Debtors Prisons


Jailed for $280: The Return of Debtors' Prisons 

By Alain Sherter | CBS MoneyWatch 

April 24, 2012


How did breast cancer survivor Lisa Lindsay end up behind bars? She didn't pay a medical bill -- one the Herrin, Ill., teaching assistant was told she didn't owe. "She got a $280 medical bill in error and was told she didn't have to pay it," The Associated Press reports. "But the bill was turned over to a collection agency, and eventually state troopers showed up at her home and took her to jail in handcuffs."

Although the U.S. abolished debtors' prisons in the 1830s, more than a third of U.S. states allow the police to haul people in who don't pay all manner of debts, from bills for health care services to credit card and auto loans. In parts of Illinois, debt collectors commonly use publicly funded courts, sheriff's deputies, and country jails to pressure people who owe even small amounts to pay up, according to the AP.

Under the law, debtors aren't arrested for nonpayment, but rather for failing to respond to court hearings, pay legal fines, or otherwise showing "contempt of court" in connection with a creditor lawsuit. That loophole has lawmakers in the Illinois House of Representatives concerned enough to pass a bill in March that would make it illegal to send residents of the state to jail if they can't pay a debt. The measure awaits action in the senate.

"Creditors have been manipulating the court system to extract money from the unemployed, veterans, even seniors who rely solely on their benefits to get by each month," Illinois Attorney General Lisa Madigan said last month in a statement voicing support for the legislation. "Too many people have been thrown in jail simply because they're too poor to pay their debts. We cannot allow these illegal abuses to continue."

Debt collectors typically avoid filing suit against debtors, a representative with the Illinois Collectors Association tells the AP. "A consumer that has been arrested or jailed can't pay a debt. We want to work with consumers to resolve issues," he said.

Yet Illinois isn't the only state where residents get locked up for owing money. A 2010 report by the American Civil Liberties Union that focused on only five states -- Georgia, Louisiana, Michigan, Ohio, and Washington -- found that people were being jailed at "increasingly alarming rates" over legal debts. Cases ranged from a woman who was arrested four separate times for failing to pay $251 in fines and court costs related to a fourth-degree misdemeanor conviction, to a mentally ill juvenile jailed by a judge over a previous conviction for stealing school supplies.

According to the ACLU: "The sad truth is that debtors' prisons are flourishing today, more than two decades after the Supreme Court prohibited imprisoning those who are too poor to pay their legal debts. In this era of shrinking budgets, state and local governments have turned aggressively to using the threat and reality of imprisonment to squeeze revenue out of the poorest defendants who appear in their courts."

Some states also apply "poverty penalties," including late fees, payment plan fees, and interest when people are unable to pay all their debts at once, according to a report by the New York University's Brennan Center for Justice. Alabama charges a 30 percent collection fee, for instance, while Florida allows private debt collectors to add a 40 percent surcharge on the original debt. Some Florida counties also use so-called collection courts, where debtors can be jailed but have no right to a public defender.

"Many states are imposing new and often onerous 'user fees' on individuals with criminal convictions," the authors of the Brennan Center report wrote. "Yet far from being easy money, these fees impose severe -- and often hidden -- costs on communities, taxpayers, and indigent people convicted of crimes. They create new paths to prison for those unable to pay their debts and make it harder to find employment and housing as well to meet child-support obligations."

Such practices, heightened in recent years by the effects of the recession, amount to criminalizing poverty, say critics in urging federal authorities to intervene. "More people are unemployed, more people are struggling financially, and more creditors are trying to get their debt paid," Madigan told the AP.


In for a Penny: The Rise of America's New Debtors' Prisons

Nancy Talner


October 5th, 2010

As we said in a previous blog post , you might have thought that “debtors' prisons” were extinct. But people are still being locked up all too often in Washington and around the country simply because they can’t pay their court-ordered financial obligations in a criminal case.

Two major reports are being released this week about the problem: the ACLU report “In for a Penny: The Rise of America’s New Debtors’ Prisons” and the Brennan Center report “The Hidden Cost of Criminal Justice Debt.” 

These reports document how poor defendants are being jailed at increasingly alarming rates for failing to pay legal debts they can never hope to afford.  As ACLU-WA’s press release explains, states across the country, in the face of mounting budget deficits, are more aggressively going after poor people who have already served their criminal sentences. In so doing, officials are undermining individuals’ prospects for re-entering society successfully and are paving their way back to prison or jail – burdening the public with yet more costs.

