A debtors' prison is a prison for people who are unable to pay debt. Through the mid 19th century, debtors' prisons (usually similar in form to locked workhouses) were a common way to deal with unpaid debt in places like Western Europe. Destitute persons who were unable to pay a court-ordered judgment would be incarcerated in these prisons until they had worked off their debt via labor or secured outside funds to pay the balance. The product of their labor went towards both the costs of their incarceration and their accrued debt. Increasing access and lenience throughout the history of bankruptcy law have made prison terms for unaggravated indigence illegal over most of the world.
Since the late 20th century, the term debtors' prison has also sometimes been applied by critics to criminal justice systems in which a court can sentence someone to prison over willfully unpaid criminal fees, usually following the order of a judge. For example, in some jurisdictions within the United States, people can be held in contempt of court and jailed after willful non-payment of child support, garnishments, confiscations, fines, or back taxes. Additionally, though properly served civil duties over private debts in nations such as the United States will merely result in a default judgment being rendered in absentia if the defendant willfully declines to appear by law, a substantial number of indigent debtors are legally incarcerated for the crime of failing to appear at civil debt proceedings as ordered by a judge. In this case, the crime is not indigence, but disobeying the judge's order to appear before the court. Critics argue that the "willful" terminology is subject to individual mens rea determination by a judge, rather than statute, and that since this presents the potential for judges to incarcerate legitimately indigent individuals, it amounts to a de facto "debtors' prison" system.
- 1 History
- 2 By region
- 2.1 Canada
- 2.2 Council of Europe
- 2.3 France
- 2.4 Germany
- 2.5 Great Britain (later the United Kingdom)
- 2.6 Greece
- 2.7 India
- 2.8 Malta
- 2.9 United Arab Emirates
- 2.10 United States of America
- 3 International agreements
- 4 See also
- 5 References
- 6 Literature
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. 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.
Council of Europe
Article 1 of Protocol 4 of the European Convention on Human Rights prohibits the imprisonment of people for breach of a contract. Turkey and the United Kingdom (due to concerns over British nationality law) have signed but never ratified Protocol 4. Greece and Switzerland have neither signed nor ratified this protocol.
France allows for contrainte par corps, now denominated contrainte judiciaire, for money owed to the State by non-insolvant debtors aged from 18 to 65; its length is limited following the amount of the debt and aims to pressure the debtor to pay his debts, consequently the owed money stays owed to the State.
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. 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, graduated by how much they owed.
The North German Confederation eliminated debtors' prisons on May 29, 1868.
At present a comparable concept to debtors' prison still exists in various forms in Germany:
- A maximum of 6 weeks coercive arrest for failure to pay fine (Bußgeld).
- A maximum of 6 months coercive arrest for failure to issue an oath of not being able to pay any kind of liability.
- As an alternative sentence, if a fine (Geldstrafe) is not paid, up to 6 months.
- As a personal arrest for the securing of a foreclosure or garnishment on wages.
- Failure to pay child support as ordered by court, which is a crime under the Penal Code.
Great Britain (later the United Kingdom)
In England during the eighteenth and nineteenth centuries, 10,000 people were imprisoned for debt each year. A prison term did not alleviate a person's debt, however; an inmate was typically required to repay the creditor in-full before being released. 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. He became an advocate for debt prison reform, and his novel Little Dorrit dealt directly with this issue.
The Debtors' Act of 1869 limited the ability of the courts to sentence debtors to prison, but it did not entirely prohibit them from doing so. Debtors who had the means to pay their debt, but did not do so, could still be incarcerated for up to six weeks, as could those who defaulted on debts to the court. Initially, there was a significant reduction in the number of debtors imprisoned following the passage of the 1869 Act. By 1870, the total number of debtors imprisoned decreased by almost 2,000, dropping from 9,759 in 1869 to 6,605 in 1870. However, by 1905 that number had increased to 11,427.
Some of London's debtors' prisons were the Coldbath Fields Prison, Fleet Prison, Giltspur Street Compter, King's Bench Prison, Marshalsea Prison, Poultry Compter, and Wood Street Counter. The most famous was 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". Its location also gave rise to the term for being financially embarrassed, "stoney broke".
Ιmprisonment for debts, whether to the tax office or to a private bank, 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.[clarification needed] 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.
The Negotiable Instruments Act, 1881, as amended, contains provisions for criminal penalties, including imprisionment, if someone defaults on a debt or a payment obligation.
