A CBS MoneyWatch article by Alain Sherter entitled Jailed for $280: The Return of Debtors’ Prisons is just an awful piece of hack journalism – burying the critical facts to as to create a more emotionally compelling narrative.
It leads the reader to believe that debtors are being imprisoned because they owe money. You have to get to the third paragraph to find out that the individual isn’t, in fact, being jailed for owing money; notwithstanding the headline saying “Jailed for $280”.
Under the law, debtors aren’t arrested for nonpayment, but rather for failing to respond to court hearings, pay legal fines, or otherwise showing “contempt of court” in connection with a creditor lawsuit. That loophole has lawmakers in the Illinois House of Representatives concerned enough to pass a bill in March that would make it illegal to send residents of the state to jail if they can’t pay a debt.
And, even when the story kind of gives you the facts, it puts contempt of court in scare quotes and then calls the process a “loophole.” It’s not a “loophole.” The judge tells you to come to court, you disobey, and, guess what? The judge has the power to make you come to court and testify. That’s a feature of our legal system, not a bug. If you blow off a court order, you’re asking for trouble. The order is not an order to pay money — it’s an order to show up and testify. Poor people can answer questions too.
Should have gone to the original, because that is a hacked down piece:
http://www.cbsnews.com/8301-505247_162-57416794/ill-lawmakers-target-practice-of-jailing-debtors/
“The Illinois bill would require court appearance notices to be served to a debtor’s home, rather than merely mailed. It would require arrest warrants to expire after a year, and it would return most bail money to the debtor, rather than allow it to be used to pay off the debt.”
I suppose it’s helpful if they actually get the legal notice, and it’s not disguised as junkmail.
“The bill, which has passed the House, is supported even by groups representing debt collectors and their attorneys, who agree with Madigan that some judges and attorneys have gone too far. Judges will retain the discretion to issue arrest warrants and to jail debtors for contempt.”
I guess you’re not one of the supporters, then?
Disguised as junk mail? I suppose some collectors could be doing that; but, I’ve had more than one debtor flat out tell me they throw all their bills in the trash. They can’t pay it, they don’t want to deal with it.
And, really, I can see not wanting the debtor to show up for the trial. You get your default and judgment without hassle. But, debtors don’t get thrown in jail for that. You absolutely want the debtor to show up for post-judgment collection hearings — that’s your best chance to discover income and assets that can be applied to the judgment. So, I doubt “junk mail camouflage” is really to blame for the non-appearance in most cases.
I’d only support returning bail money to the debtor where it constitutes exempt property. Most states have a certain amount of cash that is exempt from execution. If the exemption amount is $300 and the bond was $500; I don’t see why the judgment creditor can’t get at the remaining $200, just like if they’d frozen that amount in the bank.
Maybe I’m reading these things the wrong way, but I almost feel like there is a subtext where the judgment debtor ought to be given a “sporting chance” to hide his or her income and assets from creditors and that, if you force debtors to tell creditors what they have and where it is, it unfairly deprives the debtor of that chance. Like a creditor is only entitled to be paid if they can find the assets on their own.
“The Illinois bill would require court appearance notices to be served to a debtor’s home, rather than merely mailed. It would require arrest warrants to expire after a year, and it would return most bail money to the debtor, rather than allow it to be used to pay off the debt.”
There are 3 distinct policy arguments here:
1. “the Illinois bill would require court appearance notices to be served to a debtor’s home, rather than merely mailed”
Service is much more expensive than mail. Do we have a bunch of people being arrested who haven’t gotten their mail after not appearing in court the first time? If so, then maybe this makes sense, but my understanding is that incarceration is a last resort for repeat offenders who regularly fail to appear. (Doug might know more considering his legal practice area)
(2) “It would require arrest warrants to expire after a year.”
Why is this a good thing? It seems like this just increases the burden for creditors, and makes it easier for a person to avoid a judge’s order without any consequence.
(3) “and it would return most bail money to the debtor, rather than allow it to be used to pay off the debt.”
This is the policy idea that makes the least sense to me. Why would the state have funds of a debtor, knowledge of a valid debt to a creditor, and return the money to the debtor anyway? This is just silly, and creates a terribly inefficient legal system. The idea is that creditors collect on their debts, not spend more paying attorneys to collect than they will receive from the debtor.
By the way, quotes like this: “Yet Illinois isn’t the only state where residents get locked up for owing money” are just false. As Doug stated, you get arrested for ignoring a Judge’s order to appear in court, not for owing money and not paying it.
I think the point is creditors are using thousands of dollars worth of court and law enforcement time/resources to collect hundreds of dollars worth of debt (at an often significant profit margin for the collector).
And sometimes, as in the first example, the debt isn’t even legitimate.
If that’s the point, the news stories aren’t making it well. If the point is that the debt isn’t valid, then the stories should be about the rules of evidence and procedure that apparently allowed a court to conclude that the debt was valid and enter a judgment against the debtor.
Beyond that, I’m not sure I take your point about using judicial resources — pretty much the whole purpose of the civil law is to enforce the rights of one person as against another person. I’m not sure why that’s objectionable when it comes to enforcement of contract rights.