“Incarcerating people simply because they cannot afford to pay their legal debts not only is unconstitutional but it has a devastating impact upon men and women, whose only crime is that they are poor,” said Vanita Gupta, Deputy Legal Director of the ACLU. “The rise of these debtors’ prisons also has a disproportionate impact on people of color, who are overrepresented in the criminal justice system.”

And imprisoning people who are unable to pay fines and court fees is simply counter-productive. What makes us think that putting an indigent person in jail over and over again will result in that person finding the money to pay? 

Instead, the reports document how we are wasting scarce taxpayer dollars on incarcerating people who have no realistic ability to pay their staggering debts.  People in low-paying jobs trying their best to pay for rent, food and supporting their families find their legal debts from a criminal case overwhelming, especially when interest accrues at 12 percent from the day they are sentenced, even while they are still in prison

The debt burden has a devastating impact on offenders struggling to overcome their past and live a productive life.  The ACLU report cites a recent Washington case in which the ACLU-WA filed a friend-of-the-court brief: a Spokane man ended up spending 300 days in jail for failing to pay legal debts imposed in his criminal case, even though his original sentence was only 30 days in jail and he explained to the court that he had no way to pay because he was unemployed and homeless. 

In four other cases in the report, Washington residents describe how the crushing debt burden has driven individuals to the brink of hopelessness.  Children in Washington as well as adults are suffering from this system; a 16-year-old girl ended up being convicted instead of having charges dismissed because she wasn’t able to pay the full amount of legal debt in two years, despite her and her mother’s efforts to find employment and support the family through difficult economic times.  And in Texas, juveniles are being jailed for failing to pay truancy fines.  The ACLU of Texas has filed suit, noting that jailing youth who are unable to pay truancy fines violates the Constitution and perpetuates the "School to Prison Pipeline." 

The ACLU-WA and social justice allies advocate the passage of legislation that would move Washington toward a more rational approach than “debtors’ prisons.”  The state legislature needs to a) reduce the interest accruing on legal debts during periods of incarceration; and b) ban incarceration for failure to pay when the defendant lacks the current ability to pay, thereby saving counties the costs of jailing poor people, when there is no evidence that the jail time improves the person’s ability to pay and, more likely, jail makes it worse.  For similar reasons, we also support decriminalizing driving with a suspended license when the only reason for the suspension is a failure to pay traffic tickets or other fees related to driver’s licenses. 

The news is full of stories about the budget crisis facing our state and counties.  Isn’t it time we stopped throwing money away on keeping people poor by jailing them for failing to pay legal debts?


Can’t Pay? Go Directly to Jail

Nancy Talner


June 25th, 2010

You might have thought that “debtors' prisons” were extinct. But people are still being jailed in Washington all too often simply because they can’t pay their court-ordered financial obligations in a criminal case.

The Washington Supreme Court recently agreed with ACLU-WA that it is not fair to “automatically” send a person to jail for failure to pay these financial obligations, without a hearing to determine if the person has the ability to pay.

The case (State v. Nason) involved a Spokane man who was convicted of burglary in 1999 when he was 18 and was sentenced to serve 30 days in jail and to pay about $700 in court fines and fees. The amount he owed quickly doubled due to accruing interest. The interest rate on legal financial obligations in criminal cases is 12%, far higher than the rate for things like savings accounts.

Little did Mr. Nason know that he would end up spending nearly 10 times his original sentence behind bars - not for committing new crimes but for missing payments. Under the “automatic jail” policy adopted by the court in Spokane County, he was required to agree that he would serve 30 or 60 days or more each time he missed a monthly payment. He was sent to jail without a hearing to consider whether he had the ability to pay.

In fact, Mr. Nason could not pay – he had no income, was homeless, and was living out of his car with his brother. He had been walking up and down a main street in Spokane looking for employment at different places. His only money was the $152 that he received in food stamps.

The Washington Supreme Court said that the “automatic jail” policy was a violation of the due process clause of the constitution. But questions about the fairness of Washington’s system for collecting legal financial obligations (LFOs) remain. A recent study showed some counties impose far more LFOs than others, and a larger debt burden is placed on Latino defendants than on others. As the Spokane Spokesman-Review noted, counties may spend more to put people in jail for non-payment than they take in.

