Now, here’s a system that Ebenezer Scrooge would love: Courts are still throwing poor people in jail for failing to pay a debt. Never mind that Congress abolished debtors’ prisons in 1833. Or that every state followed with its own ban.
Courts in 44 states and the federal system have gotten around those laws using a technicality. When debtors are sued, ordered by a judge to pay, and then fail to show up at a court hearing — sometimes one they knew nothing about — judges find them in contempt, which is a crime, and the debtor can be arrested and jailed.
Of course, the real issue is being too poor to pay a debt.
The American Civil Liberties Union recently examined 1,000 debt cases across 26 states where judges had issued arrest warrants, some for debts as small as $28. People were arrested while recovering from heart surgery or suffering from cancer. And those are just a fraction of such cases across the country.
Another way the government criminalizes being poor is when local prosecutors allow private debt collectors to threaten people with jail for a debt involving a bounced check.
Many people think that all debtors are deadbeats, and some are. But many fall into debt after getting a divorce, losing a job, or becoming seriously ill without medical insurance.
Debt collectors file tens of thousands of collection lawsuits each year. Once in court, the system is stacked against debtors, who rarely have lawyers and sometimes fail to get notice of the lawsuit.
Debts are legal obligations. But judges work for the public and shouldn’t allow themselves to be used by private companies to collect debts. Jailing debtors not only violates the spirit of the law, it also makes no sense. People in jail may lose their job and can't find a new one. None of which helps to pay debts.
More than 200 local prosecutors across the country have also partnered with private companies, essentially, "renting out" their powers to collect on bounced checks. The companies' letters — on official district attorney letterheads — look as if they came from the county prosecutor and frighten debtors. They demand payments, often tacking on exorbitant fees, and threaten prosecution if the check writers don’t pay up. In many cases, the prosecutor's office gets a cut of the profits.
Intentionally writing a bad check can be a crime, but emphasis is on intentional. Checks for small amounts seldom spur prosecution. The authority to decide which merit prosecution belongs to elected prosecutors and shouldn't be farmed out for profit to debt collectors.
In Kitsap County, Washington, Rosaline Terrill, whose $41.19 check to Goodwill bounced, was threatened in 2013 with "the possibility of criminal charges" in a letter that looked like it came from the local prosecutor. She made good on the check, but still got hounded for $200 in fees — five times the actual debt — until she paid that too, all the while fearing criminal action.
After District Attorney Tina Robinson took office, she says she ended the program because many of the cases did not merit prosecution. But at least two other counties in the state still use these abusive programs.
In Syracuse, New York, Onondaga County District Attorney William Fitzpatrick says he turns over cases to a contracted company only when “probable cause” exists to believe it involves fraud. Fitzpatrick finds this method preferable to using scarce government resources for this job.
Saving money isn't the point. It is a misuse of government power for judges to allow themselves to be used as blunt collection tools or for prosecutors to lend out their immense power to private companies that threaten to take away people's freedom.
Poverty is not a crime. Judges and prosecutors should not treat it as if it were.