Illinois' new Debtors' Rights Act of 2012 ensures that debt collectors and lenders cannot send people facing consumer and civil debts to jail for payments they cannot afford. People across the country facing criminal justice debt need such protections, too.
This Act is a promising model for protecting low-income people from debtors' prison in the criminal context as well.
Illinois Attorney General Lisa Madigan launched an investigation earlier this year that found collection agencies in her state were using coercive tactics to force people to pay debts they couldn't afford. Agencies filed lawsuits against debtors but did not serve them with notice of court dates. When defendants did not show up, the courts issued arrest warrants leading to jail time.
Robin Sanders wound up incarcerated for four days because she owed a collection agency money for a medical bill. Her bail was set at the amount she owed, which she obviously couldn't pay in the first place.
Backhanded court proceedings and the intentional failure to provide service, also known as "sewer service," are not confined to the world of private civil debt collection. Cash-strapped state and local governments are increasingly using these methods to squeeze debts out of low-income criminal defendants.
Earlier this month in Alabama, state Judge Hub Harrington issued a scathing rebuke to court officials and the private prison company operating the local Harpersville jail for using the detention center as a debtors' prison. Judicial Correction Services, the private company, imposed a $35 fee on for each day an individual did not make payments towards debts associated with his or her conviction.
Those unable to keep up with the mounting debts were sent to prison by the courts for "probation violations." Judge Harrington called the practice "a judicially sanctioned extortion racket."
"Most distressing," he added, "is that these abuses have been perpetrated by what is supposed to be a court of law. Disgraceful."
States governments and courts have been levying new and increased fees and fines on criminal defendants in an effort to close their budget gaps. But when people can't afford to pay, states pay the price of punishing them and people are pushed even further into poverty.
For example, Ricardo Graham was incarcerated in Rhode Island for 40 days because of court debt he could not pay. He was held for a bail of $745. Because of his imprisonment he lost his job. Graham's unnecessary incarceration cost the state of Rhode Island $4,000. (For more background on the financial and social costs of criminal justice debt, see this publication.)
Last year, Philadelphia courts launched a sweeping effort to collect criminal justice debt from an estimated 320,000 people—approximately one in five residents – for debts dating as far back as the 1970s. Many debts the city cannot substantiate with records. Courts have sent notice letters to decades-old addresses, and tacked on significant added collection fees when no one responds. In addition, due to mistaken identities, individuals have been charged with other people's debt. Advocates have likened the corrupt process to the robo-signing of mortgages.
Punitive and overzealous collection practices have trapped low-income communities in cycles of debt, and increased the incarcerated population.
States should not be trying to balance their budgets on the backs of the poor. States should follow the model of Illinois' Debtors' Rights Act, and ensure that courts have adequate documentation of debts; conduct fair and consistent determinations of people's ability to pay; and eliminate abusive "pay or appear" policies.
They should also restrict the types of fees that private prison and probation companies can charge on defendants.
As Madigan recognized, "it is outrageous to think in this day and age that creditors are manipulating the courts, even threatening jail time, to extract whatever they could from people who could least afford to pay."
It is also outrageous that local governments and courts are guilty of these very same practices.
Judges and court administrators need legislative oversight, and people involved in the criminal justice system need protection from the rise of new debtors' prisons. Instead of levying fees and fines to fill budget gaps, states should rethink the rationality of incarcerating so many people in the first place.
Roopal Patel is the Katz Fellow and Counsel, and Meghna Philip is a Research Associate in the Justice Program of the Brennan Center for Justice at New York University School of Law. They recently co-authored Criminal Justice Debt: A Toolkit for Action. Reader comments are welcomed.