Fortunately, this issue is increasingly attracting the attention of legal scholars and activists. A Seattle University Law School graduate was recently awarded a fellowship dealing solely with LFO issues in Washington. A legal seminar on June 25 at the University of Washington School of Law will discuss the problem, and groups such as the ACLU and the Washington Defender Association continue to seek to reform Washington’s tangled LFO procedures. These groups are also filing a friend of the court brief this week in another case involving the fairness of procedures for LFO enforcement.


 The New Debtors’ Prisons

New York Times

April 6, 2009


 Here is a tale that sounds like it comes right from the pages of “Little Dorrit,” Charles Dickens’s scathing indictment of Victorian England’s debtors’ prisons. Unfortunately, it is happening in 21st-century America.

Edwina Nowlin, a poor Michigan resident, was ordered to reimburse a juvenile detention center $104 a month for holding her 16-year-old son. When she explained to the court that she could not afford to pay, Ms. Nowlin was sent to prison. The American Civil Liberties Union of Michigan, which helped get her out last week after she spent 28 days behind bars, says it is seeing more people being sent to jail because they cannot make various court-ordered payments. That is both barbaric and unconstitutional.

In 1970, the Supreme Court ruled that it violates equal protection to keep inmates in prison extra time because they are too poor to pay a fine or court costs. More recently, the court ruled that a state generally cannot revoke a defendant’s probation and imprison him for failing to pay a fine if he is unable to do so.

That has not stopped the practice. In Georgia, poor people who cannot pay off fines — plus a monthly fee to the private company that collects the payments — are often sent to jail for nonpayment, according to Stephen Bright, president of the Southern Center for Human Rights. In 2006, the center sued on behalf of a woman who was locked up in Atlanta for eight months past her original sentence because she could not pay a $705 fine.

Until a few years ago, the police in Gulfport, Miss., regularly did sweeps of the city’s predominantly African-American neighborhoods, identified people with unpaid fines, and put them in jail. Defendants who could not pay were forced to remain there until they “sat off” their fines. The city ended the practice after it was sued.

Prisoners’ rights advocates worry that in these hard times, when government budgets are under pressure, courts and prisons will get even tougher about forcing indigent defendants to pay costs and fees, and will imprison more of them if they cannot come up with the money. The government should be helping people on society’s margins build productive lives. Throwing them in jail for being poor makes that much more difficult.


The New Debtors’ Prison

Sam Glover

Caveat Emptor

October 21, 2009

Debtors’ prison was supposedly eliminated in the United States in the 19th century, but in the 21st, people are still being arrested and tossed into jail for debts. It just takes an extra step these days.

This morning, I sat in court and watched a debt collector get six bench warrants for debts under $1,000. I recognized the names of all the plaintiffs: Palisades, LVNV, and Capital One. Palisades and LVNV, and maybe Capital One, probably would not have won their lawsuit if the defendants challenged them. But each defendant defaulted when he or she did not answer the lawsuit, and gave up their right to challenge it.

After getting a default judgment, the debt collector asked the court to issue an order for disclosure. An order for disclosure orders the debtor to disclose his or her assets—where they keep their money. Like any other court order, failure to obey will result in jail time. This makes perfect sense under ordinary circumstances, but debt collectors use the courts like an assembly line leading to jail.

The problem is not necessarily the court rules and Minnesota statutes that the debt collectors are using. Defendants should have to answer a lawsuit to challenge it, and court orders must be enforceable. But in order to do those things, defendants must understand their rights, as well as the documents they receive. Unfortunately, the rules and statutes, along with the court’s forms, are practically incomprehensible to non-lawyers. As a result, non-lawyers, like the defendants who will be tossed in jail as a result of what I saw this morning, probably had no idea how to answer their lawsuit, or that they would go to jail if they did not disclose their assets.

Debt collectors are just taking advantage of a system that is unfriendly and nearly impenetrable to non-lawyers.



Could Debtors’ Prison Make a Comeback?

Marlys Harris

Aug 10, 2009

CBS money Watch

When I was laid off last December, my thoughts traveled like a bullet train to a dark future. After I exhausted my severance (which would take about 15 minutes), I would be unable to pay my bills, including my health insurance. Then I would lose my house and all my possessions and have to live under a freeway. (I completely forgot about my savings, but that’s what happens to logic in the first terrifying moments after a layoff.) My only consolation was that without the extra funds to underwrite my snack habit, I might lose weight. In any case, I pictured myself huddled near a gas drum fire shivering in a ragged coat desperate for a cup of coffee.

