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NOTES
STATE BANS ON DEBTORS’ PRISONS AND CRIMINAL JUSTICE DEBT
Since the 1990s, and increasingly in the wake of the Great Reces-
sion, many municipalities, forced to operate under tight budgetary constraints, have turned to the criminal justice system as an untapped revenue stream.1 Raising the specter of the “debtors’ prisons” once prevalent in the United States,2 imprisonment for failure to pay debts owed to the state has provoked growing concern in recent years.3 These monetary obligations are not contractual liabilities in the ledger of an Ebenezer Scrooge,4 but sums that the state itself assesses through the criminal justice system. Sometimes called “legal financial obliga- tions” (LFOs), the total debt generally includes a mix of fines, fees, court costs, and interest.5 And unlike civil collection actions (for the most part6), incarceration is very much on the menu of sanctions that the unpaid creditor, usually a municipality,7 can impose.
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 See, e.g., Nicholas M. McLean, Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause, 40 HASTINGS CONST. L.Q. 833, 886–87 (2013); Alexandra Natapoff, Misdemeanor Decriminalization, 68 VAND. L. REV. 1055, 1098–99 (2015). 2 See infra section III.A, pp. 1034–38. 3 See, e.g., Alec Karakatsanis, Policing, Mass Imprisonment, and the Failure of American Lawyers, 128 HARV. L. REV. F. 253, 262–63 (2015); McLean, supra note 1, at 885–91; Campbell Robertson, Suit Alleges “Scheme” in Criminal Costs Borne by New Orleans’s Poor, N.Y. TIMES (Sept. 17, 2015), http://www.nytimes.com/2015/09/18/us/suit-alleges-scheme-in-criminal-costs -borne-by-new-orleanss-poor.html. At the same time, however, legal commentators have been concerned about imprisonment for criminal debt since at least the 1960s. See, e.g., Derek A. Westen, Comment, Fines, Imprisonment, and the Poor: “Thirty Dollars or Thirty Days,” 57 CALIF. L. REV. 778, 787 n.79 (1969) (listing sources). 4 In addition to featuring in DAVID COPPERFIELD (1850) and LITTLE DORRIT (1857), debtors’ prisons lurk in the shadows of Dickens’s classic A CHRISTMAS CAROL (1843). Those who did not pay the debts so meticulously recorded by the shivering Bob Cratchit could have been thrown in prison by Scrooge — part of why he was so hated and feared by his debtors. See CHARLES DICKENS, A CHRISTMAS CAROL AND OTHER CHRISTMAS BOOKS 71–72 (Robert Douglas-Fairhurst ed., Oxford Univ. Press 2006) (“[B]efore [our debt is transferred from Scrooge] we shall be ready with the money; and even though we were not, it would be a bad fortune in- deed to find so merciless a creditor in his successor.”). 5 See, e.g., State v. Blazina, 344 P.3d 680, 680–81, 684 (Wash. 2015); ACLU OF WASH. & CO- LUMBIA LEGAL SERVS., MODERN-DAY DEBTORS’ PRISONS 3 (2014), http://aclu-wa.org/sites /default/files/attachments/Modern%20Day%20Debtor%27s%20Prison%20Final%20(3).pdf [http:// perma.cc/X66N-G5EA] (“[T]he average amount of LFOs imposed in a felony case is $2540 . . . .”); Developments in the Law — Policing, 128 HARV. L. REV. 1706, 1727–29 (2015). 6 In some circumstances, courts can exercise their contempt power to imprison debtors for failure to pay civil debts. See, e.g., Lea Shepard, Creditors’ Contempt, 2011 BYU L. REV. 1509, 1526–27. 7 See Telephone Interview with Douglas K. Wilson, Colo. State Pub. Def., Office of the State Pub. Def. (Oct. 21, 2014) (notes on file with Harvard Law School Library).
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This practice both aggravates known racial and socioeconomic in- equalities in the criminal justice system8 and raises additional con- cerns. First, assessing and collecting such debt may not be justifiable on penal grounds. Instead, it seems to be driven primarily by the need to raise revenue, an illegitimate state interest for punishment, and one that, in practice, functions as a regressive tax.9 Second, imprisonment for criminal justice debts has a distinctive and direct financial impact. The threat of imprisonment may create a hostage effect, causing debt- ors to hand over money from disability and welfare checks, or induc- ing family members and friends — who aren’t legally responsible for the debt — to scrape together the money.10
Take the story of Harriet Cleveland as a window into the problem: Cleveland, a forty-nine-year-old mother of three from Montgomery, Alabama, worked at a day care center.11 Starting in 2008, Cleveland received several traffic tickets at a police roadblock in her Montgom- ery neighborhood for operating her vehicle without the appropriate in- surance.12 After her license was suspended due to her nonpayment of the ensuing fines and court costs, she continued to drive to work and her child’s school, incurring more debt to Montgomery for driving without a license.13 Over the course of several years, including after she was laid off from her job, Cleveland attempted to “chip[] away” at her debt — while collection fees and other surcharges ballooned it up behind her back.14 On August 20, 2013, Cleveland was arrested at her home while babysitting her two-year-old grandson.15 The next day, a municipal judge ordered her to pay $1554 or spend thirty-one days in jail.16 She had no choice but to “sit out” her debt at the rate of $50 per
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 8 See, e.g., WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 2, 6–7 (2011); Karakatsanis, supra note 3, at 254; Natapoff, supra note 1, at 1065. 9 See Natapoff, supra note 1, at 1098 & n.208; Developments in the Law — Policing, supra note 5, at 1734. This concern is amplified by the growing trend toward outsourcing portions of the criminal justice system, such as collection, to private actors like Sentinel Offender Services, a probation company that wields the threat of imprisonment via contract with the state. See id. at 1726–27. 10 See, e.g., Robertson, supra note 3 (describing how a debtor’s mother and sister “scraped to- gether what money they [could]”). 11 See Sarah Stillman, Get Out of Jail, Inc., NEW YORKER (June 23, 2014), http://www .newyorker.com/magazine/2014/06/23/get-out-of-jail-inc [http://perma.cc/5SU8-EF72]. 12 Id. 13 Id. 14 Id.; see also Amended Complaint at 2, Cleveland v. City of Montgomery, No. 2:13-cv- 00732 (M.D. Ala. Nov. 12, 2013) [hereinafter Complaint, Cleveland v. Montgomery], http:// www. s p l c e n t e r .o r g /s i t e s / d e f a u l t / f i l e s / d o w n l o a d s / c a s e / a m e n d e d _ c o m p l a i n t- _h a r r i e t _ c l e v e l a n d _ 0 . p d f [http://perma.cc/Y4CM-99AK]. 15 Complaint, Cleveland v. Montgomery, supra note 14, at 2; see Stillman, supra note 11. 16 Complaint, Cleveland v. Montgomery, supra note 14, at 4.
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day.17 In jail, “[s]he slept on the floor, using old blankets to block the sewage from a leaking toilet.”18
Stories like Cleveland’s have inspired a naissance of advocacy and scholarship that challenge the legal basis for incarceration upon non- payment of criminal justice debts.19 But existing approaches have failed to recognize an alternate potential font of authority: state bans on debtors’ prisons.20 Most commentators have thus far focused on the 1983 Supreme Court case Bearden v. Georgia.21 Bearden held that a court cannot, consistently with the Fourteenth Amendment, revoke parole for failure to pay criminal debt when the debtor has made “suf- ficient bona fide” efforts to pay.22 Bearden established a powerful (al- beit somewhat vague) standard that protects debtors whose inability to pay isn’t willful, by requiring courts to hold ability-to-pay hearings.23 But, as argued below, certain types of criminal justice debtors fall un- der an even higher degree of protection than Bearden provides.
