Fighting Modern Day Debtors’ Prisons in the American Justice System

by Johanna Schmidt

Long lasting principles in the American criminal justice system require that it be sensitive to the needs and treatment of people who are indigent.[1]  This sensitivity encompasses all aspects of trials, including access to counsel on direct appeal,[2] transcripts, and court records.[3]

Most importantly, the Supreme Court has continually affirmed that people who are indigent must be fined differently from their wealthy peers. In Tate v. Short, the Court held that “the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.”[4]  This was expanded in Bearden v. Georgia to prohibit revoking a defendant’s probation when her inability to pay a court-assigned fine is due to indigence.[5]  Rather, only those who willfully refuse to pay fines may be imprisoned due to that failure to pay.[6]  Altogether, precedent indicates people may not be jailed simply because they are too poor to pay their fines and fees.

Beyond this, Congress has long maintained that people ought not to be imprisoned for their inability to pay, formally banning debtors’ prisons in 1833.[7]  This makes imprisoning individuals because they cannot pay a fine a violation of actual federal law. However, all fifty states[8] still imprison people due to failure to pay court fines and fees. Partially, this is due to the rising costs, fines, and fees of the justice system. Fines and fees are established by every court; they are typically comprised of the state’s established penalty amounts for the criminal or civil charge at hand, and the local court’s operational fees.[9]  Fees also may entail room and board, fees for public defenders, jail and prison stays for indigent defendants, parole and probation supervision, and payment for electronic monitoring bracelets for people once they are out of jail.[10]  Thus, a person who is indigent may walk out of the justice system with a huge bill and no way to pay it back — increasing the likelihood that she will be imprisoned under the current system.

Beyond the sheer volume of fines and fees, two other underlying causes drive imprisonments of debtors who are too poor to pay. First, many debtors who cannot afford to pay may instead be imprisoned for “failing to appear in court,” “disobeying a court order,” or “contempt of court” — all of which stem from court payment structures instead of direct “failure to pay.”[11]  Second, judges may determine that the individual is “willfully” not paying her fine, rather than being too poor to afford it.[12]  Both of these problems allow for the rise of modern day debtors’ prisons — trapping people who are indigent in the cages of prison cells purely due to their poverty.

The past two years marked an important and necessary upswing in the number of cases filed against modern day debtors’ prison practices. Numerous organizations such as the American Civil Liberties Union (ACLU), Equal Justice Under Law, and the Southern Poverty Law Center have all brought cases fighting against debtor’s prisons.[13]  The Department of Justice also highlighted these issues in its investigation of the police department in Ferguson, MO.[14]  These organizations all call for an end to imprisoning individuals simply due to their poverty, and push instead for vindicating their federal constitutional rights.[15]  Currently, success rates in these cases are high — with many cities and counties entering settlement agreements and creating systemic change to prevent debtors’ prisons from happening in the future. As part of its settlement with Equal Justice Under Law, Montgomery, AL reformed its city court system to prohibit jailing indigent people for their inability to pay their debts.[16]  Similarly, DeKalb County, GA set up standards in its settlement with the ACLU to protect the rights of people who cannot afford to pay court-ordered fines for misdemeanor offenses.[17]

More cases in cities and counties across America have been filed and will be litigated over the course of this year. The ACLU is challenging debtors’ prisons in Biloxi, MS,[18] and Benton County, WA;[19] and Equal Justice Under Law is doing the same in Ferguson and Jennings, MO, Jackson, MS, and New Orleans, LA.[20]  In doing so, these organizations work to promote the principles of Tate v. Short[21] and Bearden v. Georgia[22]: no one who is indigent should be jailed simply because of her indigence. Hopefully this litigation will end the unconstitutional practice of debtors’ prisons around the country once and for all.

[1] See Griffin v. Illinois, 351 U.S. 12, 19 (1956) (“There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”).

[2] See Douglas v. California, 372 U.S. 353 (1963).

[3] See, e.g., Roberts v. LaVallee, 389 U.S. 40 (1967).

[4] Tate v. Short, 401 U.S. 395, 398 (1971).

[5] See Bearden v. Georgia, 461 U.S. 660, 665 (1983).

[6] See id.

[7] The federal government banned imprisonment of debtors in 1833, thus abolishing federal debtors’ prisons. See Joseph Shapiro, Supreme Court Ruling Not Enough to Prevent Debtors Prisons, NPR (Jan. 8, 2015, 10:43 AM),

[8] See id.

[9] See id.

[10] See Shapiro, supra note 7.

[11] See Eli Hager, Debtors’ Prisons, Then and Now: FAQ, The Marshall Project (Feb. 24, 2015, 7:14 AM),

[12] See id.

[13] See Joseph Shapiro, Lawsuits Target ‘Debtors’ Prisons’ Across the Country, NPR (Oct. 26, 2015, 2:49 PM),

[14] See U.S. Dep’t of Justice, Civil Rights Div., Investigation of the Ferguson Police Department (Mar. 4, 2015),

[15] See Shapiro, supra note 13 (quoting Alec Karakatsanis, co-founder of Equal Justice Under Law).

[16] See Shutting Down Debtors’ Prisons, Equal Justice Under Law, (last visited Jan. 13, 2016).

[17] See Nusrat Choudhury, Poverty is Not a Crime, Whether You Live in DeKalb County or Ferguson or Anywhere Else, ACLU (Mar. 19, 2015, 4:42 PM),

[18] Kennedy v. City of Biloxi, ACLU (Oct. 21, 2015),

[19] Fuentes v. Benton County, ACLU (Oct. 6, 2015),

[20] See Equal Justice Under Law, supra note 16.

[21] Tate v. Short, 401 U.S. 395, 398 (1971).

[22] Bearden v. Georgia, 461 U.S. 660, 665 (1983).