But, horrible as that nightmare was, I never pictured myself going to prison for failure to pay MasterCard or Visa. After all, imprisonment for debt (with some exceptions for fraud and non-payment of alimony and child support) hasn’t been around in this country since the 1800s. Before that, debtors who had no assets could be swept into prison even if they owed only pennies. Because authorities refused to pay for food and clothing (as they did for murderers and robbers), debtors languished in deplorable conditions for years. These days, creditors go after any assets you have, and if you have none, they write off the debt and promise themselves to check your credit record more carefully next time around.

However, one judge (at least) in Southern Indiana, decided that debtors’ prison needed a comeback. In one case Herman Button, who owed $1,800 to a former landlord but had no assets or income beyond social security, was summoned to court where a moronic judge threatened him with contempt and imprisonment if he did not pay. Here’s how it went:

The Court: So we’re here today for you to explain what you’re going to do to pay this off.
Mr. Button: I can’t.
The Court: Okay, but you’re going to.
Mr. Button: I can’t do it.
The Court: Okay, Mr. Button.
Mr. Button: Yes, Ma’am.

The Court: For some reason we’re not communicating. Alright, [sic] you’re not hearing me for some reason. I am telling you that, yes, you will. You’re going to tell me how you’re going to go about doing that. And I’m not going to accept I cannot, and if the next words out of your mouth are I cannot, Mr. Button, then you’ll set with Mr. Glenn at the Sheriff’s Department until you find a way that, yes, you can. So what kind of payments can you make to pay this down?
Mr. Button: Five dollars ($5.00) a month.

The Court: I’m going to be an old woman before this is ever paid off.

Mr. Button: That’s what I can afford, ma’am. I live on social security disability. I’ve got to pay my rent and my lights and my gas.
The Court: I’m going to order you pay twenty-five dollars ($25.00) a month until this is paid off. I’m going to show that we are to come back March 12, at 1 o’clock, at which time Miss James is going to tell me that she has already received fifty dollars ($50.00) towards this.

Fortunately, this July, the Indiana court of appeals reversed the lower court. Says Katherine J. Rybak, Button’s Indiana Legal Services attorney, “They declared that he couldn’t be sent to jail on a judgement without any evidence of his ability to pay it. Besides, it violates our state constitution.” Now, however, Rybak has another case pending in which a woman was sentenced to jail for 30 days for missing payments on a debt of $110. “She escaped jail only because a complete stranger came up with $100, and somebody else threw in $10,” Rybak adds.

At this point it’s unlikely that prison is in our future no matter how stretched our finances become. Still, I have to wonder after reading a commentary by Barbara Ehrenreich in the Sunday New York Times about the treatment of the unmonied by police and courts. She points out that while debtors prisons no longer exist, a creditor can petition a court to issue a summons for nonpayment of a bill. If you fail to appear, for one reason or another–and life gets pretty disorganized when you lose your job and possibly your home — then you’re in contempt of court. Next stop, jail.

Where you can run up more debt. An increasing number of prison systems are charging their inmates for room and board, among them, Taney County in Missouri ($45 a night), New Jersey, where fees are under consideration ($10 to $15 a day), and Springfield, Oregon ($60 a day). Nobody knows what happens if an inmate can’t pay. I guess authorities will have to issue a warrant for his arrest and put him in jail.