Another type of legal claim should be considered alongside Bearden: one based on the many state constitutional bans on debtors’ prisons.24 These state bans were enacted over several decades in the
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 17 Id. at 7. 18 Stillman, supra note 11. Cleveland sued the city, alleging that Montgomery’s debt collection procedures and her resultant incarceration violated the Alabama and U.S. Constitutions. See Complaint, Cleveland v. Montgomery, supra note 14, at 2–3. They ultimately settled. See Judicial Procedures of the Municipal Court of the City of Montgomery for Indigent Defendants and Non- payment, Cleveland v. City of Montgomery, No. 2:13-cv-00732 (M.D. Ala. Sept. 12, 2014) [herein- after Settlement Agreement, Cleveland v. Montgomery], h t t p : / / w w w . s p l c e n t e r . o r g / s i t e s / d e f a u l t / f i l e s / d o w n l o a d s / c a s e / e x h i b i t _ a _ t o _ j o i n t _ s e t t l e m e n t _ a g r e e m e n t _ - _ j u d i c i a l _ p r o c e d u r e s - _ 1 4 0 9 1 2 . p d f [http://perma.cc/ZAH6-DFQS]. Still, as described below, there’s reason to suspect such set- tlements will not completely solve the problem. Cf. infra notes 55–59 and accompanying text (dis- cussing judicially created solutions in certain states). 19 See infra Part II, pp. 1032–34. 20 See infra Part III, pp. 1034–43. 21 461 U.S. 660 (1983). 22 Id. at 662; see also id. at 661–62. The Court also required that a court consider whether alternate sanctions (such as a restructured payment schedule or community service) could meet the state’s interest in punishment and deterrence before resorting to incarceration. See id. at 672. 23 Under Bearden, what counts as “bona fide efforts” was left unspecified, apart from vague references to searching for employment or sources of credit. See id. at 668. This kind of open- ended standard, taken on its own terms, may generate a number of problems. It may leave too much discretion in the hands of the same legal actors responsible for the state of play. See Recent Legislation, 128 HARV. L. REV. 1312, 1316 (2015). And it seems ill-equipped to protect impover- ished debtors who see no reason to embark upon, much less document, futile searches for credit or employment. 24 While outside the scope of analysis here, Professor Beth Colgan has argued that incarcera- tion for criminal justice debt might also violate the Excessive Fines Clause of the Eighth Amendment. See U.S. CONST. amend. VIII; Beth A. Colgan, Reviving the Excessive Fines Clause, 102 CALIF. L. REV. 277 (2014). Others assert that certain prison conditions arguably vio- late the Cruel and Unusual Punishments Clause or the Thirteenth Amendment’s prohibition on involuntary servitude. See U.S. CONST. amend. VIII; id. amend XIII; Class Action Complaint at 57–58, Jenkins v. City of Jennings, No. 4:15-cv-00252 (E.D. Mo. Feb. 8, 2015) [hereinafter
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first half of the nineteenth century, as a backlash against imprisonment for commercial debt swept the nation. While the contemporary dis- cussion on criminal justice debt often makes cursory reference to this historic abolition of debtors’ prisons,25 the legal literature contains no sustained analysis of whether the state bans on debtors’ prisons might invalidate some of what’s going on today.
This Note takes a first pass at this missing constitutional argument. Part I describes the contemporary problem with criminal justice debt in greater detail. Part II covers a range of preexisting federal constitu- tional limitations on imprisonment for criminal justice debt. Part III introduces the state bans and argues that they should be held to apply to some fines for regulatory offenses, costs, and definitionally civil debts — both as a matter of sound interpretation of state law and as a matter of federal equal protection doctrine. Leaving traditional fines and restitution outside the scope of the state bans, this proposal would nonetheless engage with the most problematic types of criminal justice debt. Part IV explains why it makes good sense to subject the new debtors’ prisons to the two-tiered regulation of both Bearden and these state bans, in the form of new imprisonment-for-debt claims.
I. CRIMINAL JUSTICE DEBT
Since a large portion of criminal justice debt is routed through mu- nicipal courts that aren’t courts of record,26 systemic, nationwide data aren’t easily generated. But out of the mix of disturbing narratives and reports one can distill several common elements. Underlying the debts is a range of crimes, violations, and infractions, including shop- lifting, domestic violence, prostitution, and traffic violations.27 The monetary obligations come under a mix of labels, including fines, fees, costs, and interest, and are generally imposed either at sentencing or as a condition of parole.28 Arrest warrants are sometimes issued when debtors fail to appear in court to account for their debts, but courts of- ten fail to give debtors notice of summons, and many debtors avoid the courts out of fear of imprisonment.29 When courts have actually held
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Complaint, Jenkins v. Jennings], http://equaljusticeunderlaw.org/wp/wp-content/uploads/2015/02 /Complaint-Jennings-Debtors-Prisons-FILE-STAMPED.pdf [http://perma.cc/LM7S-LZW2]. 25 See, e.g., Sarah Dolisca Bellacicco, Note, Safe Haven No Longer: The Role of Georgia Courts and Private Probation Companies in Sustaining a De Facto Debtors’ Prison System, 48 GA. L. REV. 227, 234 (2013). 26 See, e.g., Telephone Interview with Douglas K. Wilson, supra note 7. 27 See id. 28 See sources cited supra note 5. 29 See CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE, INVESTIGATION OF THE FERGUSON POLICE DEPARTMENT 45–50 (2015) [hereinafter DOJ, FERGUSON INVESTIGATION], http:// w w w . j u s t i c e . g o v / s i t e s / d e f a u l t / f i l e s / o p a / p r e s s - r e l e a s e s / a t t a c h m e n t s / 2 0 1 5 / 0 3 / 0 4 / f e r g u s o n _ p o l i c e _ d e p a r t m e n t _ r e p o r t . p d f [http://perma.cc/8CQS-NZ9F].
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the ability-to-pay hearings required by Bearden30 — and they’ve often neglected to do so31 — such hearings have been extremely short, as many misdemeanor cases are disposed of in a matter of minutes.32 Debtors are almost never provided with legal counsel.33 The total amount due fluctuates with payments and added fees, sometimes wild- ly, and debtors are often unaware at any given point of the amount they need to pay to avoid incarceration or to be released from jail.34 Multiple municipalities have allowed debtors to pay down their debts by laboring as janitors or on a penal farm.35 One Alabama judge credited debtors $100 for giving blood.36
The problem is widespread. In Colorado, Linda Roberts’s offense of shoplifting $21 worth of food resulted in $746 of court costs, fines, fees, and restitution.37 Ms. Roberts, who lived exclusively on SNAP and Social Security disability benefits, “sat out” her debt by spending fifteen days in jail.38 And in Georgia, Tom Barrett was sentenced to twelve months of probation for stealing a can of beer.39 But six months in, despite selling his blood plasma, Barrett still couldn’t pay the costs associated with his sentence — including a $12-per-day ankle bracelet, a $50 set-up fee, and a $39-per-month fee to a private proba- tion company — and faced imprisonment.40 A 2010 Brennan Center report flagged problematic “criminal justice debt” practices in fifteen states, including California, Texas, Michigan, Pennsylvania, and New
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 30 See Bearden v. Georgia, 461 U.S. 660, 672 (1983). 31 See, e.g., Complaint, Jenkins v. Jennings, supra note 24, at 43 (“The City prosecutor and City judge do not conduct indigence or ability-to-pay hearings. Regular observers of the City court have never once seen an indigence or ability to pay hearing conducted in the past decade.”). 32 See, e.g., HUMAN RIGHTS WATCH, PROFITING FROM PROBATION 4–5 (2014), https:// www.hrw.org/sites/default/files/reports/us0214_ForUpload_0.pdf [http://perma.cc/Y8BN-GVZ2]; Karakatsanis, supra note 3, at 262. 33 See, e.g., Karakatsanis, supra note 3, at 263–64. 34 See, e.g., ALICIA BANNON ET AL., BRENNAN CTR. FOR JUSTICE, CRIMINAL JUSTICE DEBT: A BARRIER TO REENTRY 18 (2010), http://www.brennancenter.org/sites/default/files /legacy/Fees%20and%20Fines%20FINAL.pdf [http://perma.cc/6SVB-KZKQ]; HUMAN RIGHTS WATCH, supra note 32, at 23. 35 See Class Action Complaint at 1–3, Bell v. City of Jackson, No. 3:15-cv-732 (S.D. Miss. Oct. 9, 2015) [hereinafter Complaint, Bell v. Jackson], https://assets.documentcloud.org/documents /2455850/15-10-09-class-action-complaint-stamped.pdf [https://perma.cc/3CKT-XXX4] (describing reduction of debt at a rate of $58 per day of work); Karakatsanis, supra note 3, at 262 ($25 per day). 36 Campbell Robertson, For Offenders Who Can’t Pay, It’s a Pint of Blood or Jail Time, N.Y. TIMES (Oct. 19, 2015), http://www.nytimes.com/2015/10/20/us/for-offenders-who-cant-pay-its-a -pint-of-blood-or-jail-time.html. 37 Recent Legislation, supra note 23, at 1314. 38 Id. at 1314 & n.25. 39 Joseph Shapiro, Measures Aimed at Keeping People Out of Jail Punish the Poor, NPR (May 24, 2014, 4:58 PM), http://www.npr.org/2014/05/24/314866421/measures-aimed-at-keeping-people -out-of-jail-punish-the-poor. 40 Id.
