Debtor's Prison

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A debtors' prison is a prison for people who are unable to pay debt. These prisons have been used since ancient times. Through the mid 19th century, debtors' prisons were a common way to deal with unpaid debt in Western Europe.[1] Though increasing access and lenience throughout the history of bankruptcy law have rendered debtors' prisons irrelevant over most of the world, as of May 2013, they persist in countries such as the United Arab Emirates, Hong Kong, and Greece.

Since the late 20th century, the term debtors' prison has sometimes come to be applied when a court sends someone to prison over criminal duties which would normally be imposed monetarily, but can not be paid. For example, in some jurisdictions within the United States, people can be held in contempt of court and jailed after non-payment of child support, garnishments, confiscations, fines, or back taxes. The charge for going to jail is being in contempt of court. The reason for the contempt of court charge is negligent non-payment, obstruction, or fraud.[2]

Additionally, though properly served civil duties over private debts in nations such as the United States will merely result in a default judgement being rendered in absentia if the defendant willfully declines to appear by law,[3] a substantial number of indigent debtors are legally incarcerated for failure to appear at civil debt proceedings.[4][5][6][7][8]

History

Ancient Mediterranean

Debt bondage was common in ancient Mediterranean societies, including Greek city-states. Economic crises in Athens around 600 BC had resulted in so many Athenians sold into slavery that Solon enacted the seisachtheia which banned the practice of debt bondage and returned Athenians to their land as free men, at least according to Solon's own claims.

Under the early Roman Republic, a person could pledge himself as a collateral for a loan, in a type of contract called Nexum. If he failed to pay, he was liable to become his creditor's slave. This practice was outlawed in 326 BC by the Lex Poetelia Papiria.

Medieval Europe

During Europe's Middle Ages, debtors, both men and women, were locked up together in a single large cell until their families paid their debt.[9] Debt prisoners often died of diseases contracted from other debt prisoners. Conditions included starvation and abuse from other prisoners. If the father of a family was imprisoned for debt, the family business often suffered while the mother and children fell into poverty. Unable to pay the debt, the father often remained in debtors' prison for many years. Some debt prisoners were released to become serfs or indentured servants (debt bondage) until they paid off their debt in labor.

By region

China

Hong Kong has long imprisoned debtors from its tradition as a British colony.[10][11] The first mainland prison sentence for unpaid debts was handed down in 2008. Life imprisonment is possible for non-repayment of debts incurred with "malicious intent".[12]

Germany

In the late Middle Ages, and at the beginning of the modern era, public law was codified in Germany. This served to standardize the coercive arrest (Pressionshaft), and got rid of the many arbitrary sanctions that were not universal.[13] In some areas (like Nürnberg) the debtor could sell or redistribute their debt.

In most of the cities, the towers and city fortifications functioned as jails. For certain sanctions there were designated prisons, hence some towers being called debtors prison (Schuldturm). The term Schuldturm, outside of the Saxon constitution, became the catchword for public law debtor’s prison.


In the early modern era, the debtor’s detainment or citizen’s arrest remained valid in Germany. Sometimes it was used as a tool to compel payment, other times it was used to secure the arrest of an individual and ensure a trial against them in order to garnish wages, replevin or a form of trover. This practice was particularly disgraceful to a person’s identity, but had different rules than criminal trials. It was more similar to the modern enforcement of sentences (Strafvollzug) e.g. the debtor would be able to work off their debt for a certain amount of days, gradated by how much they owed.

The North German Confederation eliminated debtors' prisons on May 29, 1868.

Great Britain

In the Kingdom of Great Britain and the later United Kingdom, debtors' prisons varied in the amount of freedom they allowed the debtor. With a little money, a debtor could pay for some freedoms; some prisons allowed inmates to conduct business and to receive visitors; others (including the Fleet and King's Bench Prisons) even allowed inmates to live a short distance outside the prison — a practice known as the 'Liberty of the Rules' — and the Fleet even tolerated clandestine 'Fleet Marriages'.

Life in these prisons, however, was far from pleasant, and the inmates were forced to pay for their keep. Samuel Byrom, son of the writer and poet John Byrom, was imprisoned for debt in the Fleet in 1725, and in 1729 he sent a petition to his old school friend, the Duke of Dorset, in which he raged against the injustices of the system. Some debtor prisoners were even less fortunate, being sent to prisons with a mixture of vicious criminals and petty criminals, and many more were confined to a single cell.

The father of the English author Charles Dickens was sent to one of these prisons (the Marshalsea), which were often described in Dickens's novels.[14]

The Debtors' Act of 1869 abolished imprisonment for debt, although debtors who had the means to pay their debt, but did not do so, could still be incarcerated for up to six weeks.

Some of London's debtors' prisons are the Coldbath Fields Prison, Fleet Prison, Giltspur Street Compter, King's Bench Prison, Marshalsea Prison, Poultry Compter, and Wood Street Counter.