 How We Used to Treat Debtors

 The New Yorker

 April 13, 2009


ABSTRACT: ANNALS OF FINANCE about how America used to treat debtors. It took more than an argument to abolish the institution of debtors’ prison. Parliament didn’t ban the imprisonment of debtors until 1869. Imprisonment for debt was abolished in New York in 1831; the rest of America soon followed. What was already replacing it in the late eighteenth century was something that has become a mainstay of American life: bankruptcy. Eighty-six hundred Americans filed for bankruptcy in 1946; nearly three hundred and fifteen thousand filed in 1980; and more than a million filed in 2008. As many as two out of every three Europeans who came to the American colonies were debtors on arrival. Some colonies were, basically, debtors’ asylums. By the seventeen-sixties, sympathy for debtors had attached itself to the patriot cause. The American Revolution, some historians have argued, was itself a form of debt relief. In 1787, just before the Constitution was drafted, New Yorkers formed the Society for the Relief of Distressed Debtors. They launched an investigation and found that, of 1,162 debtors committed to debtors’ prison in New York City in 1787 and 1788, 716 of them owed under twenty shillings. In 1758, New York’s debtors were moved to New Gaol, near what’s now City Hall Park. Describes the horrible conditions in New York’s debtors’ prison. In 1791, John Pintard, a state legislator and stockbroker, fell for William Duer’s financial scheme, which helped trigger the Panic of 1792, the nation’s first stock-market crash. Pintard eventually landed in debtors’ prison in Newark. The idea that debt is necessary for trade, and has to be forgiven, is consequent to the rise of a market economy. Americans fought to provide the same debt relief to everyone because we believe in equality and because bankruptcy protection makes taking risks less risky. Our willingness to forgive debt lies behind a good part of our prosperity. Pintard got out of jail in 1798, and he filed for bankruptcy in 1800. He went on to found the New-York Historical Society in 1804, and to help open the New York Bank for Savings in 1819. Mentions Joseph Dewey Fay. In 1841, Congress passed a sweeping federal bankruptcy law that offered bankruptcy to everyone. Meanwhile, in 1831, the New York State Legislature abolished imprisonment for debt. Other states soon followed. Debtors’ prison was abolished, and bankruptcy law was liberalized, because Americans came to see that most people who fall into debt are victims of the business cycle, and not of fate or divine retribution.

Read more:


Debtors' prison— again

St. Petersburg Times

April 13, 2009

In a little-noticed trend blamed on the state's hard economic times, several courts in Florida have resurrected the de facto debtor's prison — having thousands of Floridians jailed for failing to pay assessed court fees and fines. The shortsighted plan threatens to run afoul of the U.S. Constitution. It appears to generate little additional revenue relative to the misery it causes, and it should be stopped.

A recent report by the nonprofit Brennan Center at New York University School of Law highlights the difficulty of trying to get what one researcher called "blood from stone." In Leon County's Collection Court, defendants who fail to pay their court-ordered costs and fines — often hundreds of dollars — are notified to appear at Collections Court and later arrested if they don't show. In the 12 months studied, there were 838 arrests for not appearing in court or failing to pay what was owed. Most people spent hours in jail, but some were held for a week or more.

At $53 per day of incarceration, it is an expensive way to try to collect from people who generally are struggling to meet the expenses of daily living. The center calculated that those incarcerated cost the system $62,085 to bring in $80,450 in debts.

Jail time for being broke is no way to help people get back on their feet after a run-in with the legal system. Judges should be exercising the option in state law that allows them to convert court-ordered obligations into community service. But with the Florida Legislature looking for revenue to fund the courts and other state services, judges are under pressure to wring every available penny out of those who owe.

The nonpayment problem is only likely to worsen. In Tallahassee, lawmakers are debating raising court fees and fines even further to raise general revenue for the state. Meanwhile, the state's rising unemployment rate will make it tougher for Floridians with a criminal record to find a decent job. Do we really want our jails filled with people whose only "crime" is that they are poor?

About a third of Florida counties use collections courts, but even those without them jail people for their debts. In Pinellas, Hillsborough and Hernando counties, collection agencies are used to extract the overdue fines and fees. But defendants who violate their probation by failing to pay can find themselves in jail if a judge believes they have not coughed up what they can.

Author Charles Dickens familiarized his readers with England's system of squalid debtors' prisons. Dickens' father was imprisoned in Marshalsea for debts and Dickens set Little Dorrit there. But that country saw the light in the mid 19th century and outlawed jail for debtors.

In the United States, it is unconstitutional to incarcerate someone solely for failing to pay a debt. Florida officials get around this by claiming the defendants are going to jail not for their debts but for violating a court order. That is what you would call a self-serving technicality. The truth is that Florida has enthusiastically resurrected debtors' prison. How Dickensian is that?


The Return of Debtors’ Prison?

Wendy McElroy

The Independent Institute

April 1, 2008

H. Beatty Chadwick, a former corporate lawyer, has been imprisoned in a Pennsylvania county jail for over 13 years even though he has never been arrested, criminally accused, or tried. Chadwick is imprisoned on contempt-of-court charges that sprang from a contentious divorce. His case dramatizes a continuing debate over the use and misuse of civil-contempt imprisonment.