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York.41 A 2010 ACLU report claimed that required indigency inquir- ies — the heart of the constitutional protection provided by Bear- den — were markedly absent in Louisiana, Michigan, Ohio, Georgia, and Washington.42
And the problem is deeply engrained, at least in some places. The best evidence to date is the Department of Justice’s 2015 report on the Ferguson Police Department. The investigation revealed that Fer- guson law enforcement — including both police and the municipal court — was deployed to raise revenue.43 In March 2010, the city’s fi- nance director emailed then–Police Chief Thomas Jackson:
[U]nless ticket writing ramps up significantly before the end of the year, it will be hard to significantly raise collections next year. What are your thoughts? Given that we are looking at a substantial sales tax shortfall, it’s not an insignificant issue.44
In 2013, the municipal court issued over 9000 warrants for failure to pay fines and fees resulting in large part from “minor violations such as parking infractions, traffic tickets, or housing code violations.”45 The city also tacked on fines and fees for missed appearances and missed payments — and used arrest warrants as a collection device.46
The problem has become especially severe — or has at least drawn increased attention — within the past several years.47 In 2015, non- profits Equal Justice Under Law and ArchCity Defenders sued the cit- ies of Ferguson48 and Jennings,49 Missouri, alleging that they were
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 41 See BANNON ET AL., supra note 34, at 6. 42 See ACLU, IN FOR A PENNY: THE RISE OF AMERICA’S NEW DEBTORS’ PRISONS 17 (2010), http://www.aclu.org/files/assets/InForAPenny_web.pdf [http://perma.cc/2C7C-X56S] (Loui- siana); id. at 29 (Michigan); id. at 43 (Ohio); id. at 55 (Georgia); id. at 65 (Washington). 43 See DOJ, FERGUSON INVESTIGATION, supra note 29, at 3, 9–10. 44 Id. at 10. 45 Id. at 3. 46 See id. at 42, 53. Residents of Ferguson also suffered unconstitutional stops and arrests, see id. at 18, misleading information about court dates and appearances, see id. at 46, and, of course, the death of Michael Brown at the hands of the police in August 2014, see id. at 5. 47 See, e.g., Joseph Shapiro, Civil Rights Attorneys Sue Ferguson over “Debtors Prisons,” NPR (Feb. 8, 2015, 9:03 PM), http://www.npr.org/blogs/codeswitch/2015/02/08/384332798/civil-rights -attorneys-sue-ferguson-over-debtors-prisons (“We’ve seen the rise of modern American debtors prisons, and nowhere is that phenomenon more stark than in Ferguson and Jennings municipal courts and municipal jails . . . .” (quoting lawyer Alec Karakatsanis)); The New Debtors’ Prisons, THE ECONOMIST (Nov. 16, 2013), http://www.economist.com/news/united-states/21589903-if-you -are-poor-dont-get-caught-speeding-new-debtors-prisons [http://perma.cc/5M9N-74HT]. 48 See Class Action Complaint, Fant v. City of Ferguson, No. 4:15-cv-00253 (E.D. Mo. Feb. 8, 2015) [hereinafter Complaint, Fant v. Ferguson], h t t p : / / e q u a l j u s t i c e u n d e r l a w . o r g / w p / w p - c o n t e n t / u p l o a d s / 2 0 1 5 / 0 2 / C o m p l a i n t - F e r g u s o n - D e b t o r s - P r i s o n - F I L E - S T A M P E D . p d f [h t t p : / / p e r m a . c c /MVJ9-Q9CQ]. As of October 2015, the case had survived a contentious motion to dismiss — the judge had initially dismissed, then reconsidered and reinstated, two allegations of unconstitutional imprisonment for debt — and was moving toward trial. 49 See Complaint, Jenkins v. Jennings, supra note 24.
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running the equivalents of modern debtors’ prisons.50 The Ferguson complaint described a “Kafkaesque journey through the debtors’ pris- on network of Saint Louis County — a lawless and labyrinthine scheme of dungeon-like municipal facilities and perpetual debt.”51 Equal Justice Under Law and the Southern Poverty Law Center have also sued a handful of other municipalities,52 and the ACLU has pur- sued an awareness campaign in a number of states, sending letters to judges and mayors in Ohio53 and Colorado.54
Facing this pressure from advocates and litigants, cities, courts, and legislatures have made some changes. The city of Montgomery settled in 2014, agreeing to conduct the constitutionally required hearings, produce audio recordings,55 provide public defenders, and adopt a “presumption of indigence” for defendants at or below 125% of the federal poverty level.56 In Ohio, Chief Justice Maureen O’Connor took rapid action, issuing guidance materials to clarify the procedures trial and municipal judges should take before imprisoning debtors for failure to pay.57 The Supreme Court of Washington confirmed in
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 50 See Complaint, Fant v. Ferguson, supra note 48, at 3. 51 Id. at 7. 52 Two lawsuits against the City of Montgomery have settled. See Settlement Agreement, Cleveland v. Montgomery, supra note 18; Agreement to Settle Injunctive and Declaratory Relief Claims, Mitchell v. City of Montgomery, No. 2:14-cv-00186 (M.D. Ala. Nov. 17, 2014) [hereinafter Settlement Agreement, Mitchell v. Montgomery], http://equaljusticeunderlaw.org/wp/wp-content /uploads/2014/07/Final-Settlement-Agreement.pdf [http://perma.cc/R8S9-HW4N]. As of the time of publication, Equal Justice Under Law had litigated (or is litigating) similar issues against Jen- nings, Missouri; Ferguson, Missouri; New Orleans, Louisiana; Jackson, Mississippi; and Ruther- ford County, Tennessee. See Permanent Injunction, Jenkins v. City of Jennings, No. 4:15-cv-00252 (E.D. Mo. Sept. 16, 2015); Complaint, Fant v. Ferguson, supra note 48; EQUAL JUSTICE UNDER THE LAW, Shutting Down Debtors’ Prisons, http://equaljusticeunderlaw.org/wp/current-cases /ending-debtors-prisons/ [http://perma.cc./56WT-6RLC] (last visited Nov. 23, 2015). 53 See Letter from Christine Link, Exec. Dir., ACLU of Ohio, et al., to Chief Justice Maureen O’Connor, Ohio Supreme Court (Apr. 3, 2013), http://www.acluohio.org/wp-content/uploads/2013 /04/2013_0404LetterToOhioSupremeCourtChiefJustice.pdf [http://perma.cc/R3T5-WPEL]. 54 See Recent Legislation, supra note 23, at 1313 n.13. In 2012 and 2013, the ACLU of Colorado sent letters to Chief Justice Bender of the Colorado Supreme Court and three Colorado municipali- ties. See, e.g., Letter from Mark Silverstein, Legal Dir., ACLU of Colo., and Rebecca T. Wallace, Staff Att’y, ACLU of Colo., to Chief Justice Michael Bender, Colo. Supreme Court, and Judge John Dailey, Chair, Criminal Procedure Comm. (Oct. 10, 2012), http://static.aclu-co.org/wp- content/uploads/2013/12/2012-10-10-Bender-Dailey-Wallace.pdf [http://perma.cc/5F9Y-U7RC]; Letter from Rebecca T. Wallace, Staff Att’y, ACLU of Colo., and Mark Silverstein, Legal Dir., ACLU of Colo., to Herb Atchison, Mayor of Westminster, Colo. (Dec. 16, 2013), http://static.aclu-co .org/wp-content/uploads/2014/02/2013-12-16-Atchison-ACLU.pdf [http://perma.cc/7ZZS-X3RL]. 55 See Settlement Agreement, Mitchell v. Montgomery, supra note 52, at 2–3. 56 See Settlement Agreement, Cleveland v. Montgomery, supra note 18, at 1. 57 See OFFICE OF JUDICIAL SERVS., SUPREME COURT OF OHIO, COLLECTION OF FINES AND COURT COSTS IN ADULT TRIAL COURTS (2015), http://www.supremecourt.ohio.gov /Publications/JCS/finesCourtCosts.pdf [http://perma.cc/43AE-V32F]; see also Taylor Gillan, Ohio Supreme Court Warns Judges to End “Debtors’ Prisons,” JURIST (Feb. 7, 2014, 7:14 AM), h t t p : / / j u r i s t . o r g / p a p e r c h a s e / 2 0 1 4 / 0 2 / o h i o - s u p r e m e - c o u r t - w a r n s - j u d g e s - t o - e n d - d e b t o r s - p r i s o n s . p h p [http://perma.cc/EA4L-BKHJ].
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March 2015 that the sentencing judge must make “an individualized inquiry into the defendant’s current and future ability to pay before the court imposes [criminal justice debt].”58 And in August 2015, Fer- guson Municipal Judge Donald McCullin withdrew almost 10,000 ar- rest warrants issued before 2015.59 As for legislatures, in 2014, the Colorado General Assembly almost unanimously passed a bill requir- ing courts to make ability-to-pay determinations on the record before imprisoning debtors for nonpayment of debt.60 And in 2015, both the Georgia61 and Missouri62 legislatures passed laws addressing the issue.
Perhaps this pushback will resolve the concerns described above. But there are many reasons to think there’s a long road ahead. First, some of the responses leave unresolved the substantive definition of indigence for the purposes of ability-to-pay hearings.63 Without such a definition, discretion is left to the same courts that have been imprison- ing criminal debtors thus far.64 Second, even tightly written laws,65 settlements, and resolutions need to be enforced, which requires ac- countability and monitoring.66 Abolishing the new debtors’ prisons is as much a test of moral and societal conviction as it is of sound draft- ing. And finally (of course) some states haven’t taken much action, if any, to address the issue — nor has it been raised in the federal courts within the last decade, apart from the litigation previously discussed.
