The United States abolished imprisonment for debt at the federal level in 1833, with most states following suit through the 1840s.Charles Jordan Tabb, “The History of the Bankruptcy Laws in the United States,” American Bankruptcy Institute Law Review 3 (1995), 5-51, 16
But despite Supreme Court precedent in Bearden v. Georgia that prohibits incarceration based solely on poverty, many people today are in jail because they cannot afford to pay criminal justice fines or court fees, making debtors’ prisons a de facto part of American life.van Gelder, “Lots of People Go to Jail” 2018; and Bearden v. Georgia, 461 U.S. 660 (1983). Also see Mathilde Laisne, Jon Wool, and Christian Henrichson, Past Due: Examining the Costs and Consequences of Charging for Justice in New Orleans (New York: Vera Institute of Justice, 2017).
These debtors’ prisons are driven by the increased imposition and collection of fines and fees, which can be an exponential added burden to a criminal case. After court costs and probation fees are added, the real price of a $250 drug possession fine this past year in Tennessee was $2,231; and a DUI in Missouri, where the statutory fine is $500, actually costs $3,899.“US: Private Probation Harming the Poor,” Human Rights Watch, 2018. In fact, between paying for an ankle monitor, drug testing, classes for things like anger management or parenting, and supervision fees, the cost of probation is often significantly greater than the fines and fees authorized by statute. That extra money frequently goes directly to private probation companies, according to a 2018 report released by Human Rights Watch.Komala Ramachandra, “Set up to Fail” The Impact of Offender-Funded Private Probation on the Poor (New York: Human Rights Watch, 2018).
Criminal justice debt often results in incarceration for people who may never have been facing a jail sentence in the first place, or paves a road back to jail for others if they cannot keep up with their payments.van Gelder, “Lots of People Go to Jail,” 2018; and “US: Private Probation Harming the Poor,” Human Rights Watch, 2018. But some places are taking action. In May, San Francisco became the first jurisdiction to eliminate criminal justice fines and fees, including those for probation, electronic monitoring, and fees for being booked into jail.Ordinance No. 131-18, San Francisco, California; and Joanna Weiss and Lisa Foster, “San Francisco’s Justice System Gets A Little More Just,” Washington Post, June 13, 2018. “These fines, fees, and penalties can trap people in a cycle of debt, and low-income people and people of color are often hit the hardest,” the ordinance stated. “Under this system, government becomes a driver of inequality, creating additional layers of punishment for those moving through the criminal justice system.”Ordinance No. 131-18; and Weiss, “San Francisco’s Justice System,” 2018. Alameda County followed with a similar measure in November.Megan Cassidy, Gwendolyn Wu, and Ashley McBride, “The Scanner: Alameda County to Drop Criminal Justice Fees; the Problem with Pot DUIs,” San Francisco Chronicle, November 26, 2018.
But it’s not just people who fail to pay their court fees while on probation and parole who are landing in jail because of debt: the ACLU released a report in February detailing how collections procedures for the estimated 77 million Americans whose private debt has been turned over to collections agencies can end with arrest and incarceration.American Civil Liberties Union (ACLU), A Pound of Flesh: The Criminalization of Private Debt (New York: ACLU, 2018). Tens of thousands of warrants for the arrest of debtors who fail to appear in civil court are issued every year. The ACLU examined 1,000 of them, finding that in some cases the debt was as small as $28 and, in many instances, people did not even know that they had been sued.American Civil Liberties Union (ACLU), A Pound of Flesh: The Criminalization of Private Debt (New York: ACLU, 2018). Two of the debtors had missed hearings because they were terminally ill.American Civil Liberties Union (ACLU), A Pound of Flesh: The Criminalization of Private Debt (New York: ACLU, 2018).