Jail Without Crime

The  WSJ Law Blog wrote about a phenomenon that most think is all but extinct in the United States, debtor’s prison.  Guess what?

More than a third of all U.S. states allow borrowers who can’t or won’t pay to be jailed. Judges have signed off on more than 5,000 such warrants since the start of 2010 in nine counties with a total population of 13.6 million people, according to a tally by The Wall Street Journal of filings in those counties. Nationwide figures aren’t known because many courts don’t keep track of warrants by alleged offense. In interviews, 20 judges across the nation said the number of borrowers threatened with arrest in their courtrooms has surged since the financial crisis began.

This is somewhat misleading, as the warrants are issued for the failure of debtors to appear and being held in contempt, not simply because there is a debt.  Still, but for the debt, there would be no compulsion to appear.  No matter how one spins it, it’s all about the debt.

The unspoken problem is that debt collection has become a cesspool, with failed service, bad information generating flawed complaints and the wrong people being subject to unwarranted litigation.  The news about these problems is pervasive, but there has been little mentioned about the consequences, the jailing of those whose never knew they were in trouble to begin with.

In September 2009, Jeffrey Stearns, a concrete-company owner, answered a knock at the door from a Hancock County, Ind., deputy sheriff. The deputy was holding a warrant to arrest Stearns for not paying $4,024.88 owed to a unit of American International Group Inc. on a loan for his pickup truck.

After being handcuffed in front of his four children, Stearns, 29 years old, spent two nights in jail, where he said he was strip-searched and sprayed for lice. Court records show he was released after agreeing to pay $1,500 to the loan company. “I didn’t even know I was being sued,” he said, though he doesn’t dispute owing the money. “It’s the scariest thing that ever happened to me.”

This isn’t about being sympathetic to those who lived high on the hog on someone else’s money, then ran from their responsibility when the bill came due.  A debt is a debt, and repayment is part of the obligation that one undertakes when accepting the money.  If a loan was taken foolishly, without intention of repayment, then they deserve to face consequences.\

But those consequences don’t include arrest and incarceration. 

Most of the people unable to repay their debts aren’t intentional deadbeats, but people who have been swept up in the very same economic collapse that affected everyone.  The businesses to whom the debt is owed know it.  The judges ought to know it too.  That circumstances have precluded a person from repaying (you can’t get blood from a rock) doesn’t mean that the lender isn’t harmed or isn’t due repayment, but that the debtor isn’t malevolent, but without the power to comply.  We don’t jail people for misfortune.  Not even foolish misfortune.

In those instances where a debtor engaged in fraud, accepting money with no intention of ever repaying, the situation is different.  Fraud may well be a crime, and should that be the case, then the criminal law provides recourse.  Let the debtor seek the aid of prosecution, affording the debtor and alleged criminal the full panoply of rights and protections given anyone accused of a crime.  If fraud is proven, the impose the punishment appropriate for the crime.  Not because it’s a debt, but because it’s a crime to defraud.

The rationalization of lawyers representing lenders, assuming they aren’t the ones suing the wrong people without proper papers, minimal diligence and a modicum of regard for misapplied process, is severely misguided.  They explain that the debtor owes money and they are entitled to compel the miscreant to come to court and disclose the whereabouts of their assets, upon pain of incarceration.  This is an anachronism that, sadly, remains part of our common papers, the old fine or imprisonment language we use to make people do as we demand.

This is nothing more than a throwback to the debtor prison days, when cash was king and the poor deserved whatever they got.  It’s time we adjusted both the language and the reality to reflect the fact that we no longer jail people for debts.  Yet that doesn’t seem to be the level of concern.

But now a backlash is building against use of the debtor’s prison. It’s a reaction to sloppy, incomplete or even false documentation that can result in borrowers having no idea before being locked up that they were sued to collect an outstanding debt.

Certainly those who are jailed due to sloppy, incomplete or false documentation shouldn’t be.  That this is characterized as a mere “backlash” is outrageous.  The idea of jailing someone as a product of a wrong committed by the party seeking the jailing shouldn’t present any question at all.  Of course it’s wrong, and this should never happen or be allowed to happen.  This isn’t a backlash at all, but a gaping flaw in the legal system that demands the immediate attention of the courts and a complete fix.  Even this appears to be mired in controversy, though there should be nothing controversial about it.