Section 28A of the Securities and Exchange Board of India Act, 1992 (As amended by the Securities Laws(Amendment) Act, 2014) contains provisions for penalties, including imprisonment, for failure to pay back investors or the authorities.
In India, courts have been known to jail financial defaulters as a way to coerce them to pay back their victims or the government. For example, in the case of Subrata Roy, his bail was conditional on him paying back huge amounts to the investors or the regulators.
An eighteenth century debtors' prison is found within the Castellania in Valletta, Malta, now used as offices by the Ministry for Health. It remained in use as a prison until the nineteenth century. In line with the European Convention Act, no person is to be deprived of his liberty because of the incapability to fulfill a contractual obligation.
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. 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.
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. Fellow signatory Robert Morris spent three years, from 1798 to 1801, in the Prune Street Debtors' Prison, Philadelphia 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 where he made use of his time by writing "Memoirs of the War".
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. 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. At that time growing use of the poorhouse and poor farm were also seen as institutional alternatives for debtors' prisons. The United States ostensibly eliminated the imprisonment of debtors under federal law in 1833 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
- Accomac, Virginia – constructed 1782–1783, converted to a "gaol [jail] for debtors" in 1824, closed 1849
- Tappahannock, Virginia – constructed prior to 1769, converted to other uses 1849
- Worsham, Virginia – authorized 1786, constructed as a "goal [jail] for debtors" 1787, closed sometime between 1820 and 1849
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 criminal defendants for matters related to either a fine or a fee imposed in criminal judgments. To what extent a debtor will actually be prosecuted varies from state to state. 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, 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. 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." 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.
A year-long study released in 2010 of fifteen states with the highest prison populations 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. 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.
- 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.
- Citizens choosing jail time under state programs where imprisonment is a way of paying down court imposed debt.
- 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.
- The routine jailing of persons who owe civil debt when such debts are related to child support arrears. Imprisonment for such debt is legally justified by the legal fiction that the incarceration is not for the debt, but rather for not obeying a court order to pay the debt.
In an article in The American Conservative, Michael Shindler argues that another factor responsible for debtors' prison type arrests is that "Whereas indigent defendants have a Sixth Amendment right to a court-appointed lawyer in criminal cases involving incarceration, indigent debtors in state and local courts have no one to defend them against the error and abuse that characterizes debt collection litigation." Similarly, Shindler writes, regarding explicitly illegal debtors' prison type arrests ordered by local judges,"the reason these officials engage in this sort of excessive behavior is often due to ignorance."
In 2014, National Public Radio (NPR) posted a report stating that there were still cases of judges imprisoning people who have not paid court fees. The American Civil Liberties Union has been challenging such policies since 2009.
In September, 2015, the town of Bowdon, Georgia made international news when a sitting municipal judge, Robert A. Diment, was surreptitiously recorded threatening defendants with jail time for traffic violations if they did not provide immediate payment. The incidents caused the Bowdon Municipal Court to be closed for a month in order to implement changes in policy.
Modern U.S. by state
|California||P.C. § 1205||
|Minnesota||Const art I § 12||
|Missouri||Rev § 543.270||
|Oklahoma||O.S. §,2.13 ||
|Texas||Government Code Ch 21 § 002(f)||
|Washington||Const art I § 17||
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."
This international treaty contradicts many domestic laws of ratified states which allows for civil jail.
- Debt bondage
- Child support
- Poor law
- Province of Georgia in the colonial United States, originally intended to be settled by debtors
- Shays' Rebellion
- Tax evasion
- Cory, Lucinda. "A Historical Perspective on Bankruptcy" Archived February 28, 2008, at the Wayback Machine, On the Docket, Volume 2, Issue 2, U.S. Bankruptcy Court, District of Rhode Island, April/May/June 2000, retrieved December 20, 2007.
- "What is Contempt of Court and other Contempt of Court Questions Answered". JustAnswer.
- "What Happens If I Get Sued?". nasonlawfirm.com.
- Writer, Editorial (5 April 2009). "The New Debtors' Prisons". The New York Times. United States.
- Writer, Staff (14 April 2009). "Debtors' prison - again". The Tampa Bay Times. United States. Archived from the original on 6 July 2010.
- California, State of (2012). "CAL. PEN. CODE § 1205". Find Law.com. California Penal Code.
- Chris Serres, Glenn Howatt (17 March 2011). "In jail for being in debt". The Star Tribune. Minneapolis, MN.