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 58 State v. Blazina, 344 P.3d 680, 685 (Wash. 2015). 59 See Krishnadev Calamur, A Judge’s Order Overhauls Ferguson’s Municipal Courts, THE ATLANTIC (Aug. 25, 2015), http://www.theatlantic.com/national/archive/2015/08/judges-order -overhauls-fergusons-municipal-courts/402232 [http://perma.cc/7R4J-CPCZ]. Additionally, the Supreme Court of Missouri recently amended its rules to require municipal judges to push back deadlines or allow installment plans for debtors who couldn’t pay court costs, fines, and fees. See Order Dated December 23, 2014, re: Rule 37.65 Fines, Installment or Delayed Payments — Re- sponse to Nonpayment (Mo. Dec. 23, 2014) (en banc), http://www.courts.mo.gov/sup/index . n s f / d 4 5 a 7 6 3 5 d 4 b f d b 8 f 8 6 2 5 6 6 2 0 0 0 6 3 2 6 3 8 / f e 6 5 6 f 3 6 d 6 b 5 1 8 a 8 8 6 2 5 7 d b 8 0 0 8 1 d 4 3 c [h t t p : / / p e r m a . c c /BTX3-4ERC]. 60 See Recent Legislation, supra note 23, at 1313, 1315. 61 Georgia’s law provides guidance for courts in indigency determinations. See Act of May 5, 2015, 2015 Ga. Laws 422. 62 Missouri’s law clamps down on raising revenue through traffic fines and removes incarcera- tion as a penalty for traffic offenses. See Act of July 9, 2015, 2015 Mo. Laws 453. 63 See Recent Legislation, supra note 23, at 1316–19 (criticizing the lack of such a definition in recent Colorado legislation). 64 See id. at 1316. 65 The Missouri legislation, for example, seems to constrain municipal collection of criminal justice debt within certain domains. See Act of July 9, 2015, 2015 Mo. Laws at 457 (codified at MO. REV. STAT. § 479.353(2) (West, Westlaw through 2015 Veto Sess.)) (prohibiting confinement for traffic violations except in enumerated situations). 66 See, e.g., Telephone Interview with Nathan Woodliff-Stanley, Exec. Dir., ACLU of Colo. (Oct. 23, 2014) (notes on file with Harvard Law School Library); Telephone Interview with Alec Karakatsanis, Co-Founder, Equal Justice Under Law (Apr. 14, 2015) (notes on file with Harvard Law School Library).
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II. FEDERAL CONSTITUTIONAL LIMITATIONS
Legal commentators have long recognized that the federal constitu- tion imposes limits on imprisonment for criminal justice debt under the Equal Protection and Due Process Clauses. This Part outlines those limits, which stem from two main lines of cases in the 1970s and early 1980s, and undergird almost all debt-imprisonment litigation today.
The first line of cases prohibits states from discriminating on the basis of indigence when contemplating imprisonment for nonpayment of criminal justice debt. In Williams v. Illinois,67 the defendant’s fail- ure to pay a fine and costs would have resulted in a term of imprison- ment beyond the statutory maximum.68 And in Tate v. Short,69 the de- fendant’s failure to pay would have resulted in imprisonment when the statute didn’t allow for imprisonment at all.70 The Court struck down imprisonment in each case.71 The third and most discussed case in the trilogy, Bearden v. Georgia, struck down the automatic revocation of parole for nonpayment of criminal justice debt.72 Bearden established a “bona fide efforts” test that asks how seriously one has tried to secure employment and credit, in addition to measuring assets.73 The Bearden line of cases thus endeavors to shield criminal justice debtors making a good faith effort to pay, while leaving willful nonpayment unprotected.74
The second line of cases limits states’ ability to treat civil debtors differently based on the procedural origins of their debt. The Court identified some of those limits in a pair of equal protection cases in the 1970s: James v. Strange75 and Fuller v. Oregon.76
The debtor in James v. Strange owed $500 to pay for a court- appointed attorney and challenged the Kansas recoupment statute un- der which the state had attempted to recover the money.77 The Court struck down the recoupment statute because it failed to provide “any of the exemptions provided by [the Kansas Code of Civil Proce- dure] . . . except the homestead exemption.”78 Avoiding broad com-
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 67 399 U.S. 235 (1970). 68 Id. at 236–37, 240–41. 69 401 U.S. 395 (1971). 70 Id. at 397–98. 71 See id. at 398–99; Williams, 399 U.S. at 242. 72 Bearden v. Georgia, 461 U.S. 660, 668–69 (1983). 73 See id. at 668. 74 See Tate, 401 U.S. at 400; Williams, 399 U.S. at 242 n.19. 75 407 U.S. 128 (1972). 76 417 U.S. 40 (1974). 77 James, 407 U.S. at 129. 78 Id. at 131. In this context, exemptions laws are provisions that exempt a certain amount of personal property from attachment and garnishment. See id. at 135.
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mentary on the general validity of various state recoupment statutes,79 the Court nonetheless expressed concern with the classification drawn by Kansas’s recoupment statute, which “strip[ped] from indigent de- fendants the array of protective exemptions Kansas ha[d] erected for other civil judgment debtors,”80 including state exemptions from at- tachment and restrictions on wage garnishment.81 While a state could prioritize its claim to money over other creditors (say, by giving its liens priority), “[t]his does not mean . . . that a State may impose undu- ly harsh or discriminatory terms merely because the obligation is to the public treasury rather than to a private creditor.”82 The Court sug- gested that it was applying rational basis scrutiny, although in light of the Court’s strong language some judges have read James as subject- ing the classification to some form of heightened scrutiny.83
Similarly, the debtor in Fuller v. Oregon owed fees for an attorney and an investigator.84 But in Fuller, the Court upheld Oregon’s re- coupment statute because the defendant wouldn’t be forced to pay un- less he was able.85 The majority found that the recoupment statute provided all of the same protections as those provided to other judg- ment debtors, and was therefore “wholly free of the kind of discrimina- tion that was held in James v. Strange to violate the Equal Protection Clause.”86 Justice Marshall, joined by Justice Brennan in dissent, cited the Oregon constitutional ban on imprisonment for debt and pointed out that indigent defendants could be imprisoned for failing to pay their court-appointed lawyers, while “well-heeled defendants” who had stiffed their hired counsel could not.87 The majority opinion pointed out that this issue hadn’t been preserved for appeal,88 and opined in dicta that the state ban on imprisonment for debt was an issue for
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 79 See id. at 132–33 (“The statutes vary widely in their terms.” Id. at 132. “[A]ny broadside pronouncement on their general validity would be inappropriate.” Id. at 133.). 80 Id. at 135 (emphasis added). 81 Id. at 135–36. 82 Id. at 138. The Court also likened the classification to the “invidious discrimination” of Rinaldi v. Yeager, 384 U.S. 305 (1966). James, 407 U.S. at 140 (quoting Rinaldi, 384 U.S. at 309). 83 See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 320 (1976) (Marshall, J., dissenting); San An- tonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 105–06 (1973) (Marshall, J., dissenting); Johnson v. Bredesen, 624 F.3d 742, 749 (6th Cir. 2010). 84 Fuller v. Oregon, 417 U.S. 40, 42 (1974). 85 See id. at 45–46. The statute seems to have provided for a Bearden-like inquiry: “[N]o con- victed person may be held in contempt for failure to repay if he shows that ‘his default was not attributable to an intentional refusal to obey the order of the court or to a failure on his part to make a good faith effort to make the payment . . . .’” Id. at 46 (quoting OR. REV. STAT. § 161.685(2) (1973) (omission in original)). 86 Id. at 48; see also id. at 47–48. 87 Id. at 61 (Marshall, J., dissenting); see also id. at 60–61. 88 See id. at 48 n.9 (majority opinion). Justice Douglas agreed the issue wasn’t properly in front of the Court. See id. at 57 (Douglas, J., concurring in the judgment).
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state courts to decide.89 Justice Douglas, concurring in the judgment, agreed, but noted the “apparent inconsistency between [the relevant state constitutional provision] and the recoupment statute.”90
Thus, under James and Fuller, states cannot discriminate invidi- ously against at least some classes of criminal justice debtors (note that neither case involved fines) merely by virtue of the fact that the debts arise from a criminal proceeding.
The federal protections under the Bearden and James lines of cases are important tools for ensuring our criminal justice system doesn’t imprison for poverty. But, as argued below, the state bans on debtors’ prisons can supplement Bearden — and they may well be relevant to the inquiry under James.
III. STATE CONSTITUTIONAL LIMITATIONS
As noted above, the state bans on debtors’ prisons have been given short shrift in the legal literature and recent litigation.91 This Part be- gins by providing a brief historical overview of the state bans92 and then argues that ignoring them is a legal mistake: these imprisonment- for-debt provisions plausibly extend to some parts of contemporary debtors’ prisons.
A. The “Abolition” of Debtors’ Prisons
The problems posed by nineteenth-century debtors’ prisons in the United States differ in many ways from the challenges posed today by criminal justice debt. Most importantly for present purposes, the debts at issue historically were contractual, not criminal. Imprisonment for nonpayment of contractual debt was a normal feature of American commercial life from the colonial era into the beginning of the nine- teenth century.93 But with the rise of credit testing and the replace- ment of personal lending networks with secured credit, imprisonment for nonpayment came to be seen as a harsh and unwieldy sanction,94 and a growing movement pressed for its abolition.
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 89 See id. at 48 n.9 (majority opinion). 90 Id. at 58 (Douglas, J., concurring in the judgment); see also id. (“It may be . . . that the Ore- gon courts would strike down the statute as being inconsistent with the constitutional provision if they faced the issue.”). 91 But cf. Complaint, Fant v. Ferguson, supra note 48, at 53 (arguing governments may not “take advantage of their position to impose unduly harsh methods of collection”); Complaint, Jen- kins v. Jennings, supra note 24, at 58–59 (same). 92 A more complete history would undoubtedly be helpful, but remains outside the scope of this Note. 93 See PETER J. COLEMAN, DEBTORS AND CREDITORS IN AMERICA 249–56 (1974). 94 See id. at 260–65; Becky A. Vogt, State v. Allison: Imprisonment for Debt in South Dakota, 46 S.D. L. REV. 334, 345–46 (2001).