Many people view contempt of civil court as an uncommon and relatively benign sanction that is flexed only to enforce court orders or respect for the court. If the sanction is seen to have bite, it is usually in connection with high-profile cases in which journalists refuse to reveal their sources and so are imprisoned until they relent or it is clear that further imprisonment will not compel compliance.

In reality such imprisonment seems to be commonplace and it can devastate lives. Arguably, the most common form of civil imprisonment is for nonpayment of child support. When a “deadbeat” parent is jailed for nonpayment by a family-court judge, the actual charge is contempt of civil court. How many “deadbeats” are imprisoned each year is unknown because family courts are not required to maintain such records and rarely do so. This means that family-court judges act with less transparency and less accountability than those in other venues do. Moreover, there is no national database of “deadbeat” parents incarcerated each year. In short, there is an amazing lack of data on such imprisonment, with estimates ranging from tens of thousands to hundreds of thousands.

What is contempt of court? The United States has two basic types of contempt: criminal and civil. Contempt of court has been called the “Proteus” of the legal system because Proteus was the Greek sea god who could change his shape at will. In short, contempt of court can assume many forms due to three factors: the judge is often the sole evaluator of when contempt has occurred; federal law differs from state laws, which often vary from each other; and criminal contempt is remedied differently from its civil parallel.

Nevertheless, all contempt charges share certain characteristics. In its most basic form, contempt of court is a ruling through which a judge sanctions a deliberate act or omission to act that he or she considers to be disobedient, obstructive, or disrespectful to the court. The ruling is the sternest remedy a judge can impose on “bad behavior,” such as refusing to obey a court order or uttering obscenities in court. Punishment can be imposed on anyone within the court, including attorneys, parties to a lawsuit or criminal action, witnesses, and spectators.

This article focuses on civil contempt on a state level and analyzes criminal contempt only by way of contrast. In theory a key difference is that criminal charges are more serious than civil ones and often involve the loss of liberty. Thus criminal defendants have protections of due process that civil defendants do not enjoy. In some cases, however, civil contempt involves imprisonment against which the offender, or contemnor, has no legal protection or recourse except eventual compliance.

What are some of the other key differences between civil and criminal contempt?

In both, contempt can be either direct or indirect. Direct contempt is committed in the presence of a presiding judge; for example, interrupting the judge. Indirect contempt is committed outside the presence of the presiding judge, for example, neglecting to pay court-ordered child support.

In civil court, once the direct contemnor has been advised of the contempt, a fine and/or imprisonment may be imposed immediately. The imprisonment is generally for a few days but can span months. The contemnor has no legal right to an attorney or a trial or any defense. The judge’s ruling cannot be appealed. In indirect civil contempt, the contemnor is entitled to notice and a hearing at which to present evidence and rebuttal. Then, at the sole discretion of the judge, the contemnor may be imprisoned until compliance is compelled. With noncompliant contemnors, imprisonment usually ends when the judge concludes that continuation is ineffective. If the judge does not reach that conclusion, it is possible for the imprisonment to be indefinite.

By contrast, in direct or indirect criminal contempt, the contemnor retains the rights of due process. The sentence, which is meant to punish rather than to compel compliance, is of a set length.

Thus in practice a civil-contempt charge can be far more serious than a criminal one.

Consider H. Beatty Chadwick’s 13 years of imprisonment. The facts of his case are straightforward. In 1977 Chadwick married Barbara Jean Crowther. In 1992, she filed for divorce. In 1994 Barbara Chadwick informed the court her husband had wired $2.5 million out of the country. The judge ordered him to retrieve the money and place it in a court-controlled account until the divorce was settled. Beatty Chadwick claimed that most of the money had been lost in a foreign business deal gone bad; however, a small fraction of the money showed up in a U.S. bank under his name and the court did not believe his story. In April 1995 Chadwick was imprisoned until the money was produced.

Traditionally, a contempt-of-court sentence continues only as long as there is a reasonable expectation of coercing compliance. Otherwise, the imprisonment becomes a punishment, which is a criminal sanction and beyond the authority of civil courts.
An Affront to Liberty

A 1974 New Jersey Supreme Court case, Catena v. Seidl, is often cited regarding this point in civil contempt. “It is abhorrent to our concept of personal freedom that the process of civil contempt can be used to jail a person indefinitely, possibly for life, even though he or she refuses to comply with the court’s order. . . . [C]ontinued imprisonment may reach a point where it becomes more punitive than coercive and thereby defeats the purpose of the commitment.”