- Circuit Court, Shelby County (July 2012). "Circuit Court of Shelby County CV 2010-900183.00". Scribd Research Law. Shelby County, Harpersville .pdf Alabama, USA.
- Articlesdepo.com[dead link]
- Berlinonline.de Archived December 22, 2010, at the Wayback Machine
- Ware, Stephen (July 2014). "A 20th Century Debate About Imprisonment for Debt". American Journal of Legal History.
- Wilkes, Jonny (February 10, 2015). "In a Nutshell: Debtor's Prisons". History Extra. BBC. Archived from the original on December 12, 2015.
- Charles Dickens Bibliography Archived 2010-12-15 at the Wayback Machine at charles-dickens.com
- Andrews, Arlene B. (October 2012). "Charles Dickens, Social Worker in His Time". Social Work.
- "Debtors Act of 1869". The National Archives (UK). Retrieved 6 December 2015.
- Judicial Statistics, England and Wales, Part 2. Great Britain Home Office. 1907. p. 35.
- Reporto.gr Archived February 5, 2009, at the Wayback Machine
- Worth, Robert F. (2009-02-12). "Laid-Off Foreigners Flee as Dubai Spirals Down". The New York Times. Retrieved 2010-05-01.
- Arnold, Wayne (2008-12-24). "How the world is dealing with the issue of debtors". The National. Retrieved 2010-05-15.
- Kindig, Thomas. "James Wilson 1742-1798". ushistory.org. Archived from the original on 2015-07-10.
- Axelrod, Alan (2007). The Real History of the American Revolution. p. 349.
- "Washington Square: Go to Jail". ushistory.org.
- "Was LHHL a good businessman?". Washington and Lee University. United States. Archived from the original on 2012-11-01.
- Lee III, Henry (1812). "Memoirs of the war in the southern department of the United States". google.books. United States.
- McMaster, John B. (1903). The Acquisition of Political, Social, and Industrial Rights of Man in America. Cleveland: Imperial Press. pp. 63–66. ISBN 978-1-4097-7187-6. Retrieved 2010-05-16.
- G. Stanley Joslin (January 1966). "Bankruptcy: Anglo-American Contrasts". Modern Law Review. 29 (2): 149–59. doi:10.1111/j.1468-2230.1966.tb01111.x.
- "History of the 19th century American poorhouses". Poor House History. United States.
- Rebekah Diller, Alicia Bannon, Mitali Nagrecha (October 2010). "The Brennan Report .pdf Source Page". The Brennan Center for Justice. "The Hidden Costs of Criminal Justice Debt" The Brennan Report.PDF.
- McElroy, Wendy (1 April 2008). "The Return of Debtors' Prison?". The Independent Institute. United States.
- "Accomac Debtor's Prison". APVA. Preservation Society Virginia. 2012. Archived from the original on 2012-09-30. Retrieved 2012-10-18.
- "Historical walking tour of Tappahannock". Essex County Virginia. Tappahannock.us. 2012.
- "Debtor's Prison (added 1972 #72001412), Worsham". National Register of Historical Places. Worsham, Prince Edward County. 2012.
- Diamond, Marie (13 December 2011). "The Return Of Debtor's Prisons". Think Progress. United States.
- American Civil Liberties Union, U.S. (October 2010). "ACLU Report .pdf Source Page". ACLU, USA. "In for a Penny" ACLU Report.PDF.
- Supreme Court of the United States (29 June 1970). "Williams v. Illinois, 399 U.S. 235 (1970)". United States.
- Supreme Court of the United States (2 March 1971). "Tate v. Short, 401 U.S. 395 (1971)". United States.
- United States, Supreme Court of (24 May 1983). "Bearden v. Georgia, 461 U.S. 660 (1983)". United States.
- "Alabama • Arizona • California • Florida • Georgia • Louisiana • Illinois • Michigan • Missouri • New York • North Carolina • Ohio • Pennsylvania • Texas • Virginia". 2010.
- Oklahoma, State of (2012). "Section Article 2 section 13 - Imprisonment for debt (2 § 13)". State Court Network. Oklahoma, United States.
- Kelleher, Susan (3 October 2010). "Unpaid court costs can bring cycle of debt, threat of jail, ACLU warns". The Seattle Times. Washington, USA.
- Writer, Staff (2010). "ACLU Report Exposes Modern-Day Debtors' Prisons". ACLU of WA. United States.