In the meantime, what about instances where the problem isn’t sloppy, incomplete or false documentation?  This doesn’t appear to be of sufficient concern to the courts to put a stop to the jailing of debtors.  Few of us realized that this nation, with an incarceration rate that makes Banana Republic dictators chuckle, still has debtor prisons.  We do, and we have judges willing to sign the warrant to put the poor in jail for being poor. 

While we fight for those who are accused of crime to prevent them from going to jail, we don’t even notice those who are going to jail without being accused of any crime at all.  Anybody have a nice platitude to justify this?

16 thoughts on “Jail Without Crime

  1. Max Kennerly

    A lot of my pro bono involves defending people who have been sued for credit card debts they want to pay but can’t. I have never, ever seen a case that didn’t involve “sloppy, incomplete or false documentation.” In most of the cases, the “debt” is evidenced by nothing more than a printout which has a number on it — no identification of the debt holder, where the debt originated, or the address of either the debtor or collection agency. In more than a few of those, the address listed for the debtor was wrong. In a couple, the name of the debtor was wrong.

    Can you imagine being arrested because a debt company falsely had your name on someone else’s debt? There’s nothing stopping that from happening but the diligence and good faith of collection lawyers.

  2. SHG

    I’ve had occasion to do so as well, and was appalled at the absence (not lack, but total absence) of diligence or paperwork in the hands of lawyers doing debt collection work. As you say, it’s merely some unknown party’s printout. At best, it’s only as good as the data input by some backoffice worker, who may get the spelling right.  And yet everyone along the line mindlessly signs off on it, if it’s actually signed at all.

    Absolutely appalling. 

  3. Patrick

    I’d like to play devil’s advocate (I did do civil lit for much of my career, after all).

    You mentioned that most of these examples involved warrants for failing to appear at hearings. So far as I know, only Nevada has true debtors prison.

    Even in cases lacking fraudulent intent, there exist a segment of the population that believes the failure to repay debts is limited to some angry phone calls and a ding on your credit report, but no real consequences. This attitude works to the detriment of someone like me, who believes in honoring his obligations and has the ability to pay.

    When I sold my house for more than $100k less than I paid for it 2 years earlier, my bank refused to even discuss a loan to cover the mortgage balance since I was current on my payments. So I had to be a man, buck up and write a monstrosity of a check. It sucked, but in the end it was better than the alternative.

    My point is this. If you truly can’t pay, there are procedures for protecting yourself, but you’re not excused from coming forward and answering for your debts. Be a man, step up and say, “this is me, I’m broke.”

    I’m not saying that incarceration is always warranted, but I have learned that courts do prefer their orders not be ignored.

  4. SHG

    No need to play devil’s advocate. I’m with you all the way to the jailhouse door.  I stop there.  Aside from that, I’m 110% behind you on personal responsibility.  I just don’t reach the point of jailing someone because they can’t pay their debts, as long as there was no crime involved.

  5. Patrick

    Bench warrants for no-shows in civil matters were fairly common (esp in child support cases) when I worked as a bailiff. But they usually weren’t executed. If you got pulled over and the cop bothered to run your name, you might get hauled in.

    Actually running out and hunting down scofflaws is either a new phenomenon, or just getting attention because there’s more deadbeats, and thus more scofflaws.

    Either way, I took away that they’re jailing people for ignoring subpoenas, not failing to pay. Maybe I need to read again.

  6. SHG

    That was my takeaway as well. My issue is that people who ignore a subpeona over a debt don’t anticipate/believe that anyone would jail them over it.  The language is in there, but nobody really thinks it could happen, even assuming the subpeona is properly served, the summons and complaint were properly served, etc., all of which is itself a shot in the dark.

  7. Patrick

    Well, people should take orders from the guys in robes seriously. Of course civil disobedience is sometimes appropriate, but just ignoring it is always a bad idea.

    As to the debt collectors, if you draw upon the court’s power to compel cooperation, and you haven’t followed the correct procedure TO THE LETTER, the punishment should be severe.

