Making the case that American capitalism oppresses the white middle class was a tough sell back when I was a wee lad. For one thing, the thirty five percent of the American workforce that belonged to a union (and most of the rest who experienced the obvious "knock on effect" of a union scale wage) would strongly disagree. Today the story is much different. Such looming threats to the US middle class as predatory lending, union busting, changes in the bankruptcy laws that favor creditors, higher regressive local taxation and the shipping of jobs overseas all pale in comparison to the one only beginning to rear its ugly head: debtors prison! In all honesty, people aren't actually sent to prison specifically for unpaid debts. But more and more are being sent for "violating a court order" to pay or for simply failure to appear in court when being sued for debt repayment. A report by popular radio show host, Thom Hartmann contained these harrowing lines;
Debtors’ prisons haven’t officially been used in America since before the Civil War. But today, a third of the states in the country allow debt collectors to use the public court system to go after people who owe them money. So, rather than being thrown in jail for specifically owing money, Americans are thrown in jail for not showing up to court hearings or not paying legal fines stemming from their debts. There’s even a law in Arkansas that allows landlords to throw tenants in jail if they're late on their rent. According to a recent report by Human Rights Watch, hundreds of tenants in Arkansas who’ve fallen on hard times and can’t pay their rent are taken to court and sometimes jailed. So, in a roundabout way, the debtors prisons have returned to America.
Hartmann brought this up in the course of addressing a twenty year old phenomenon; the rapid growth of private household debt which actually exceeded US GDP by the time of the Great Recession/Financial Crash of 2008
. His point was that such debt was the real
threat to the US economy and not public debt or federal deficits which actually stimulate
the national economy. The reason is that private debt is not only larger, it slows consumer spending as households deleverage causing recessions and making recovery more difficult. The point, of course, is that no one ever expected debtors prison to be a solution!
The understandable source of Hartmann's outrage (and that of any sentient human being who considers the issue) was that while the "banksters" on Wall Street weren't even prosecuted for all the fraud, abuse and wrecklessness that drove our economy into the worst depression since the 1930s, our court system saw fit to imprison Lisa Lindsay of Herrin, Illinois for a $280 medical bill that was charged to her by mistake! Illinois Attorney General Lisa Madigan praised Illinois State lawmakers for passing almost unanimously House Bill 5434 commonly known as the Debtors' Rights Act of 2012 saying,
"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...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."
In October 2010, The ACLU published a long report entitled In For A Penny: The Rise of America's New Debtor's Prisons in which it details cases in five states of abuse of the law in order to incarcerate indigent people over past debts. The ACLU report begins by citing a 1983 SCOTUS decision that held that "...imprisoning a probationer who, through no fault of his own, had been unable to pay his debts despite making bona fide efforts to do so violated the Equal Protection Clause of the Fourteenth Amendment." This was the majority opinion in the Supreme Court decision in Bearden v. Georgia whereby Daniel Bearden was imprisoned by the State of Georgia after failing to make the balance of outstanding restitution payments to the state after losing his job. This momentous decision is expected to provide precedent for other such decisions in states where debtor protection laws, such as the one recently passed in the State of Illinois, have yet to be passed. The ACLU argues that the new debtors' prisons, where people, mostly Black and Hispanic, are imprisoned for failure to pay what is termed LFOs (legal financial obligations), reinforce the existing two-tier system of justice in America.
Most of these LFOs are criminal justice related fines and restitution that debtors can't pay because of hardship, unemployment or simply indigence. According to the Brennen Center for Justice at New York University, many states are adding new categories of fines all the time simply to increase these states' shrinking tax base. It is sickening to think that poor people, often supporting families, are sent to jail for being unable to pay fines and fees that probably wouldn't be "necessary" if the rich paid their fair share of taxes! The entire situation is reminiscent of Dickens' England!
The Brennen Center for Justice of New York University published a report regarding fifteen states it investigated regarding incarceration for debt, generally LFOs owed to the states and municipalities. What the Center found was that many states, frequently those with the highest incarceration rates nationwide, are increasing the debt burdens of the poor by adding user fees for legal services and increasing the cost of existing ones. All this makes imprisonment more likely for the debtor. The report asserts;
Across the board, we found that states are introducing new user fees, raising the dollar amounts of existing fees, and intensifying the collection of fees and other forms of criminal justice debt such as fines and restitution. But in the rush to collect, made all the more intense by the fiscal crises in many states, no one is considering the ways in which the resulting debt can undermine reentry prospects, pave the way back to prison or jail, and result in yet more costs to the public.