- Serres, Chris (17 March 2011). "Is jailing debtors the same as debtors jail?". The Star Tribune. MN, United States. Archived from the original on 17 October 2012.
- Stacey Cameron, DeAnn Smith (1 June 2012). "Modern Debtors' Prison". CBS, KCTV5 News. Kansas City, USA. Archived from the original on 2012-07-05. Retrieved 2012-10-21.
- Missouri, State of (2011). "MO Rev Stat § 543.270". Justia US Law.com. 2011 Missouri Revised Statutes.
- An, Susan (20 April 2012). "Unpaid Bills Land Some Debtors Behind Bars". NPR News, WBEZ. United States.
- Writer, Staff (30 May 2012). "Illinois Attorney General supports bill to keep debtors from being sent to prison". The Rock River Times. Illinois, USA. Archived from the original on 11 October 2012.
- Shindler, Michael (September 17, 2018). "Private Creditors Can Put You in Jail". The American Conservative.
- Shapiro, Joseph. "Supreme Court Ruling Not Enough To Prevent Debtors Prisons" (Archive). National Public Radio. May 21, 2014. Retrieved on June 30, 2014.
- "Debtors' Prisons". Retrieved 2015-05-08.
- Pleasance, Chris (2015-09-06). "Shocking court video emerges showing Georgia judge threatening to jail defendants if they cannot pay minor fines". Daily Mail. Daily Mail.com. Retrieved 19 November 2015.
- Dewan, Shaila (2015-09-04). "A Surreptitious Courtroom Video Prompts Changes in a Georgia Town". The New York Times. Retrieved 19 November 2015.
- Miller, Brittany. "Court closes after judge tells defendant they can't leave until traffic fines are paid". CBS46.com. CBS News. Retrieved 19 November 2015.
- Conaway, Laura (12 July 2012). "Alabama judge says enough with the debtors prison". MSNBC, Maddowblog. Alabama, USA. Archived from the original on 1 August 2012. Retrieved 23 October 2012.
- Glenn Howatt, Chris Serres (12 July 2012). "Owe money? It can land you in debtor's prison". The East Valley Tribune. Arizona, USA.
- Delaney, Arthur (20 June 2011). "Debtors' Prison: Jobless Woman Jailed For Unpaid Traffic Fines". The Huffington Post.
- Rankin, Bill (15 July 2009). "Court knew man jailed for a year for non-support was not child's father". The Atlanta Journal-Constitution. United States.
- General Assembly, State of Maryland (22 May 2012). "Family Law ( 12-104.1 ), Suspension of Payments and Accrual of Arrearages". Maryland HB.651. Maryland, United States.
- State of Minnesota, Constitution of the (2008). "Constitution of the State of Minnesota, Article I, Bill of Rights, Section 12". Minnesota Office of the Revisor of Statutes. Minnesota (USA).
- "§ 568.040. — Criminal nonsupport, penalty, prosecuting attorneys to report cases to division of child support enforcement. :: Chapter 568 — Offenses Against the Family :: Title XXXVIII — CRIMES AND PUNISHMENT; PEACE OFFICERS AND PUBLIC DEFENDERS :: 2005 Missouri Revised Statutes :: Missouri Revised Statutes :: US Codes and Statutes :: US Law :: Justia". Justia Law.
- Kenneth Urken, Ross (30 August 2012). "Debtors' Prison Is Back and Just as Cruel as Ever". Daily Finance. United States. Archived from the original on 2012-10-11. Retrieved 2012-10-23.
- Frisby, Mann (21 December 2011). ""Deadbeat" Father Questions the Effectiveness of the Child-Support System". The Philadelphia Weekly. Philadelphia, USA. Archived from the original on 31 January 2013.
- Brunker, Mike (12 September 2011). "Unable to pay child support, poor parents land behind bars". NBCNews.com. Tennessee, USA.
- Confehr, Clint (19 September 2012). "Man serves time in error". The Marshall County Tribune. Tennessee, USA.
- "Texas Government Code Chapter 21". Texas Legislature. Texas (USA). 20 June 2003.
- State of Washington, Constitution of the (12 January 2011). "Washington State Constitution, Article I Declaration of Rights, Section 17". Washington State Legislature. Washington (USA).
- Silver-Greenberg, Jessica (16 March 2011). "Welcome to Debtors' Prison, 2011 Edition". Wall Street Journal. United States.
- 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.