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Eventually, the movement against imprisonment for debt would produce forty-one state constitutional provisions.95 Some of the provi- sions read as flat bans;96 others have various carve-outs and exceptions in the text.97 But subsequent case law narrows the practical differ- ences among them by reading into the flat bans largely the same carve-outs.98 The nine states that haven’t constitutionalized a ban on imprisonment for debt — Connecticut, Delaware, Louisiana, Maine, Massachusetts, New Hampshire, New York, Virginia, and West Virgin- ia — all have taken statutory action.99 Some statutes look on the sur- face a lot like the constitutional bans.100 Practically, some explicitly abolished the old writ of capias ad satisfaciendum (holding the body of
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 95 The constitutional imprisonment-for-debt provisions are as follows: ALA. CONST. art. I, § 20; ALASKA CONST. art. I, § 17; ARIZ. CONST. art. II, § 18; ARK. CONST. art. II, § 16; CAL. CONST. art. I, § 10; COLO. CONST. art. II, § 12; FLA. CONST. art. 1, § 11; GA. CONST. art. I, § 1, ¶ XXIII; HAW. CONST. art. I, § 19; IDAHO CONST. art. I, § 15; ILL. CONST. art. I, § 14; IND. CONST. art. I, § 22; IOWA CONST. art. I, § 19; KAN. CONST. Bill of Rights, § 16; KY. CONST. § 18; MD. CONST. art. III, § 38; MICH. CONST. art. I, § 21; MINN. CONST. art. I, § 12; MISS. CONST. art. III, § 30; MO. CONST. art. I, § 11; MONT. CONST. art. II, § 27; NEB. CONST. art. I, § 20; NEV. CONST. art. I, § 14; N.J. CONST. art. I, ¶ 13; N.M. CONST. art. II, § 21; N.C. CONST. art. I, § 28; N.D. CONST. art. I, § 15; OHIO CONST. art. I, § 15; OKLA. CONST. art. II, § 13; OR. CONST. art. I, § 19; PA. CONST. art. I, § 16; R.I. CONST. art. I, § 11; S.C. CONST. art. I, § 19; S.D. CONST. art. VI, § 15; TENN. CONST. art. I, § 18; TEX. CONST. art. I, § 18; UTAH CONST. art. I, § 16; VT. CONST. ch. II, § 40(3), para. 4; WASH. CONST. art. I, § 17; WIS. CONST. art. I, § 16; WYO. CONST. art. I, § 5. Laying the provisions out in one place seems necessary, as the stringcites available in the legal literature are now outdated. See Vogt, supra note 94, at 335 n.9; Note, Body Attachment and Body Execution: Forgotten but Not Gone, 17 WM. & MARY L. REV. 543, 550 n.45 (1976); Note, Imprisonment for Debt: In the Military Tradition, 80 YALE L.J. 1679, 1679 n.1 (1971). An Appendix to this Note, available on the Harvard Law Review Forum, pro- vides the critical language of each of the forty-one state constitutional bans. See Appendix, State Bans on Debtors’ Prisons and Criminal Justice Debt, 129 HARV. L. REV. F. 153 (2015), http:// harvardlawreview.org/2015/11/state-bans-on-debtors-prisons-and-criminal-justice-debt-appendix. 96 See, e.g., ALA. CONST. art. I, § 20 (“That no person shall be imprisoned for debt.”); GA. CONST. art. I, § 1, ¶ XXIII (“There shall be no imprisonment for debt.”); TEX. CONST. art. I, § 18 (“No person shall ever be imprisoned for debt.” (emphasis added)). 97 See, e.g., COLO. CONST. art. II, § 12 (“No person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors in such manner as shall be pre- scribed by law, or in cases of tort or where there is a strong presumption of fraud.”); MD. CONST. art. III, § 38 (“[A] valid decree of a court . . . for the support of a spouse or dependent children, or for the support of an illegitimate child or children, or for alimony . . . , shall not constitute a debt within the meaning of this section.”). 98 See infra notes 103–15 and accompanying text. 99 See Armstrong v. Ayres, 19 Conn. 540, 546 (1849); Johnson v. Temple, 4 Del. (4 Harr.) 446, 447 (1846); State v. McCarroll, 70 So. 448, 448 (La. 1915); Gooch v. Stephenson, 15 Me. 129, 130 (1838); Appleton v. Hopkins, 71 Mass. (5 Gray) 530, 532 (1855); Eams v. Stevens, 26 N.H. 117, 120 (1852); Whitney v. Johnson, 12 Wend. 359, 360 (N.Y. Sup. Ct. 1834); Werdenbaugh v. Reid, 20 W. Va. 588, 593, 598 (1882) (discussing Virginia and West Virginia). 100 For example, in 1855, Massachusetts passed a statute saying: “Imprisonment for debt is hereby forever abolished in Massachusetts.” Appleton, 71 Mass. (5 Gray) at 532.
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the debtor in satisfaction of the debt),101 and others reinvigorated pro- cedural protections for debtors who genuinely couldn’t pay.102
Of course, these bans don’t straightforwardly apply to criminal jus- tice debt. As the literature has long recognized, the “abolition” of debtors’ prisons was tightly constrained in scope.103 The doctrinal limits on the bans’ coverage cabined them along two dimensions: First, debtors evading payment were sculpted out from the bans. For in- stance, a number of constitutional provisions contained (or had read in) an exception for fraud.104 The fraud exception has been interpret- ed to cover cases of concealed assets or fraudulent contracting.105 In some cases, even leaving the state would count as fraud.106 And if a court ordered a party to turn over specific assets, that party’s refusal to comply would give rise to the jailable offense of civil contempt of court without offending the constitutional bans.107 Second, courts have held a long list of monetary obligations not to count as “debts.” Some constitutional provisions limited the ban to debts arising out of contract, as opposed to tort or crime.108 In these places, failure to pay child support or alimony could give rise to arrest and incarceration.109
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 101 The 1849 Virginia statute took this approach, which was carried over into West Virginia when that state broke away from Virginia. See Werdenbaugh, 20 W. Va. at 593, 598. 102 Despite its strong language, the Massachusetts statute functioned this way: the indigent debtor was required to appear in court before receiving a discharge. See Thacher v. Williams, 80 Mass. (14 Gray) 324, 328 (1859). 103 For example, one author, writing in 1889, pointed out a number of ways in which the state bans were limited. See J.C. Thomson, Imprisonment for Debt in the United States, 1 JURID. REV. 357 (1889). Over one hundred years later, another author identified the same carve-outs and concluded there’s a de facto debtors’ prison system in the United States. See Richard E. James, Putting Fear Back into the Law and Debtors Back into Prison: Reforming the Debtors’ Prison System, 42 WASHBURN L.J. 143, 149–54 (2002) (discussing civil contempt); id. at 155–56 (discuss- ing child support payments); id. at 156–57 (discussing taxes). 104 For constitutional provisions, see, for example, ARIZ. CONST. art. II, § 18 (“There shall be no imprisonment for debt, except in cases of fraud.”). For case law, see, for example, Towsend v. State, 52 S.E. 293, 294 (Ga. 1905) (“[I]n enacting the statute now under consideration, the [l]egislative purpose was not to punish . . . a failure to pay a debt, but . . . the act of securing the money or property of another with a fraudulent intent . . . .” (quoting Lamar v. State, 47 S.E. 958, 958 (Ga. 1904))); and Appleton, 71 Mass. (5 Gray) at 533 (noting that a major purpose of the stat- ute was “to punish fraudulent debtors”). 105 See Note, Civil Arrest of Fraudulent Debtors: Toward Limiting the Capias Process, 26 RUTGERS L. REV. 853, 855 (1973). 106 See id. 107 See, e.g., Samel v. Dodd, 142 F. 68, 70 (5th Cir. 1906); Boarman v. Boarman, 556 S.E.2d 800, 804–06 (W. Va. 2001); State v. Burrows, 5 P. 449, 449 (Kan. 1885); see also Thomson, supra note 103, at 364 (“[T]he imprisonment is for the contempt and not for the debt.” (quoting State v. Becht, 23 Minn. 411, 413 (1877))). 108 See, e.g., MICH. CONST. art. I, § 21 (“No person shall be imprisoned for debt arising out of or founded on contract, express or implied, except in cases of fraud or breach of trust.”); In re Sanborn, 52 F. 583, 584 (N.D. Cal. 1892). 109 See Thomson, supra note 103, at 366.