  8. Harry Styron

    A peculiar man named Eldon Bugg was wrongfully locked up for a debt and the Missouri Court of Appeals ordered his release. Bugg has continued to exasperate federal and state courts with his unusual behavior. He’s worth a Google.

  9. Jeffrey Deutsch

    SHG, how would you enforce a judgment against someone who does not appear for interrogatories, otherwise respond to the judgment creditor or court or have known paychecks or bank accounts to garnish?

    Meanwhile, a few years ago the Boston Globe did a series: “Debtors’ Hell” – including threats of jail. Anyone who wants the URL, please drop me a line.

    Jeff Deutsch

  10. John David Galt

    I *wondered* how the child support enforcement people had gotten away with recreating debtors prisons. I hope that when we manage to really abolish them, those cases are included.

  11. SHG

    You ask the wrong question, Jeff.  If you want to be really effective in enforcing a judgment, then round up the judgment debtors children and shoot them, one after another, until he spills his guts.  Seem a bit harsh?  But very effective.

    The question isn’t whether jailing people is an effective means of forcing them to do something, but whether jailing people when their underlying “wrong” is failure to pay a debt is a proper or excessive use of government fiat.  My point is that it’s excessive. Others might think shooting the kids is the way to go because it’s even more effective.  It’s a matter of priorities and propriety, not effectiveness.

  12. Jeffrey Deutsch

    Hello SHG,

    That’s a nice straw figure you’ve got there.

    With apologies to Sir Isaac Newton and Frederick Schauer, for every slippery slope there is an equal and opposite slippery slope. Another way of putting it is that the price of preventing a rule from ever being over-inclusive is seeing it become radically under-inclusive, and vice versa.

    Are you prepared to let anyone skip out on their debts if their judgment creditors don’t already know about their jobs or bank accounts? That’s what never jailing anyone under circumstances related to debt boils down to.

    We can certainly make common-sense judgments between those who can’t pay and those who won’t pay. We can only do that for those who show up for interrogatories and other court proceedings.

    You don’t need me to tell you that the rules of civil procedure reflect trade-offs that are resolved differently in different jurisdictions.

    In all jursidictions, however, at the end of the proverbial day we have to say “Hey, John Doe was properly served with the summons and complaint, didn’t show up and now he’s got a default judgment against him. The same address was used to send him interrogatories/a summons for oral interrogatories, the mail wasn’t returned but yet he still hasn’t shown up. It’s not guaranteed that he received these things, let alone is trying to avoid us, but it’s the way to bet and we have no better means of finding out for sure.

    “We can garnish paychecks and bank accounts. Thing is, the whole point of those interrogatories was to enable the judgment creditor to find those out, so unless the creditor wants to shell out a wad of cash to a private detective with no guarantee of success – let alone reimbursement – we’ve got a Catch-22 here.

    “Our choice now is, (1) send people with guns to lay hands on him and take him before a judge, by whatever force is necessary, until he agrees to resolve the matter legally or (2) allow Mr. Doe an effective freelance, unilateral bankruptcy on this debt.”

    What’s your choice, SHG?

    Jeff Deutsch

  13. SHG

    Interestingly, the answer to your question is in your question itself, though I suspect cognitive bias prevents you from seeing it.  Here it is:

    Are you prepared to let anyone skip out on their debts if their judgment creditors don’t already know about their jobs or bank accounts?

    Entities don’t lend money out of the goodness of their heart.  They do so because it’s a very profitable venture.  In the zeal to nail down those profits, they fail to collect sufficient information to ascertain the creditworthiness and identify assets for securitization of the loans.  Other judgment creditors are in different situations, but the subject of this post was lenders, not those who obtain personal injury judgments, and an attempt to cover the full panoply of possible collection issues is beyond the scope of a comment that’s tangential to the primary post.

    So how is it possible for a lender to lend without having sufficient information about their debtor to know how to collect upon default?  The fault lies solely with the lender, who has chosen to pass out money without adequate diligence.  To argue that the lender’s carelessness justifies jailing the debtor is disingenuous.  No slippery slope involved, but there are some very self-serving assumptions.  My gun point, by the way, wasn’t intended to suggest a better alternative but to show the absurdity of your jailing argument.  I see that it wasn’t received in the spirit it was sent.