In 2002 U.S. District Court Judge Norma Shapiro ordered Chadwick’s release on grounds that continued imprisonment would not compel compliance. That same year, then-Third U.S. Circuit Court of Appeals Judge Samuel Alito overturned Shapiro. He said, “Because the state courts have repeatedly found that Mr. Chadwick has the present ability to comply with the July 1994 state court order, we cannot disturb the state courts’ decision that there is no federal constitutional bar to Mr. Chadwick’s indefinite confinement for civil contempt so long as he retains the ability to comply with the order requiring him to pay over the money at issue.”

Thus Alito, now a U.S. Supreme Court justice, asserted the right of a civil court to hold a contemnor in prison in perpetuity. The only question was whether the contemnor has the ability to comply.

In Chadwick’s case the ability is far from clear. In 2003 former Pennsylvania Judge A. Leo Sereni oversaw an 18-month investigation in which two accounting firms attempted to track down Chadwick’s money. No trace was found beyond what had been identified a decade before. Sereni recommended Chadwick’s release, stating, “My God— if he had stolen $2 million, he would have been out a couple of years ago.” (Apparently, the state maximum for that crime is or was a seven-year term.) Chadwick’s lawyer has added that his elderly client now suffers from non-Hodgkin’s lymphoma and requires “outside” medical attention.

In February 2006 the presiding court held that Sereni had “overstepped his bounds” and Chadwick’s incarceration should continue.

Is the Chadwick case an aberration that has slipped through the cracks of an otherwise reasonable system? Or is it an extreme example of a commonplace occurrence that suggests family courts are out of control in the use of contempt imprisonment?

The “legal crack” theory confronts a problem. According to the Chicago Tribune, the case has produced “a dozen pleas to the county courts, nine to state appeals courts, nine to the Pennsylvania Supreme Court, six to the nearby federal court, four to the Third Circuit Court of Appeals and two to the U.S. Supreme Court.” For an injustice to withstand sustained efforts to remedy it, the “crack” has to be both massive and widespread. A mere aberration should be easier to correct, and higher courts should not affirm it.

Yet if the Chadwick case points to widespread abuse, how should civil contempt be reformed? Or, more fundamentally, should the sanction be abandoned entirely?

An Alternative?

Abandoning civil contempt would not be absurd. After all, that specific power derives from British common law. Civil law, which is also known as Continental or Romano-Germanic law, is at least as widespread as common law; for example, it is the basis of French Civil Law and the Swiss Civil Code. The fundamental difference between the two systems is that common law derives rules or precedents from specific cases and civil law starts with rules and applies them to specific cases.

For purposes of this article, however, the fundamental difference is that most civil-law countries do not recognize civil imprisonment for contempt. In their book The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, legal scholars John Merryman and Rogelio Perez-Perdomo wrote, “Another fundamental difference between the civil law and common law traditions occurs in enforcement proceedings. Civil law jurisdictions have nothing comparable to the common law notion of civil contempt of court. . . . [I]n the common law a person can be compelled to act or to refrain from acting by the threat of imprisonment or fine for contempt of court—that is, for refusing to obey a court order addressed to him or her as a person.. . . The civil law, by way of contrast, knows no civil contempt of court and tends to operate solely in rem. This means that regardless of the type of claim one has against another person, the only way one can collect the claim is by obtaining a money judgment.”

Much of the world, including most of western Europe, functions without the common-law tradition of civil imprisonment. Thus it is not clear that eliminating the practice would harm North American jurisprudence in any manner.

Indeed, there are good reasons to believe that eliminating the imprisonment would improve justice in North America.

First and foremost, there is the human cost. The misery inflicted by imprisonment is the most obvious human cost. But critics of civil contempt argue that such imprisonment is also violation of constitutional rights that should apply not merely to criminal matters but also to civil ones—at least, if punishment involves the deprivation of liberty. These critics refer primarily to the rights of due process that are protected by the Sixth Amendment but also to those within the Fifth and Fourteenth Amendments.

The Sixth Amendment states, “In all criminal prosecution, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed . . . and to have the assistance of counsel.” Although civil contempt is not a criminal prosecution, the line between the two blurs with imprisonment and when the penalty is imposed as a punishment rather than a remedy.

The Fifth Amendment states, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.” One of the traditional measures of whether a crime is “infamous” is the severity of punishment that may be imposed for its violation; the punishment of indefinite imprisonment would seem to make civil contempt an “infamous crime.”