Yeah, the article does do a poor job. Though I assume in the first case, it was cheaper for the woman to pay the $600 than it was to prove she didn’t owe the money in the first place.
If that’s the case, something is broken.
And I think it’s not so much the using judicial resources period, it’s that coupled with the 30-40% profit being made.
Come on, Doug. You are correct about the Illinois case–that it’s about not showing up for court when ordered to. But you practice in Indiana. And you are well aware that the Indiana Constitution specifically forbids jailing people for debt. And you are well aware that the fiction the courts use to get around this is to jail people for not paying money the court has ordered them to pay — usually in proceedings supplemental, as they’re quaintly called here. That is jailing people for debt, plain and simple. The collectors can attach any thing or bank account they want and can find without offending the Indiana Constitution. But the pitching people in jail for not paying a debt that a court has told them to pay, however slowly, is still pitching them in jail for debt. There is no contrary argument that passes the laugh test. And it really demonstrates Indiana’s own court’s disregard for the state’s constitution.
I strongly disagree. Debt or not, you show up for court, you’re not going to jail. So, you’re not being jailed for having a debt or not paying. Hell, I’m pretty sure one or two people who showed up for a proceeding supplemental even lied under oath without getting thrown in jail.
“Debt or not, you show up for court, you’re not going to jail.”
But if you believe Pickle’s account below, that’s not true.
You can argue the technicality all you’d like, but people aren’t as dumb as you seem to think they are.
Lighten up, Francis.
You call me Francis again, and I’ll kill ya.
By Pickle’s account, the person wasn’t jailed for not paying a debt, the person was jailed because they were a dumbass, and didn’t comply with the judge’s order to actually submit the application, not just fill it out and give it to the judge.
Even Doug had a problem with the order itself.
I share Doug’s concern for such an Order. That being said, non compliance with any Order is not a wise move.
I heard a story of a casually dressed attorney that was told next time he appeared for a court, he should have a tie. The Judge was upset when the attorney wasn’t wearing a tie on his next appearance. When the Judge asked about it, the attorney said its right here in my back pocket. Your order didn’t require that I wear it around my neck, just that I have it.
I predict the attorney in the story didn’t like the judge’s order, but he knew better than not to comply with it.
If I’m not mistaken, the bill in question has something to do with curbing judges from just issuing any jackass order they want. Which is a good thing.
Which brings us back to “yes, you can get thrown in jail even just for showing up to court,” if you haven’t fulfilled some random order to some capricious judge’s satisfaction.
Indiana sends parents to jail all the time for failing to pay child support as if that’s going to make it easier for them to pay the obligation in the future.
Not paying child support isn’t debt, it is theft. From kids. That gets jailtime.
And speaking of, “it’s illegal to do that, so of course it doesn’t happen,” yet end-runs around seem to be found:
http://motherjones.com/politics/2012/04/sweatshop-labor-prisoners-penal-labor
Prison labor seems to be making quite the comeback these days as well.
I was in small claims court a while back and witnessed an interesting variation on this “in jail for debt” theme. A defendant, in his early 20s, had appeared repeatedly over the course of 2 – 3 years, claiming he could not pay a debt because he didn’t have a job. I think the total amount was something like 300$, and he had paid it in miniscule increments and still owed around 100$. The plaintiff was his aunt or something.
Anyway, after the plaintiff told the judge about witnessing the defendant in a bar, spending money, the judge ordered the defendant to submit at least 3 job applications per week, and to bring copies of said applications to his next appearance in court.
I was lucky enough to be present at the follow up hearing as well. The defendant brought original job applications which he had completed but not actually submitted. The judge was unimpressed and threw him in jail.
I agree with the general notion of “not imprisoning folks for debt,” but in this case I think the judge acted entirely properly.
I’m uncomfortable with judges getting into the “you better look for work” business. An individual has the right to remain poor and to not acquire income or assets above the exempt amounts such that his creditors don’t get paid.
More interesting, however, is making the person account for how he came by the drinking money. And not because of any moral objections to someone drinking alcohol. But because that money came from somewhere and, often in my experience, judgment debtors are awfully vague about where their money is coming from.
I get at least one woman a month who says “I’m a stay-at-home mom
and I don’t intend to work until all of my children are married.”
Well how do you support yourself? “My parents and/or boyfriend/hus- band pay my living expenses.” The Judge can’t force them to work
due to the Indiana Constitution.
A body attachment for someone’s arrest should only be good for 180
days – the same as an arrest warrant is valid (which can be renewed), in Indiana.
I’ve seen 80% of the cases where defendants have been ordered to Court for a Pro Supp Hearing skip the Haring. That’s typical when the Sheriff’s dept in a county is weak about looking for civil offenders. Some Judges do require personal service on either the pro supp or the Rule To Show Cause before issuing a body attachment rather than merely door knob rubber-band service.
We could return to the old Roman Law of Secare Partis (perhaps apochryphal) where the creditor had the right to kill or sell the debtor into slavery.
Perhaps the Tea Party will take up this idea in the emerging legal fight over the high level of student debt and impending defaults. Maybe the proceeding could be like a Sheriff’s Sale. You bid in the amount of your debt and the debtor know works for you for free.
No, that would be more like a corporate internship.