By Olivia C. Jerjian, ACLR Featured Online Contributor

A few weeks ago, John Oliver presented a twenty-minute segment on debtors’ prisons in the United States,1 highlighting the absurdity of their existence and their functioning through humor. One of the stories he shared was that of Harriet Cleveland, a grandmother in Montgomery, Alabama. The police fined Cleveland twice in 2008 because she could not afford to pay her car insurance, but she needed to drive to work.2 She was unable to pay the fines and court costs, which caused her to lose her license and, ultimately, her job at a daycare center.

The court sentenced Cleveland to probation and mandated her to pay monthly installments of $140 to Judicial Correction Services (“JCS”).3 Of that sum, forty dollars went directly to JCS as probation fees and did not count towards her fines. JCS regularly reminded Cleveland that she would be incarcerated if she did not keep up with her payments. Desperate, Cleveland even looked in trash cans to find aluminum cans she could sell to recyclers. Though Cleveland ended up paying JCS a grand total of $3,176 (of which $940 were probation fees), she still owed the court $2,714. She was unable to pay that sum and was sentenced to thirty one days in jail for failure to pay. She remained incarcerated for ten days before her attorneys at the Southern Poverty Law Center (“SPLC”) secured her release and filed a lawsuit on her behalf against Montgomery, which resulted in the city no longer using incarceration against people too poor to pay their traffic tickets and court-related costs.4

The recent lawsuits filed against the municipal governments of Ferguson and Jennings, Missouri, for jailing people who could not pay their fines no doubt sparked Oliver’s interest in the matter.5 The Department of Justice report states that Ferguson’s second largest sources of income came from fines and court fees.6 According to NPR, Ferguson issued nearly 33,000 arrest warrants in 2013 for unpaid traffic fines, even though it only has 21,000 inhabitants.7 Oftentimes, the poorest citizens are targeted and become trapped in a cycle of unending fines, accumulating fees, jail, and unemployment. Fourteen out of the fifteen states with the highest imprisonment rates use “poverty penalties,” such as additional late fees, payment plan fees, and interest when individuals cannot pay their fees instantly.8 For instance, Alabama charges a thirty percent collection fee and Florida allows private debt companies to add a forty percent surcharge to existing debts.9 Adding insult to injury is the fact that most of this money ends up in the pockets of private debt collector companies, such as JCS.10

Despite the illegality of debtors’ prisons de jure and constitutional protections, imprisonment for failure to pay is a common de facto phenomenon. The United States outlawed debtors’ prisons in 1833 through federal law when some states began jailing more debtors than criminals.11 However, this did not eradicate the practice, especially in the South, where states would often re-enslave African Americans who could not pay their debts by assigning them to hard labor.12 Since the 1970s, the Supreme Court has set constitutional limitations to imprisonment for inability to pay fines by holding that only imprisoning debtors who had the ability to pay but were unwilling to do so was constitutional. The Burger Court stated in Williams v. Illinois that extending a maximum prison term because a person could not afford to pay fines or court costs violated the Equal Protection clause of the Fourteenth Amendment.13 In Bearden v. Georgia—the most famous case regarding debtors’ prisons—the Court held that courts must first inquire into a person’s ability to pay and consider whether there are adequate alternatives to imprisonment before revoking probation for a failure to pay a fine.14 However, along with the rise of incarceration rates, more and more people found themselves placed behind bars for failure to pay their debts, whether accrued through credit cards and unpaid medical bills or through “criminal justice financial obligations,” such as traffic tickets, jail book-in fees, or public defender application fees.15

The difficulty lies in answering the following question: if debtors’ prisons are unconstitutional, why are people like Harriet Cleveland still being jailed for being too poor to pay their debts? One reason is that people are not being incarcerated for failure to pay per se, but rather for other violations. For example, failing to appear in court for a debt-related hearing can be cause to issue an arrest warrant.16 Missing a court-ordered payment can also trigger an arrest warrant, as can being held in contempt of court.17

Another explanation is the vague definition of the “willful” in Bearden.18 All the Supreme Court stated was that “[i]f the probationer [had] willfully refused to pay the fine or restitution when he [had] the resources to pay or [had] failed to make sufficient bona fide efforts to seek employment or borrow money to pay, the State [was] justified in using imprisonment as a sanction to enforce collection.”19 However, the Court neither specifically defined what “willful” meant, nor did they give any examples, leaving it open to judges’ differing subjective interpretations. For instance, NPR’s news investigation in Benton County, Washington, showed the wide-ranging inconsistencies in state judges’ decisions.20 Some judges considered that if a defendant has a phone service or smokes, that defendant is “willfully” refusing to pay, as that person could use the money towards paying their court debt instead.21 Other judges asked for defendants to obtain money from their family or use their public benefits and welfare checks, such as Social Security disability income, veterans’ benefits, and Temporary Aid to Needy Family checks (“TANF”) to pay back their court debts.22 One particularly striking example was that of Judge Robert Swisher, a Superior Court judge in Benton County, who told NPR he made judgments of defendants’ indigent statuses based on their appearance.23 If a defendant appeared in court with expensive-looking clothes or tattoos, Judge Swisher did not consider the defendant as indigent and believed that the latter “willfully” refused to pay court debts.24

Not only do debtors’ prisons criminalize poverty, they also perpetuate it. While being jailed for failing to pay a debt, individuals are likely to lose their employment. The delinquent debt also affects their credit scores, which, in turn, affects housing, future employment prospects, and access to public benefits. Poor credit scores create difficulties for people seeking housing, be it homeownership or rentals.25 Employers also use credit scores as part of background checks, creating yet another obstacle.26 When an indebted individual violates parole by failing to make a payment, that person can become ineligible for benefits such as TANF,27 Supplemental Security Income,28 Food Stamps,29 and low-income housing.30 These consequences to failing to pay debts prevent people from reintegrating into society and, instead, force them further into poverty. Moreover, debtors’ prisons also represent an unrewarding financial burden for taxpayers, as incarceration is an expensive means of punishment. Arrest warrants issued against debtors also detract law enforcement officers from focusing on public safety.

Legislators and courts should revise their practices so that individuals who are too poor to pay back their tickets and other fees, such as Harriet Cleveland, do not helplessly find themselves in jail. First, clarifying the “willful” standard would provide a more brightline and objective standard for courts to determine whether a defendant is indigent. Second, supplemental court fees and fines should not crush indigent defendants who cannot afford to pay their debts. Those individuals’ fines should be proportional to their income and to their ability to pay. Indigent defendants should also be afforded the option of fee waivers. Third, the failure to pay back a debt should not result in incarceration, but rather in more socially productive and humane consequences, such as community service. Until reforms such as these are implemented, filing lawsuits, as Harriet Cleveland and the plaintiffs in the Ferguson case did, is probably one of the most effective ways of implementing widespread change.