The relevant section of the Fourteenth Amendment reads, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Again, imprisonment seems to require the observation of due process.

Arguably, civil contempt also impinges on First Amendment guarantees of free speech. The need for transparency and accountability within the justice system is a hotly debated issue. A prerequisite of meaningful debate is the ability to criticize the conduct and decisions of judges. As civil-contempt laws read today, however, a person who accuses a judge of misconduct can be found guilty of contempt of court even if he or she is able to prove the truth of the statement.

In theory a judge imposes contempt charges as a last resort and in a manner that respects rights. But when a judge (or any human being) is given absolute and virtually unaccountable power over another, frequent abuse is the predictable result. This is especially true when an act of contempt directly challenges a judge’s authority or constitutes an insult. In short, the judge becomes the injured party; this fact alone should disqualify him or her from rendering a decision on the alleged injury. As Justice Hugo Black stated, “When the responsibilities of lawmaker, prosecutor, judge, jury and disciplinarian are thrust upon a judge he is obviously incapable of holding the scales of justice perfectly fair and true and reflecting impartially on the guilt or innocence of the accused. He truly becomes the judge of his own cause.”
Political Abuse

It is not merely the judge who can abuse contempt of court charges; it is also politicians. A famous example of contempt being used politically is the 1895 imprisonment of labor leader Eugene V. Debs. Debs was arrested both for conspiracy and for contempt of court following his prominent role in the Pullman Strike, during which the American Railway Union refused to handle Pullman cars or any cars attached to them, including those carrying U.S. mail. The federal government obtained an injunction against the strike, which it sent in the Army to enforce. On the charge of conspiracy, Debs had a jury trial in which famed civil rights attorney Clarence Darrow defended him; the case was dropped mid-trial. On the charge of contempt, the judge in his sole authority sentenced Debs to six months in prison.

The danger of contempt-of-court charges being abused rises when the case being decided is controversial and open to political pressure.

Can the good of society (or other specific individuals) be balanced against the cost and danger of contempt of court? In civil contempt the “good” is usually defined as “paying up”—for example, child support. It is difficult to understand what “good” is accomplished by imprisoning nonviolent parents who are behind in payments. Although data on the number of “deadbeat” prisoners is vague and often anecdotal, “deadbeat” dads almost certainly constitute the majority of civil-contempt imprisonments. Often the stated goal is to pry loose hidden money from the parent. But there is no statistical proof or studies to indicate that imprisonment motivates a parent who can pay up to do so. Moreover, society tracks wealth through bank accounts, tax returns, pay stubs, and myriad paper trails; if wealth is not discoverable and attachable, there should be a presumption that it doesn’t exist. The accused should not be guilty until proven innocent.

The possibility that many insolvent “deadbeats” are punished for their poverty has given rise to the accusation that America has reinstated debtors’ prisons. A debtors’ prison is simply a prison for those unable to pay a debt. In 1833 the United States eliminated such institutions at the federal level and most states followed suit, refusing to impose the criminal penalty of imprisonment on insolvent debtors. Currently, the typical wording about debtors’ prisons within state constitutions is, “No person shall be imprisoned for debt in any civil action, or mesne or final process, unless in cases of fraud.” It is still possible, however, to be incarcerated for nonfraudulent debts such as nonpayment of alimony or child support.

Imprisonment for civil contempt is an unnecessary and dangerous exception to the due process to which every individual is entitled both by the Constitution and by natural right. It also involves a confusing, inconstant maze of laws that collapse the traditional distinction between criminal and civil courts. As Justice Black observed, “It would be no overstatement . . . to say that the offense with the most ill-defined and elastic contours in our law is now punished by the harshest procedures known to that law.”

I believe civil-contempt imprisonment is a legal aberration that creates an artificial and arbitrary respect for courts. It also acts as a barrier for the open evaluation and criticism of judges, which is necessary to a healthy transparency within the judicial system.

Civil-contempt imprisonment is far from a benevolent or rarely flexed power. Unless the law is changed or eliminated, Beatty Chadwick will spend the rest of his life in jail without ever being arrested or heard by a jury; tens of thousands—and, arguably, hundreds of thousands—of “deadbeat” parents will be sent to the modern equivalent of debtors’ prison.

The power of a judge to imprison without recourse should be eliminated.