees for service or taxes than as punishments. More problematically, these monetary obligations, unlike most taxes, are not indexed to wealth, income, or any other proxy for ability to pay. They therefore impose the burden of funding the government on those individuals and communities least equipped to bear the weight. Conceptually, then, imprisonment-for-debt claims would regulate the new debtors’ prisons along a fundamentally distinct dimension and should join Bearden claims as a way to challenge unconstitutional imprisonment.
Now, the imprisonment-for-debt claims wouldn’t challenge the propriety of assessing such charges in the first place. The proper textual and analytical hook for that question is the Excessive Fines Clause.163 They would, however, challenge a state’s use of collection methods unavailable to civil creditors. Where a state has chosen to ban debtors’ prisons, it shouldn’t be able to welcome them back in surreptitiously, by grafting them onto the criminal system.164
So far, the vast majority of academic commentators, litigators, legislatures, and other legal actors have focused on the federal protections extended under Bearden and its predecessors.165 Bearden represents a powerful tool for change, yet state law bans on debtors’ prisons could provide even greater protections for certain criminal justice debtors where the state’s interest in collecting isn’t penal. Bearden and imprisonment-for-debt claims could operate side-by-side in a manner that’s both administrable and functionally appealing.
The new American debtors’ prisons seem problematic along multiple dimensions. But aside from clear policy concerns, they may violate constitutional laws at both the federal and state levels. Some of these laws — the state bans on debtors’ prisons — were enacted over a hundred years ago, but can and should be invoked today.166 The task of operationalizing these bans for a new social evil rests in the hands of litigators and courts. But the spirit behind them ought to drive other constitutional actors — executives, legislators, and citizens — to take swift action.167