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Swamp Water Jurisprudence: Debtors’ prisons haven’t gone away


by Judge Dennis Challeen

Most of us have heard the old saying “They tossed him in the clink.” We often assume “clink” means the sound the jail bars make when the doors are slammed shut behind an offender. But not so; to be historically accurate, it refers to London’s infamous Clink Debtor’s Prison located on Stoney Street, which also brought about the saying “Stone broke.”

England’s debtor prisons were terrible places to reside. The inmates had to pay the debt in full and also pay for their keep while imprisoned. Unless friends or relatives rescued the debtor, there was no escape except death or some arrangement with the creditors, who often had little or no pity.

During colonial times we inherited debtors’ prisons from England and they remained with us through our revolution and constitutional convention, and continued until 1833.

No one was exempt from America’s debtors’ prisons. Robert Morris, a founding father who signed our Declaration of Independence, used his private funds to pay General Washington’s troops at a critical time; and signed our Constitution, adopted our $ sign for official documents, and was very wealthy until he lost his fortune in land ventures. He went to debtors’ prison and it took an act of Congress to get him out.

James Wilson, also a signatory of The Declaration of Independence, and associate justice on the Supreme Court, served time in debtors’ prison. “Light-Horse” Harry Lee, a Revolutionary War general and father of Southern Civil War General Robert E. Lee, was also imprisoned for unpaid debts.

During the 1800s debtors’ prisons became increasingly unpopular and considered un-American; thus Congress passed bankruptcy laws, relieving private debts if the debtor forfeited most of his assets.

Thus today ordinary private and business loans, bills and some court judgments, called civil debts, are all dischargeable in bankruptcy court and a debtor need not fear going to jail like our ancestors endured. (College student loans cannot be discharged by bankruptcy because Congress says so; however the student debtor can’t be jailed for non-payment either).

Debts to governmental sub-divisions (states, municipalities, IRS etc.) fell through the cracks because they’re called something else – such as fees, fines, penalties, taxes and court costs. These kinds of debts can lead to jail time if a person fails to abide by a court order and has no excuse provided by law. Whether you go to jail or not often depends upon the determination of a local judge who decides whether the debtor has made reasonable efforts to comply. (It’s often been said that the lowest court of the land is the highest court until overruled by an appellate court; and filing an appeal is neither cheap, easy nor done quickly.)

There is now a movement by the public defenders office of San Francisco to abolish the bail-bond system in California and nationally because the “Bail system unconstitutionally treats poor and wealthy suspects differently even when charged with the same crime.” The wealthy suspects with access to money will go free pending trial while the poor suspects remain in jail.

When you read where an offender has pleaded guilty and received “time served” it usually involves a negotiated plea deal where the defendant who can’t raise bond will plead to something whether it can be proven or not. Immediate freedom is a very attractive option. Those who can post bonds are not vulnerable to these pressures.

A federal court in New Orleans will determine whether jailing a person for not paying court fines and costs is an unconstitutional “debtors’ prison” that denies citizens equal protection under the law.

It shouldn’t surprise anyone that money has a large impact on the criminal justice system. Money gains release on bonds, and hires private experienced lawyers who in turn hire investigators and expert witnesses.

Should the poor escape responsibility simply because they are poor?

Court-ordered child support is a debt that a child’s living expenses usually depend upon. The courts in Minnesota can order non-custodial parents to be brought before the court to determine their financial situation. Failure to comply can result in jail with possible work release and the wages turned over to the court.

It may surprise many that there are times when a chronic property offender “jumps bail,” skips town and takes off for parts unknown. It’s not uncommon for many state prosecutors around our nation to request a warrant for arrest but add the words “Will not extradite.” (This means if the accused returns to his home state on his own he will be arrested and tried. But it also means tax money will not be spent to bring him back … good riddance … he’s yours to put up with!)

Sometimes the “good guys” don’t want to give some “bad guys” their “day in court” and the absconders find themselves effectively “banished.”


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