State Bans on Debtors’ Prisons and Criminal Justice Debt

This Note makes the case for considering state constitutional and statutory prohibitions on debtors’ prisons alongside Bearden v. Georgia claims in legal advocacy opposing excessive fines and fees. All but nine states have constitutional provisions prohibiting imprisonment for debt, and the nine states that don’t – Connecticut, Delaware, Louisiana, Maine, Massachusetts, New Hampshire, New York, Virginia, and West Virginia — all have statutory prohibitions against the practice. Although none of these provisions were originally enacted to prevent imprisonment for criminal justice debt, they can be used to attack the problem, making imprisonment for some criminal debts subject to both federal and state restrictions.

Part I describes the contemporary problem with criminal justice debt. Part II covers a range of preexisting federal constitutional limitations on imprisonment for criminal justice debt. Part III introduces state bans of debtor’s prisons and argues that they should be held to apply to fines for infractions, like traffic tickets, costs, and civil debts — both as a matter of sound interpretation of state law and as a matter of federal equal protection doctrine. Although traditional fines and restitution are outside the scope of the state bans, this proposal would nonetheless engage with the most problematic types of criminal justice debt. Part IV argues that advocates should subject the new debtors’ prisons to both Bearden claims and these state bans.

You can read the full text here.

Bearden represents a powerful tool for change, yet state law bans on debtors’ prisons could provide even greater protections for certain criminal justice debtors where the state’s interest in collecting isn’t penal. Bearden and imprisonment-for-debt claims could operate side-by-side in a manner that’s both administrable and functionally appealing.

Christopher D. Hampson
Harvard Law Review, 129 Harv. L. Rev. 1024