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So too with criminal costs and fines.110 Thus, in most states today one can be imprisoned for failure to pay noncommercial debts, including debts stemming from tort,111 crime,112 taxes and licensing fees,113 child support,114 and alimony.115
Many kinds of monetary obligations, then, have been held to fall outside the scope of the state bans. But once a monetary obligation qualifies as a “debt,” states have implemented the bans’ protections in one of two ways: First, some states have held that their bans on im- prisonment for debt remove the courts’ ability to issue contempt orders for nonpayment of qualifying debts.116 This is the “no-hearing rule.” The judgment creditor may pursue execution proceedings, attempting to attach nonexempt property, say, or garnish wages. But the court will not issue a civil contempt order to coerce the debtor into paying. Second, even in states that allow contempt proceedings, most courts require a sharply limited (and debtor-favorable) inquiry. Courts em- phasize that the contempt lies in failing to comply with an injunction to turn over specific property that is currently under the debtor’s con- trol.117 And that specific property must also be nonexempt under the
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 110 See id. at 367. Courts, however, did make clear that the legislature couldn’t criminalize the mere nonpayment of commercial debt as a constitutional workaround. See, e.g., Bullen v. State, 518 So. 2d 227, 233 (Ala. Crim. App. 1987). 111 See, e.g., Davis v. State, 185 So. 774, 776 (Ala. 1938). 112 See, e.g., State ex rel. Lanz v. Dowling, 110 So. 522, 525 (Fla. 1926); Plapinger v. State, 120 S.E.2d 609, 611 (Ga. 1961); Boyer v. Kinnick, 57 N.W. 691, 691 (Iowa 1894). It’s interesting to note that the Illinois state constitution specifically includes criminal fines. See ILL. CONST. art. I, § 14 (“No person shall be imprisoned for failure to pay a fine in a criminal case unless he has been afforded adequate time to make payment, in installments if necessary, and has willfully failed to make payment.”). 113 See, e.g., City of Fort Madison v. Bergthold, 93 N.W.2d 112, 116 (Iowa 1958); Voelkel v. City of Cincinnati, 147 N.E. 754, 756–57 (Ohio 1925). 114 See, e.g., State v. Hopp, 190 N.W.2d 836, 837 (Iowa 1971); In re Wheeler, 8 P. 276, 277–78 (Kan. 1885). 115 See, e.g., State ex rel. Krueger v. Stone, 188 So. 575, 576 (Fla. 1939); Roach v. Oliver, 244 N.W. 899, 902 (Iowa 1932). 116 E.g., In re Nichols, 749 So. 2d 68, 72 (Miss. 1999) (“The [creditors] are free to collect the judgment by execution, garnishment, or any other available lawful means so long as it does not include imprisonment.”). 117 See, e.g., Harrison v. Harrison, 394 S.W.2d 128, 130–31 (Ark. 1965). In Lepak v. McClain, 844 P.2d 852 (Okla. 1992), the Oklahoma Supreme Court sustained the contempt-of-court power when used “to require the delivery of . . . identified property owned by and in the possession or control of the judgment debtor . . . if the judgment debtor unjustly refuses to apply the identified property towards the satisfaction of a judgment”; however, the court struck it down under the ban on imprisonment for debt when contempt was used “to require the judgment debtor to set aside and deliver a portion of his/her future income toward the satisfaction of the judgment debt.” Id. at 855. At an initial pass, states with cases affirming this rule include the following: Utah, see In re Clift’s Estate, 159 P.2d 872, 876 (Utah 1945), Missouri, see State ex rel. Stanhope v. Pratt, 533 S.W.2d 567, 574–75 (Mo. 1976) (en banc); Zeitinger v. Mitchell, 244 S.W.2d 91, 97–98 (Mo. 1951) (citing In re Clift’s Estate, 159 P.2d at 876), and Oklahoma, see Sommer v. Sommer, 947 P.2d 512, 519 (Okla. 1997); Lepak, 844 P.2d at 855.
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state’s exemption laws.118 An injunction as a general rule is a “drastic and extraordinary remedy.”119 Accordingly, some states require that creditors attempt execution through in rem actions before resorting to in personam actions.120 Herein lies the attractiveness of the state bans to the civil debtor — the protections offered to a qualifying debtor, as a general rule, far exceed those offered to the criminal debtor.
B. New Applications of the Bans
The doctrinal carve-outs for crime suggest that the state bans wouldn’t apply to criminal justice debt. Nevertheless, three specific kinds of criminal monetary obligations might actually be covered by the bans: fines for regulatory offenses, costs, and definitionally civil debts. This section advances arguments from text, purpose, and origi- nal meaning, which in many cases converge on this result.
First, infractions known as “regulatory offenses,” also known as “public welfare offenses.” The most relevant example is traffic viola- tions, which have played a major role in Ferguson and elsewhere. How to define the category? Although at common law, scienter re- quirements were generally necessary to a criminal charge (hence the regular practice of courts reading them into statutes),121 the develop- ment of criminal law for regulatory purposes during industrialization made it increasingly desirable to impose strict liability in a number of situations. But some strict liability crimes, like statutory rape, are more easily analogized to traditional crimes despite the absence of a mens rea. A “regulatory offense” might be better defined, then, as a strict liability offense where the statute authorizes only a reasonable fine (and not a more penal-minded sanction, such as imprisonment).122 In some states, offenses meeting this latter definition aren’t even de- fined as “crimes.”123 An altogether different type of definition would look instead to the historical origin of the offense.124
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 118 See, e.g., Shepard, supra note 6, at 1531–32. 119 Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2761 (2010). 120 See Shepard, supra note 6, at 1529–30 (describing the rule’s origin in the common law pre- cept that creditors must exhaust legal remedies before turning to equitable ones). 121 See, e.g., United States v. Balint, 258 U.S. 250, 251–52 (1922) (“[T]he general rule at com- mon law was that the scienter was a necessary element in the indictment and proof of every crime . . . .”); see also Jerome Hall, Interrelations of Criminal Law and Torts: I, 43 COLUM. L. REV. 753, 767 (1943) (citing as generally accepted the maxim that an act does not make one guilty unless the mind is guilty). 122 For a similar analysis, see State v. Anton, 463 A.2d 703, 706–07 (Me. 1983). 123 See, e.g., FLA. STAT. § 775.08(3) (2015); MO. REV. STAT. § 556.016 (2000), repealed and re- placed by Act effective Jan. 1, 2017, 2014 Mo. Laws 941, 1152 (to be codified at Mo. Rev. Stat. § 556.061(29)) (defining “infraction”). 124 Indeed, when trying to determine whether or not to read a scienter requirement into a stat- ute, courts are guided by principles like those laid out in Morissette v. United States, 342 U.S. 246 (1952), looking to any required culpable mental state, the purpose of the statute, its connection to
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Interpreting fines for regulatory offenses to fall under the bans of many states is consistent with the bans’ text, purpose, and original meaning. Starting with the text, twenty-two state bans refer to “debt” or “debtor” without drawing further distinctions between different kinds of debts,125 and there’s no textual reason why such words should exclude monetary obligations triggered by statutorily regulated con- duct and owed to the state.126 Indeed, the presence of such qualifying language in the other bans127 strongly suggests that the words “debt” and “debtor” weren’t inherently limited to commercial life as a matter of the original meaning of the text — just as they aren’t today.
But the carve-outs for crime? To be fair, provisions limiting the ban to debts arising out of contract (four states)128 or stemming from civil cases (seven states)129 would seem to leave regulatory offenses un- covered. But other carve-outs for crime130 aren’t so clean-cut, as their purpose likely had nothing to do with regulatory offenses. To the con- trary, regulatory offenses became prominent within American criminal law only after the abolition of debtors’ prisons.131 The Court in
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– common law, whether or not it is regulatory in nature, whether it would be difficult to enforce with a scienter requirement, and whether the sanction is severe. See, e.g., Ex parte Phillips, 771 So. 2d 1066 (Ala. 2000) (applying Morissette’s framework). 125 This includes the state constitutional bans of Alabama, Alaska, Arizona, Florida, Georgia, Hawaii, Idaho, Indiana, Kansas, Kentucky, Minnesota, Mississippi, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas, Utah, Vermont, Washington, and Wyoming. See sources cited supra note 95. 126 See, e.g., Debt, BLACK’S LAW DICTIONARY (10th ed. 2014) (“Liability on a claim; a specif- ic sum of money due by agreement or otherwise . . . .”). Indeed, in People ex rel. Daley v. Datacom Systems Corp., 585 N.E.2d 51 (Ill. 1991), the Supreme Court of Illinois held that munici- pal fines counted as “debts” for the purposes of the Collection Agency Act. Id. at 60. 127 E.g., S.D. CONST. art. VI, § 15 (“No person shall be imprisoned for debt arising out of or founded upon a contract.”). 128 This carve-out can be found in the state bans of Michigan, New Jersey, South Dakota, and Wisconsin. See sources cited supra note 95; see also, e.g., MICH. CONST. art. I, § 21 (“No person shall be imprisoned for debt arising out of or founded on contract, express or implied . . . .”). 129 To be found in the state bans of Arkansas, California, Iowa, Nebraska, New Mexico, Ohio, and Tennessee. See sources cited supra note 95. 130 This category would include constitutional provisions with an express carve-out for crime, e.g., OKLA. CONST. art. II, § 13 (exempting “fines and penalties imposed for the violation of law”), and states where case law has specifically mentioned “crime,” e.g., Plapinger v. State, 120 S.E.2d 609, 611 (Ga. 1961). 131 See generally Francis Bowes Sayre, Public Welfare Offenses, 33 COLUM. L. REV. 55, 62–67 (1933) (tracing the development of public welfare offenses in the United States). Professor Jerome Hall, writing in 1941, said: “[The act requirement] and the mens rea principle constituted the two most basic doctrines of [Bishop’s] treatise on criminal law. They are still generally accepted as such in this country.” Jerome Hall, Prolegomena to a Science of Criminal Law, 89 U. PA. L. REV. 549, 557–58 (1941). Yet Hall was critiquing a blind adherence to mens rea as a ubiquitous doc- trine in criminal law. See id. at 558 (arguing that mens rea, like the act requirement, becomes “little more than a point of orientation . . . once we encounter involuntary manslaughter, other crimes of negligence, and various statutory offenses”).