What is especially galling is that all this revival of Victorian era methods of oppressing the poor comes at a time when the rich and corporations are refusing to pay their fair share of taxes putting pressure on state and local governments to resort to unconstitutional tactics to soak those least able to pay. The main way this is done is the rise, mostly in the deep south, of private probation companies. When municipalities find that they cannot pursue all those owing fines they contract with private probation companies such as Judicial Correctional Services
which collect fees and fines, manage people put on probation for non-payment of fines and bill the full costs to those put on probation. Then the JCS begins to pile fees on top of fees until the costs of managing their case loads are paid along with a significant profit for the private firm.
Fees payable on criminal justice debt that accrues to private probation companies corrupts our legal system and invites extortion. The resulting greed creates incentives to hound and defraud the poor. Debtors, often poor racial minorities, are routinely threatened with prison terms for falling behind on their payments. The Brennen Center found that all fifteen states under investigation (except Texas) allows criminal justice fees to compound for delinquency and late payment. The Brennen Center also found that probation could be extended beyond judicially imposed terms for non-payment of criminal justice debt in thirteen of the fifteen states examined. It is the debtor that funds the entire system of debt collection. At a time when profit seeking private companies are looking to pick the bones of revenue starved local governments, private probation management offers more profitable opportunities to transfer income from the very poorest debtors to the rich! The link cited above regarding JCS describes how the system works;
IN LATE 2010 police in Childersburg, Alabama ticketed both Kristy and Timothy Fugatt for driving with expired licence tags. They were fined $148 each, plus another $198 for Mrs Fugatt, whose licence had expired. They could not afford to pay, so they were placed on probation under the supervision of Judicial Correction Services (JCS), a private company that manages probationers for roughly 200 misdemeanour courts in the south-eastern United States. JCS also charged each of them a $45 monthly service fee. When they fell behind on their payments, they were charged more fees and threatened with jail. In February 2012 they claim that a Childersburg policeman arrested them at their home, threatened them with a Taser, told them their children would be placed in state care and took them to prison. They were released only after relatives brought $900 to the Childersburg jail. (Robert McMichael, the head of JCS, refused to comment on any of these allegations.)
The article goes on to stress that private probation companies collect fees that are a source of private profit by rendering services that fill the gap left by cash strapped municipalities who can no longer fund the bulk of their normal operations. Rather than fines meant to deter infractions of the law, these fees fund the criminal justice system in lieu of adequate tax revenue while allowing private firms to profit.
An even more heart breaking case was featured in a recent documentary called To Prison for Poverty. It details the case of Halli Wood a poor, unemployed teenager from Columbiana, Alabama originally fined for a mere seat belt infraction! The report asserts;
Halli Wood, an unemployed 17-year-old from the small town of Columbiana, Alabama, told Brave New Films she was placed on probation with one of the largest of these companies, Judicial Correction Services, or JCS, after she couldn't come up with the money to pay off a seat belt ticket. Although Wood couldn't afford the $41 ticket, the company charged her an additional 45 dollars in fees. Like other private probation companies, JCS bills its services not to the court but to the defendant, a policy that helps explain its appeal to cash-starved municipal governments. If these defendants then fail to pay their debts to the company, they can end up in jail. According to the film, that's where Wood may be headed.
Wood was assessed $41 for the ticket and $45 to JCS for fees associated with their "costs." This is how it works. Companies like JCS work out a payment schedule with the debtor which must be strictly followed. In some cases court imposed fines of only $100 turn into long, drawn out financial ordeals costing poor families thousands mostly in private service fees which if not paid can result in jail terms.
Still more outrageous is that most of the time these illegal practices are doggedly pursued even when highly cost ineffective! One example cited by the report of this growing problem makes the point well;
Brennan Center analysis of one North Carolina county’s collection efforts found that in 2009 the government arrested 564 individuals and jailed 246 of them for failing to pay debt and update address information, but that the amount it ultimately collected from this group was less than what it spent on their incarceration.
