Theoretically speaking, debtors’ prisons have been explicitly outlawed by the United States Supreme Court since Bearden v. Georgia in 1983. As a practical matter, however, debtors’ prisons are alive and well. In fact, a 2010 study by the Brennan Center for Justice found that, of the fifteen states with the highest prison populations, all fifteen have jurisdictions that arrest debtors for failure to pay or failure to appear for a debt hearing. Although some states have started to take legislative action to remedy debt collection procedures, the issue is far from resolved.
Debtors’ prison-type situations are primarily triggered when a debtor fails to respond to a court order. By applying current debt collection rules, creditors are able to force debtors into difficult situations. One common method occurs when a creditor files a series of requests for the debtor’s examination before the court. These examinations often include receiving additional information for the creditor such as the debtor’s bank or employment records. If a judge honors these requests, which is common in creditor-debtor situations, then the debtor is forced to appear before the court on multiple occasions for the examinations. People in debtors’ prison-type situations are often unable to take off of work on several occasions, which results in the failure to attend one of the examinations. Thus, once a debtor fails to attend, the creditor seeks a body attachment forcing the imprisonment of the debtor until the next hearing. Once the debtor is imprisoned, however, he or she may pay bail, which is often the amount owed to the creditor and therefore typically turned over to the creditor upon the debtor’s payment.
As consumer debt continues to increase nationwide, debtors’ prison issues will continue to arise unless state legislatures intervene. For more information about debtors’ prisons, check out this recent Huffington Post article, as well as the Brennan Center for Justice’s study.