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Morissette v. United States132 identified the “pilot of the [regulatory offenses] movement” in such crimes as “selling liquor to an habitual drunkard” and “selling adulterated milk,” citing cases from 1849,133 1864,134 and 1865.135 A law review article published in 1933 called the “steadily growing stream of offenses punishable without any criminal intent whatsoever” a “recent movement” in criminal law,136 placing the beginnings of the trend in the middle of the nineteenth century.137 By comparison, all but a few states had enacted their bans on debtors’ prisons by the 1850s.138 So reading the carve-outs as unrelated to reg- ulatory crimes is consistent with both text and original meaning. The abolition movement certainly did not intend to exclude such debts from the ban; whether legislatures meant to include them depends up- on how sparing one’s assumptions about past intent are.
Many state courts could therefore plausibly hold today that fines for regulatory offenses constitute civil “debt” under their state constitu- tional bans. While such holdings might raise a stare decisis issue in many instances, the risk of deprivations of liberty is high, and the world of criminal justice has changed so dramatically,139 that revisiting precedent might be jurisprudentially sound. As the Ohio Supreme Court put it: “In today’s society, no one, in good conscience, can con- tend that a nine-dollar fine for crashing a stop sign is deserving of three days in jail if one is unable to pay.”140
Second, costs. Despite arising out of a criminal proceeding, costs are cleanly distinguishable from fines, restitution, and forfeiture in their basic purpose: compensating for or subsidizing the government’s marginal expenditures on criminal proceedings. But of course, funding the government is not one of the traditional purposes of penal law.
Because the purpose of costs is not purely or event mostly to pun- ish, they are arguably debts within the text of the state bans. As one ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 132 342 U.S. 246 (1952). 133 Id. at 256 (citing Barnes v. State, 19 Conn. 398 (1849)). 134 Id. (citing Commonwealth v. Farren, 91 Mass. (9 Allen) 489 (1864)). 135 Id. (citing Commonwealth v. Nichols, 92 Mass. (10 Allen) 199 (1865); Commonwealth v. Waite, 93 Mass. (11 Allen) 264 (1865)). 136 Sayre, supra note 131, at 55. 137 Id. at 56; see also William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 513–14 (2001) (describing the massive growth in statutory offenses in several states from the second half of the nineteenth century until the early twenty-first century); cf. Myers v. State, 1 Conn. 502 (1816) (holding that a defendant who rented his carriage on Sunday, a crime punishable by a fine of twenty dollars, couldn’t be found guilty without a showing of mens rea). The late Professor William J. Stuntz also noted that regulatory crimes and “core crimes” like mur- der “have dramatically different histories.” Stuntz, supra, at 512. 138 See CHARLES WARREN, BANKRUPTCY IN UNITED STATES HISTORY 52 (1935). 139 Cf., e.g., Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2410–11 (2015) (identifying the “ero[sion]” of “statutory and doctrinal underpinnings,” id. at 2410, as a principal justification for overruling precedent in federal stare decisis doctrine). 140 Strattman v. Studt, 253 N.E.2d 749, 753 (Ohio 1969).
2016] STATE BANS ON DEBTORS’ PRISONS 1041
might guess, the states have split on whether costs fall within the scope of the bans. The majority rule, often tersely stated, is that they don’t.141 But at least one court has held otherwise. In Strattman v. Studt,142 the defendant was sentenced to the statutory maximum of six months, a fine of $500, and costs.143 After having served his time, and when he couldn’t pay his debt, he was imprisoned to sit out his debt at $3 per day.144 The Ohio Supreme Court held that costs are imposed “for the purpose of lightening the burden on taxpayers financing the court system,” not for a “punitive, retributive, or rehabilitative pur- pose, as are fines.”145 Observing that costs arose out of an “implied contract” with the court, Strattman held that “[a] judgment for costs in a criminal case is a civil, not a criminal, obligation, and may be col- lected only by the methods provided for the collection of civil judg- ments.”146 Future state supreme courts confronting the issue should embrace Strattman’s logic and ban cost-related imprisonment.
Indeed, federal constitutional law may compel an answer on this point. Costs trigger the precedents, discussed above, of James and Fuller.147 Many state bans on imprisonment for debt provide equally (or more) unequivocal protections to the civil debtor than the exemp- tion statutes in James did; a strong logic therefore suggests that the Court could more widely enforce James’s prohibition on jailing de- fendants for failing to pay court costs. Additionally, interpreting the James and Fuller Courts as applying some degree of heightened scruti- ny,148 the disparate application of the imprisonment-for-debt bans is an even better indicator of “invidious discrimination”149 than the dispar-
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 141 See, e.g., Lee v. State, 75 Ala. 29, 30 (1883); Mosley v. Mayor of Gallatin, 78 Tenn. 494, 497 (1882). 142 253 N.E.2d 749. 143 Id. at 750. 144 Id. at 750–51. 145 Id. at 754. 146 Id. In fact, the recent bench card promulgated by Ohio Supreme Court Chief Justice O’Connor begins as follows: “Fines are separate from court costs. Court costs and fees are civil, not criminal, obligations and may be collected only by the methods provided for the collection of civil judgments.” OFFICE OF JUDICIAL SERVS., supra note 57 (citing Strattman, 253 N.E.2d at 754). 147 See supra notes 75–90 and accompanying text. 148 This possibility is made more credible by Justice O’Connor’s note in the related case of Bearden v. Georgia that “[d]ue process and equal protection principles converge in the Court’s analysis in these cases.” 461 U.S. 660, 665 (1983). Of course, while the disparity between how indigent and “well-heeled” defendants are treated, see supra note 87 and accompanying text, is arguably not right, it seems reasonable enough to pass rational basis scrutiny, see, e.g., FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314–15 (1993); U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980). For example, a state could plausibly maintain that imprisonment for nonpayment of costs attendant to crime helps to deter criminal behavior, such that abolishing such imprisonment for civil debts, while maintaining it for criminal debts, is reasonable. 149 James v. Strange, 407 U.S. 128, 140 (1972) (quoting Rinaldi v. Yeager, 384 U.S. 305, 309 (1966)).
1042 HARVARD LAW REVIEW [Vol. 129:1024
ate applications of the Kansas and Oregon exemption statutes. De- spite the Court’s reluctance to rule on an issue not properly briefed, federal courts might return to the issue and confirm that states must apply their bans on imprisonment for debt to costs (and other quasi- civil debts) in a criminal case.150 In fact, the lawsuits against Ferguson and Jennings hinted at this argument,151 although neither complaint cited the Missouri Constitution. When dealing with costs, the states may adopt the reasoning of Strattman in their interpretations of state law, or the Fourteenth Amendment, under James and Fuller, may itself demand that reasoning.
Finally, violations of monetary obligations that are statutorily de- fined as civil. For both regulatory offenses and costs, a reviewing court must assess and characterize the debt as civil or quasi-civil for the purposes of coverage under the state ban. But sometimes, the rel- evant statute explicitly tags the criminal justice debt as civil or as re- ceiving civil protections.152
For example, in some jurisdictions, courts have held that violations of municipal ordinances constitute civil actions.153 In Kansas City v. Stricklin,154 for example, the Supreme Court of Missouri noted that these proceedings “are not prosecutions for crime in a constitutional sense.”155 Case law in a number of states supports this approach,156 although a fifty-state survey cannot be conducted here. As much of the furor regarding contemporary debtors’ prisons revolves around municipalities, this is no minor point. Similarly, some collections stat- utes explicitly redefine certain debts as civil for the purposes of collec-
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 150 It may also be worth pointing out that James and Fuller dealt most concretely with attor- neys’ fees. There’s probably no principled reason to distinguish between attorneys’ fees and other costs, like a judgment fee or a clerk fee, but doctrinally the Court may have felt especially sensi- tive to discrimination with respect to assigning lawyers, given its recent decision mandating coun- sel for indigent defendants in Gideon v. Wainwright, 372 U.S. 335 (1963). 151 See Complaint, Fant v. Ferguson, supra note 48; Complaint, Jenkins v. Jennings, supra note 24. 152 The possibility that all violations of municipal ordinances (in some states) might fall under the bans is made more morally salient by the fact that many courts treat such violations as civil for the purposes of setting (lowered) procedural protections for defendants. See, e.g., State v. An- ton, 463 A.2d 703, 705 (Me. 1983); Kansas City v. Stricklin, 428 S.W.2d 721, 725–26 (Mo. 1968) (en banc). 153 Naturally, there may be some overlap between this category and the two mentioned above. For example, violations of municipal ordinances boil down to the “regulatory crimes” category in states where municipalities are not empowered to imprison. Take Wisconsin, where the munici- pal inability to create crimes prohibits them from punishing infractions by either fine or impris- onment. See State v. Thierfelder, 495 N.W.2d 669, 673 (Wis. 1993); see also WIS. STAT. § 939.12 (2014) (defining “crime”). 154 428 S.W.2d 721. 155 Id. at 724. 156 See, e.g., City of Danville v. Hartshorn, 292 N.E.2d 382, 384 (Ill. 1973) (describing violations of municipal ordinances as “quasi-criminal in character [but] civil in form” (quoting City of Deca- tur v. Chasteen, 166 N.E.2d 29, 39 (Ill. 1960))).