The ACLU also published as more recent and focused report on the state of Ohio in April 2013 in which it detailed the abuses occurring there. Most of the evidence coming to light is still largely anecdotal and case by case as debtors' prison is a very new phenomenon. Yet it is quickly growing where it already exists. The 2013 report examined eleven counties in Ohio finding especially egregious violations in seven of them. The report points out;
Courts in Huron, Cuyahoga, and Erie counties are among the worst offenders. In the second half of 2012, over 20% of all bookings in the Huron County Jail were related to failure to pay fines. In Cuyahoga County, the Parma Municipal Court jailed at least 45 people for failure to pay fines and costs between July 15 and August 31, 2012. During the same period in Erie County, the Sandusky Municipal Court jailed at least 75 people for similar charges.
One of the reasons this has become a larger and larger problem is that due process rights of defendants are violated by directing hearings on these matters to "mayors' courts" which are neither courts of record or regular trial courts under the supervision of the Ohio Supreme Court. They are state courts established by municipalities originally to hear mostly traffic cases in order to relieve the overburdened circuit court system. Now they've become a way to circumvent due process and deprive the poor of a jury trial. A magistrate appointed by the Mayor presides over the court instead of a judge and there is no jury to decide guilt or innocence. Such courts are clearly being used in an unconstitutional fashion! Currently, at least 318 jurisdictions in Ohio try debtor's cases in mayors courts. The ACLU report discusses how the state of Ohio abuses the system in order to violate the rights of poor debtors;
Ohio law makes perfectly clear the rights of defendants and the obligations of Ohio courts. Nevertheless, according to Ohio Public Defender Tim Young, municipal courts in Ohio often ignore these laws in three ways: •holding defendants in contempt for failure to pay fines and costs without due process, notice, or counsel; •ordering defendants to “pay or appear,” and issuing arrest warrants for those who fail to comply; or •jailing defendants who are too poor to pay their court costs or restitution. Many Ohio mayors’ courts use similar practices to incarcerate individuals for failure to pay fines, and mayors’ courts operate with even less accountability or oversight than do municipal courts.
ACLU investigators in Ohio consistently witnessed due process violations in dozens of debt proceedings. The report asserts;
In-person court observation likewise demonstrated a court that openly disregarded the legal rights of defendants. ACLU of Ohio staff members attended several contempt hearings in the Norwalk Municipal Court, weekly occurrences in which as many as 30 people faced contempt hearings for failure to pay court fines, and observed a process that did not make even a pretense of compliance with Ohio law. Instead, the court rushed debtors through a truncated process leading, invariably, to a sentence of “pay or sit in jail.” With some variations, this basic approach is followed in many counties across Ohio.
At the moment, most of this abuse of the legal system at the state and local level regards debts owed state and local government. Cases of debtors thrown into prison for privately owed debts that are still considered civil matter is relatively rare. Reworking the system so that debtors are increasingly made criminally liable for debts owed to private sector creditors seems to be a clear option if the authorities enjoy widespread success with LFOs owed to government. It almost seems as though what is going on in places like Ohio can be considered a pilot program for the real endgame, the reworking of the legal system to stealthily restore debtors prisons which have been a dead letter in America for nearly two centuries. Could it be that debtors prison is late capitalism's proverbial Sword of Damocles over the middle class and especially working poor?
We know that bankruptcy laws have been changed to favor creditors. The 2005 bankruptcy reform law made bankruptcy more difficult and costly for consumers while increasing credit card company profits. Lenders figure financial delinquency rates into their fees and interest rates to begin with so that a law further advantaging lenders at the expense of the middle class is really unnecessary except as another piece of special interest legislation to benefit the rich. We also know that bankruptcy and mass debt write downs, done in an orderly and organized manner, can actually help the economy move forward by restoring spending and growth. But we seem to be moving in the opposite direction. What we have instead is a new form of oppression that is as egregious as any found in Victorian England!
As the crisis of late capitalism deepens and the socioeconomic divide worsens, democratic rights formerly taken for granted begin to be eroded as the rich seek to extract ever more surplus from the poorest elements of society. The new debtor prison phenomenon is symptomatic of how widening economic inequality erodes democracy and invites deepening oppression. A progressive backlash is required to restore the legal rights of the working poor and middle class as well as an array of policies to bridge the growing economic gap caused by three decades of supply side economics and union busting. Economic and political equality go hand in hand. No highly unequal society has ever sustained democratic institutions, practices and rights for long. The new debtors' prisons are not just a symptom of growing economic inequality. They are a dangerous harbinger of the collapse of our democratic system.