  14. Jeffrey Deutsch

    Hello SHG,

    First of all, thank you kindly for the free psychological diagnostic service. Clearly your talents are wasted in the law.

    Seriously, the lender-should-have-done-due-diligence question begs certain questions:

    (1) As you know, debtor’s prison poses the same moral issues whether it’s for tort or contract.

    (2) Even many contract cases don’t involve lending. For example, personal services with independent contractors (eg, landscaping, home remodeling, tutoring) don’t require knowledge of the other person’s other jobs (if they have any) or bank accounts.

    Also, medical services – especially but not only emergency services – no longer await the hoary wallet biopsy.

    (3) People change jobs and bank accounts – if they have any in the first place. Especially (but obviously not only) the kind of people who skip out on their debts.

    (4) People change – and that includes their ability to pay their debts. Over the last couple of years, many people’s ability to repay their debts has changed a lot. Mainly to business failures, layoffs, pay cuts and the like.

    Not to mention that, under such circumstances, some people bounce checks…and some of them lose their checking accounts as a result.

    Good risks don’t always stay that way.

    (5) Even careless lenders – who may have been trying to avoid looking like they discriminate against the disadvantaged – have rights too.

    Last but not least, last time I checked a debtor is only supposed to be sent to jail once they’ve been sued under governing civil procedure, which is supposed to involve notice and the opportunity to defend themselves*, had a judgment issued against them, been sent or summoned to answer interrogatories and not availed themselves of the chance to let the judgment creditor and the court know they can’t pay the debt.

    Of course, Murphy’s Law applies. Whenever foul-ups or worse appear, let’s fix those specific problems, and help many other people in the bargain.

    Last but not least, you haven’t actually answered my question. Given a judgment creditor who does not know the judgment debtor’s current job** or bank account (if s/he has one), where said judgment debtor does not respond to interrogatories or to requests to appear therefor, would you force the judgment debtor to appear before you and to resolve the matter legally upon pain of jail, or would you stand by and see the court’s orders (judgment and interrogatories/summons) become so much waste paper?

    [*] Unless they signed a confession of judgment, which is supposed to be clearly marked as such.

    [**] Or if s/he is currently unemployed or already having wages garnished to the limit – which in several states is zero anyway.

    Jeff Deutsch

    PS: I speak as, among other things, a former debt collector – whose main client was diligent about getting job and banking information up front.

  15. SHG

    I see that my not wanting to go into tangential issues didn’t dissuade you at all?  I kinda assumed you were speaking as a former debt collector, and nonetheless find that your cognitive bias prevents you from getting the point. In any event, you’ve had more than your say and I’ve yet to be persuaded that people should go to jail to facilitate the collection of a debt.  Since this isn’t your soapbox and you’ve eaten up plenty of my bandwidth, I’m going to pull the plug on this.  Sorry that I don’t find you the least bit convincing.  No matter how hard this may be for debt collectors, jail isn’t the answer.

    Now had you told me you had been to jail for failure to pay a debt and thought it was a great time and wish you could go back again, that might be more persuaive. 

  16. Jim Majkowski

    Try not paying a traffic fine. In Michigan, there is a statute which provides for civil contempt for non payment of a civil infraction (traffic) fine, and which allows for jail up to 1 day for each $10 of fine. I know personally of a case where someone had a warrant issued for non payment of a $324 fine (default judgment, expired license plate). Later he was jailed for other things as well, but there was a hold on him for this warrant, whose bond was $3700, 10% cash alternative. After he had served some 50 days, I sent a letter to the judge notifying him the man had been held long enough to discharge his fine. The court said it sent a “plea by mail” to him, which didn’t arrive after a week. I went to the courthouse, where the clerk acted as a relay, as I wasn’t important enough for the judge to emerge, and was told the judge said the time was for other matters, and he would stay in jail until the money was paid.
    When criminal fines aren’t paid, it can get worse; one defendant of which I know pled on a deal capping his sentence at the 14 days served. That was in May, 2008. He was also fined $700.00, which he didn’t pay. He was picked up in January 2011, and when arraigned, the arraigning judge ordered him held in jail for a year, less 14 days, or until he paid the $700.00. This guy was receiving $200 per month food assistance.

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