Debtors' Prison Makes a Comeback

Debtors' prisons were outlawed early in the nineteenth century because people realized that debtors couldn't work and pay back their debts (or support their families) if they were behind bars. However, debtors' prisons may be making a comeback in the early twenty-first century. Newsweek published a short article this week entitled "The Return of Debtors' Prisons in Louisiana," by Joel Schectman. Schectman concluded that

[W]hile poverty is no longer a crime, at least not officially, two new studies suggest that the practice of locking up debtors is becoming more common. In separate efforts, the American Civil Liberties Union and Brennan Center for Justice at New York University spent a year observing court cases and interviewing hundreds of defenders, prosecutors, and the accused. The results, copies of which were released early to Newsweek, show a troubling pattern of incarceration in at least 16 states, where even minor, nonviolent offenses such as speeding and loitering result in prison time for the poor.

This is because courts fine poor defendants, "triggering an endless cycle of legal jeopardy." New Orleans Municipal Court is "particularly hard-nosed," according to Schectman, and jails indigent defendants who miss court dates; of the group studied, two thirds spent sixty days in jail. The same ratio was observed in Charlotte, North Carolina, although the number of days spent in jail was much lower.

The debate over bankrupty is sometimes colored by issues of morality--should people be allowed to walk away from obligations they freely agreed to assume? In this case, however, the issue is not morality but economics. As state funding for courts has dried up in the last few years, states have turned to fees as a way to pay for running their court systems.

In a memo obtained by the ACLU, the Michigan courts administrator is brutally clear, reminding judges of "tough economic times" and urging a "culture shift" toward pay-or-prison collection tactics.

In New Orleans, fee collection underwrites 40 percent of the costs of the city courts, and Judge Paul Sens says he's not running a debtors' prison but initially gives every defendant the option of community service. Clearly, however, many people who come before Judge Sens are being sent to prison. To me, this approach seems counterintuitive. It is by no means cheap to incarcerate people. To save money, it would seem to make sense to keep people out of prison. Furthermore, as was recognized in the nineteenth-century, people can't make money while in jail, further exacerbating their poor financial situation.