The 18th-century debtors' prison at the Castellania in Valletta, now the offices of the Health Ministry in Malta
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 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 labour or secured outside funds to pay the balance. The product of
their labour 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.
History
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.
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
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 has signed but never ratified Protocol 4.
France
France allows for contrainte par corps, now denominated contrainte judiciaire,
for money owed to the State by solvent 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.
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. 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 debtors' 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 number 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.
England and Wales
A mid-Victorian depiction of the debtors' prison at St Briavels Castle.
In England, during the 18th and 19th 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 England and Wales,
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".
A form of debtors' prison still exists in England, whereby it is still possible to be sent to prison for non-payment of Council Tax (a form of property tax). Imprisonment for non-payment of council tax is not competent (i.e., applicable) in any other nation of the United Kingdom.
Scotland
Imprisonment
for the non-payment of debt was competent at Scots common law, but the
effect of imprisonment for such stood in marked contrast to the position
in England even after the execution of the Treaty of Union in 1707. As
Viscount Dunedin observed in 1919, it was 'in direct contradistinction
to the view of the law in England, that imprisonment was in no sense a
satisfaction of the debt';
the purpose for imprisonment for debt was not to discharge the
obligation to pay, but rather to act as a compulsitor to force the
debtor into revealing any hidden assets. The Scots law allowing the
imprisonment of debtors was grounded in large part by an Act of Sederunt
of 23 November 1613, which introduced the process of 'horning' whereby
the creditor would demand the payment of the debt by a certain date. If
the debtor did not satisfy the payment of the debt within this
stipulated time-period, the creditor could have the debtor 'put to the horn'
by a messenger-at-arms. The execution of horning would have to be
registered in the General Register of Hornings in Edinburgh. On
registration, a warrant for the arrest of the debtor could then be
issued.
The formal process of 'horning' was not formally abolished until the
passing of s.89 of the Debtors (Scotland) Act 1987 (c 18), though in
practice imprisonment for the non-payment of debts had ceased to be
relevant in Scotland since the passing of s.4 of the Debtors (Scotland)
Act 1880 (c 34). Imprisonment remains competent in cases in which a
court order, or order ad factum praestandum is breached by a debtor.
While imprisonment for debt was competent in Scots law, it was
provided that debtors who were within the bounds of Holyrood Park (the
whole of which was deemed a sanctuary) were exempt, and accordingly,
till the abolition of imprisonment for debt, many debtors lived in
lodgings within the bounds of the park. Such persons were subject to the
Bailie of the Park, who had power, in certain cases, to imprison them
himself, in the Abbey Jail.
Greece
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.
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.
India
The Negotiable Instruments Act, 1881,
as amended, contains provisions for criminal penalties, including
imprisonment, 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.
Malta
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
Historic preservation
- 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 "gaol [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 a 2019 report by the Lawyers' Committee for Civil Rights Under Law
argues that debtors' prisons are likely to appear in states like
Arkansas where many people live in poverty and are unable to pay fines
and fees, where poor record-keeping exacerbates challenges faced by
defendants and where arrest warrants and drivers license suspensions
make it even harder for people to pay off court-imposed debt.
Modern examples
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, Richard 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.
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