The most famous being the Clink prison, which had a debtor's entrance in Stoney Street. This prison gave rise to the British slang term for being incarcerated in any prison, hence "in the clink". It's location also gave rise to the term for being financially embarrassed, "stoney broke".

Greece

Ιmprisonment for debts, whether to the tax office or to private banks, was still practiced until January 2008, when the law changed after imprisonment for unpaid taxes, as well as other debts to the government or to the social security office, was declared unconstitutional after having been practiced for 173 years; imprisonment was, however, still retained for debts to private banks. The situation regarding imprisonment (προσωποκράτηση (prosōpokrάtēsē): custody) for debts to the government is still unclear, as courts continue to have this ability for criminal acts.[15]

United Arab Emirates

Debtors in the United Arab Emirates, including Dubai, are imprisoned for failing to pay their debts. This is a common practice in the country. Private banks are not sympathetic to the debtors once they are in prison so many just choose to leave the country where they can negotiate for settlements later. The practice of fleeing UAE to avoid arrest because of debt defaults is considered a viable option to customers who are unable to meet their obligations.[16][17]

United States of America

Early debtors' prisons (colonization - 1850)

Many Colonial American jurisdictions established debtors' prisons using the same models used in Great Britain. James Wilson, a signatory to the Declaration of Independence, spent some time in a debtors' prison while still serving as an Associate Justice of the U.S. Supreme Court.[18] Fellow signatory Robert Morris spent three years, from 1798 to 1801, in the Walnut Street Debtors' Prison, Washington D.C.,[19] often receiving visits from his good friend George Washington.[20] Henry Lee III, better known as Henry "Light-Horse" Lee, a Revolutionary War general and father of Robert E. Lee, was imprisoned for debt between 1808 and 1809[21] where he made use of his time by writing "Memoirs of the War".[22]

Debtors' prisons were prevalent throughout the United States up until the mid-1800s. Economic hardships following the War of 1812 with Great Britain helped swell prison populations with simple debtors. This resulted in significant attention being given to plights of the poor and most dependent jailed under the widespread practice, possibly for the first time.[23] Increasing disfavor over debtors' prisons along with the advent and early development of U.S. bankruptcy laws led states to begin restricting imprisonment for most civil debts.[24] At that time growing use of the poorhouse[25] and poor farm were also seen as institutional alternatives for debtors' prisons. The United States eliminated the imprisonment of debtors under federal law in 1833[26][27] leaving the practice of debtors' prisons to states.

Changes to state debtors' prisons
Kentucky 1821 - save where fraud was shown or suspected
Ohio 1828
Maryland 1830 - for debts under $30
New Jersey 1830
Vermont 1830
Massachusetts 1831 - exempted females for any amount and males with debts under $10
New York 1832 , Connecticut 1837 , Louisiana 1840 , Missouri 1845 , Alabama 1848 , Virginia 1849
Historic preservation
  • Accomac, Virginia - constructed 1782–1783, converted to a "gaol for debtors" in 1824, closed 1849[28]
  • Tappahannock, Virginia - constructed prior to 1769, converted to other uses 1849[29]
  • Worsham, Virginia - authorized 1786, constructed as a "gaol for debtors" 1787, closed sometime between 1820 and 1849[30]

Pre-modern debtors' prisons (1850 - 1969)

Changes in state laws, federal laws, regional social debates, major events, legislation affecting debtors' prisons and the institutions that replaced them.

Modern debtors' prisons (1970 - current)

While the United States no longer has brick and mortar debtors' prisons, or "gaols for debtors" of private debts, the term "debtor's prison" in modern times sometimes refers to the practice of imprisoning indigent debtors for matters related to a fee imposed in criminal judgments[31][8] with more than a third of U.S. states routinely flouting federal regulations against the imprisonment of debtors for inability to pay legal fines.[32][33] To what extent a debtor will actually be prosecuted varies from state to state.[4] This modern use of the term debtors' prison arguably has its start with precedent rulings in 1970, 1971 and 1983 by the U.S. Supreme Court,[5][34] and passage of the Bankruptcy Reform Act of 1978.

In 1970, the Court ruled in Williams v. Illinois that extending a maximum prison term because a person is too poor to pay fines or court costs violates the right to equal protection under the Fourteenth Amendment.[35] During 1971 in Tate v. Short, the Court found it unconstitutional to impose a fine as a sentence and then automatically convert it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.[36] And in the 1983 ruling for Bearden v. Georgia the Court ruled that the Fourteenth Amendment bars courts from revoking probation for a failure to pay a fine without first inquiring into a person’s ability to pay and considering whether there are adequate alternatives to imprisonment.[37]

A year long study released in 2010 of fifteen states with the highest prison populations[38] by the Brennan Center for Justice, found that all fifteen states sampled have jurisdictions that arrest people for failing to pay debt or appear at debt related hearings.[26] Aside from citizens being jailed without legal counsel[39][40] the study identified four causes that lead to debtors' prison type arrests for debts;

