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ACLU report: Debtors’ prisons no longer relic of Dickensian past

February 23, 2018

Hoosiers who bounce a check, fall behind in rent, or owe even a few dollars can find themselves arrested and thrown in jail, according to a new report by the American Civil Liberties Union released this week that examines the rise of debtor’s prison in the United States.

The report, “A Pound of Flesh: The Criminalization of Private Debt,” details that although Congress outlawed debtors’ prisons in 1833, people across the country are being arrested and jailed or threatened with jail because they owe money. Driving the trend are collection agencies that are now pursuing debt for one of every three Americans who have a past due bill.

“In reality, private debt collectors — empowered by the courts and prosecutors’ offices — are using the criminal justice system to punish debtors and terrorize them into paying even when a debt is in dispute or when a debtor has no ability to pay,” the report stated.

According to the ACLU, these collectors “flood small-claims and other state courts with lawsuits seeking repayment,” and the courts process the claims with “astonishing speed and little scrutiny.” The agencies win more than 95 percent of these suits because the defendants either do not mount a defense or they do not appear in court because they are unaware they are being sued.

The report pointed to an Indiana case as illustrative of how courts are threatening jail to get individuals to pay.

Herman Button appeared before Perry Circuit Judge M. Lucy Goffinet over $1,865.93 he owed a former landlord. Unemployed and living on disability benefits, he tried to explain to the court he did not have the money to pay off the debt but the judge was not convinced.

“…you’re not hearing me for some reason,” Goffinet told Button. “I’m telling you that, yes you will. You’re going to tell me how you’re going to go about doing that. And I’m not going to accept I cannot, and if the next words out of your mouth are I cannot, Mr. Button, then you’ll sit with Mr. Glenn at the Sheriff’s Department until you find a way that, yes, you can.”

Button then offered $5 a month. Goffinet rejected that and ordered him to pay $25 each month. The Indiana Court of Appeals reversed and remanded the case in 2009, finding the trial court improperly threatened Button with imprisonment for failure to propose a payment plan and imposed a schedule for repayment without any evidence of his ability to meet the obligation.

Judges, the ACLU found, have also issued arrest warrants for people who failed to appear in court for unpaid civil debt judgments. The debtors were then put in jail where they remained until they arrange to pay bail.

Indiana is one of 44 states with laws that allow courts to issue warrants for debtors who fail to appear at post-judgment court proceedings or do not provide personal financial information.

Denise Zencka was arrested in Lake County in 2013 for medical debt related to her treatments for thyroid cancer. She had been staying with her parents in Florida and did not know of the arrest warrants until she returned to Indiana. Still dressed in her pajamas, Zencka was arrested by sheriff’s deputies in front of her three children and taken to the local jail where she was placed in a holding cell with several men.

The report also makes several recommendations to stop what the ACLU sees as due process, equal protection and human rights concerns. Many of the suggested changes are steps states can take through the judicial, legislative or executive actions.

In particular, the ACLU recommended:

• State legislatures enact laws that prohibit courts from issuing arrest warrants in debt collection proceedings;

• State court rules be revamped to prohibit judges from issuing arrest warrants for contempt, either for failure to pay or to appear; and

• State attorneys general take action against check collection companies abusing their contracts with prosecutors’ offices.

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