  • State laws that attempt to make criminal justice debt a condition of probation, parole, or other correctional supervision with failure to pay resulting in arrest and reimprisonment.[41][42]
  • State laws that consider imprisonment as a penalty for failure to pay criminal justice debt. These actions are considered a civil contempt of court charge, thus technically not in violation of state constitutions that prohibit debtors' prisons, but for the same reason those incarcerated must be released immediately if they either pay or prove themselves unable to do so.[43][44][45]
  • Citizens choosing jail time under state programs where imprisonment is a way of paying down court imposed debt.[6][46]
  • States that regularly arrest citizens for criminal justice debt prior to appearing at debt-related hearings, leading in many cases to multi-day jail terms pending an ability to pay hearing.[47][48]
Modern U.S. by State
State Modern Debtors' Prison
Alabama • Imprisons debtors as a penalty for failure to pay criminal justice debt.
• Allows imprisonment of debtors for child support debt, applies 12% interest
• A city government in Alabama that imprisoned debtors for fees resulting from the use of a private probation company was halted by Circuit Court Order as being a modern debtors' prison. (2012)[8][49]
Arizona • Imprisons debtors who are then typically required to submit financial documentation to the courts, to facilitate seizure of assets or wage garnishment.[50]
Arkansas • Imprisons debtors who are then typically required to submit financial documentation to the courts, to facilitate seizure of assets or wage garnishment.[7]
California P.C. § 1205[6] • Imprisons debtors who choose jail time under programs where imprisonment is a way of paying down court imposed debt.[6]
Colorado • Imprisons debtors as a penalty for failure to pay criminal justice debt.[51]
Florida • Allows imprisonment of debtors for child support debt as a contempt of court charge.[5]
Georgia • Imprisons debtors as a penalty for failure to pay criminal justice debt.[4]
• Imprisons debtors for criminal justice debt without legal counsel[52]
Illinois • Imprisons debtors who are then typically required to submit financial documentation to the courts, to facilitate seizure of assets or wage garnishment.[31]
Indiana • Allows imprisonment of debtors for child support debt

• Imprisons debtors who are then typically required to submit financial documentation to the courts, to facilitate seizure of assets or wage garnishment.[31]

Maryland H.B. 651[53] • Allows imprisonment of debtors for child support debt
• Stops payments and accrual of arrearages while a debtor is imprisoned and for a specified time after release for child support debt.[53]
Michigan • Allows imprisonment of debtors for child support debt
• Imprisons debtors as a penalty for failure to pay criminal justice debt.[4]
Minnesota Const art I § 12[54] • Imprisons debtors who are then typically required to submit financial documentation to the courts, to facilitate seizure of assets or wage garnishment.[7] Actually, debtors cannot be imprisoned merely for failing to pay their debts, but they can face sanctions by the court for failing to obey a court's order to show cause as to why they failed to reveal their financial situation to creditors.
Missouri Rev § 543.270[46] • Imprisons debtors who choose jail time under programs where imprisonment is a way of paying down court imposed debt.[46]
• Imprisons debtors for "failure to appear" as a contempt of court charge during discovery procedures to locate assets of the debtor.[55]
Oklahoma O.S. §,2.13 [41] • Allows imprisonment of debtors for child support debt
• Imprisons debtors who are then typically required to submit financial documentation to the courts, to facilitate seizure of assets or wage garnishment.[41]
Pennsylvania • Imprisons debtors for civil debt through an Order of Capias resulting from failure to appear for a deposition as part of discovery procedures to locate assets of the debtor.
• Allows imprisonment of debtors for child support debt as a contempt of court charge.[56]
Tennessee • Allows imprisonment of debtors for child support debt as a contempt of court charge.[57]
Washington Const art I § 17[58] • Imprisons citizens who are then typically required to submit financial documentation to the courts, to facilitate seizure of assets or wage garnishment.
• Allows imprisonment of debtors for child support debt as a contempt of court charge.
• Proposed legislation requiring companies to provide proof a debtor has been notified about lawsuits against them before a judge could issue an arrest warrant for civil debts. (2011)[33]

International Agreements

In 1976 Article 11 of the ICCPR – International Covenant on Civil and Political Rights – came into effect stating, “No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation.”

At present a comparable concept to debtors prison still exists in various forms in Germany:

  • A maximum 6 months of coercive arrest (Erzwingungshaft) is still available for a sworn affidavit for insurance of a debtor under §901 ZPO.
  • A maximum of 6 weeks coercive arrest for refusal of payment or fine.
  • As an alternative sentence.
  • As a personal arrest for the securing of a foreclosure or garnishment on wages.

See also

References

Literature

  • Karl Gratzer: Default and Imprisonment for Debt in Sweden, in: Karl Gratzer, Dieter Stiefel (Eds.): History of Insolvency and Bankruptcy from an International Perspective, Huddinge 2008, S. 16ff.

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