2016] STATE BANS ON DEBTORS’ PRISONS 1043
tion. The debt in James had this characteristic, as the underlying stat- ute specified that the “total amount . . . shall become a judgment in the same manner and to the same extent as any other judgment under the code of civil procedure.”157 In Florida, convicted indigents as- sessed costs for due process services are expressly provided with the same protections as civil-judgment debtors.158 But not all collections statutes are so explicit, of course.159
IV. THE ADDED VALUE OF THE STATE LAW APPROACH
If courts begin to recognize claims under the state bans on debtors’ prisons, imprisonment for some criminal debts would become subject to both federal and state restrictions. This Part lays out how the state law protections would differ from the federal protections, and why having multiple levels of protection makes sense.
To start, state debtor protections would not merely duplicate the federal ones. In fact, under the state law protections, criminal justice debtors would face a much friendlier inquiry than they would under Bearden’s freestanding equal protection jurisprudence.160 This is true under either of the two rules detailed above. Instead of a test that asks whether the debtor has sought employment or credit per Bearden, in some states there would be a limited inquiry into whether the debt- or possessed specific, nonexempt property that the debtor could be or- dered to turn over. And many debtors currently caught in the cogs of the criminal justice system would have no such property. In other states, the court simply could not imprison for failure to pay the debt, although it could pursue other execution remedies available at law.
Why have two tests? Regulating criminal justice debt through both Bearden claims and imprisonment-for-debt claims makes a lot of sense. On this understanding of the law, debtor protections co-vary quite straightforwardly with the state’s interest in collecting.
The baseline principle, of course, is that a court may consider a de- fendant’s financial resources to inform its decision whether to impose jail time, fines, or other sanctions.161 Without this discretion, courts
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 157 James v. Strange, 407 U.S. 128, 130 n.3 (1972) (emphasis added) (quoting KAN. STAT. ANN. § 22-4513(a) (Supp. 1971)). 158 See FLA. STAT. § 938.29(4) (2015) (specifying that such debtors shall not “be denied any of the protections afforded any other civil judgment debtor”). 159 Cf., e.g., MISS. CODE ANN. § 99-37-13 (West 2015) (“[A] default . . . may be collected by any means authorized . . . for the enforcement of a judgment.”); MO. REV. STAT. § 560.031(5) (2000) (“[T]he fine may be collected by any means authorized for the enforcement of money judgments.”) (to be transferred to MO. REV. STAT. § 558.006 by Act effective Jan. 1, 2017, 2014 Mo. Laws 941). 160 While constitutional carve-outs for fraud will capture some debtors, it can’t plausibly lower the protections of the ban to the level of Bearden: the failure to search for a job or to seek credit is hardly fraudulent. 161 E.g., Bearden v. Georgia, 461 U.S. 660, 669–70 (1983).
1044 HARVARD LAW REVIEW [Vol. 129:1024
might impose prison terms unnecessarily, to avoid the risk of assessing a fine on a judgment-proof defendant. And the Court has made clear this discretion is central to the core penal goals of deterrence, incapaci- tation, and retribution.162 Against that baseline, the tradition of Bearden simply mandates that once a sentencing court has imposed a monetary obligation, it may not convert that obligation into imprison- ment for failure to pay absent a special finding, a basic threshold that ensures the defendant isn’t invidiously punished for being poor.
Imprisonment-for-debt claims would impose a heightened require- ment on financial obligations that, unlike traditional fines and restitu- tion, really further noncriminal goals — despite being imposed from within the criminal system. Regulatory offenses are assessed to deter low-level misbehavior, and costs are assessed to replenish the coffers of the criminal justice system, or to fund the government. Indeed, costs function more as fees for service or taxes than as punishments. More problematically, these monetary obligations, unlike most taxes, are not indexed to wealth, income, or any other proxy for ability to pay. They therefore impose the burden of funding the government on those individuals and communities least equipped to bear the weight. Conceptually, then, imprisonment-for-debt claims would regu- late the new debtors’ prisons along a fundamentally distinct dimension and should join Bearden claims as a way to challenge unconstitutional imprisonment.
Now, the imprisonment-for-debt claims wouldn’t challenge the propriety of assessing such charges in the first place. The proper tex- tual and analytical hook for that question is the Excessive Fines Clause.163 They would, however, challenge a state’s use of collection methods unavailable to civil creditors. Where a state has chosen to ban debtors’ prisons, it shouldn’t be able to welcome them back in surreptitiously, by grafting them onto the criminal system.164
* * *
So far, the vast majority of academic commentators, litigators, leg- islatures, and other legal actors have focused on the federal protections
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 162 See id. at 672. 163 See Colgan, supra note 24. 164 A state, of course, could repeal its ban on debtors’ prisons, but any attempt to do so would create an unlikely coalition of criminal and civil debtors, and the political-action costs of doing so are likely too high. See generally Lee Anne Fennell & Richard H. McAdams, The Distributive Deficit in Law and Economics, MINN. L. REV. (forthcoming 2016), http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=2544519 [http://perma.cc/9APA-W5VQ]. Indeed, based upon the state- by-state abolition of debtors’ prisons in the nineteenth century, the bans highlight the self- determination of states within the federalist structure. This tiered regulatory model thus gives each state the ability to pursue multiple legitimate ends — including both punishment and subsi- dizing the criminal justice system — so long as it doesn’t discriminate in applying its own law.
2016] STATE BANS ON DEBTORS’ PRISONS 1045
extended under Bearden and its predecessors.165 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 im- prisonment-for-debt claims could operate side-by-side in a manner that’s both administrable and functionally appealing.
The new American debtors’ prisons seem problematic along multi- ple dimensions. But aside from clear policy concerns, they may violate constitutional laws at both the federal and state levels. Some of these laws — the state bans on debtors’ prisons — were enacted over a hundred years ago, but can and should be invoked today.166 The task of operationalizing these bans for a new social evil rests in the hands of litigators and courts. But the spirit behind them ought to drive other constitutional actors — executives, legislators, and citizens — to take swift action.167
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 165 See supra p. 1028. 166 See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489, 491 (1977) (“State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of feder- al law. The legal revolution which has brought federal law to the fore must not be allowed to in- hibit the independent protective force of state law — for without it, the full realization of our lib- erties cannot be guaranteed.”). 167 For an argument that awareness campaigns are more effective than litigation, see Eric Balaban, Shining a Light into Dark Corners: A Practitioner’s Guide to Successful Advocacy to Curb Debtor’s Prisons, 15 LOY. J. PUB. INT. L. 275 (2014).
153
APPENDIX
STATE BANS ON DEBTORS’ PRISONS AND CRIMINAL JUSTICE DEBT
This Appendix identifies and locates the critical language of each of the forty-one current state constitutional bans on debtors’ prisons. Readers should refer to the constitutions themselves for related provi- sions, such as exemptions to the types of property that may be seized.
* * *
“That no person shall be imprisoned for debt.” ALA. CONST. art. I, § 20. “There shall be no imprisonment for debt. This section does not pro- hibit civil arrest of absconding debtors.” ALASKA CONST. art. I, § 17. “There shall be no imprisonment for debt, except in cases of fraud.” ARIZ. CONST. art. II, § 18. “No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud.” ARK. CONST. art. II, § 16. “. . . A person may not be imprisoned in a civil action for debt or tort, or in peacetime for a militia fine.” CAL. CONST. art. I, § 10. “No person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors in such manner as shall be prescribed by law, or in cases of tort or where there is a strong pre- sumption of fraud.” COLO. CONST. art. II, § 12. “No person shall be imprisoned for debt, except in cases of fraud.” FLA. CONST. art. I, § 11. “There shall be no imprisonment for debt.” GA. CONST. art. I, § 1, ¶ XXIII. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– This is the Appendix to Note, State Bans on Debtors’ Prisons and Criminal Justice Debt, 129 HARV. L. REV. 1024 (2016).
154 HARVARD LAW REVIEW FORUM [Vol. 129:153
“There shall be no imprisonment for debt.” HAW. CONST. art. I, § 19. “There shall be no imprisonment for debt in this state except in cases of fraud.” IDAHO CONST. art. I, § 15. “No person shall be imprisoned for debt unless he refuses to deliver up his estate for the benefit of his creditors as provided by law or unless there is a strong presumption of fraud. No person shall be imprisoned for failure to pay a fine in a criminal case unless he has been afforded adequate time to make payment, in installments if necessary, and has willfully failed to make payment.” ILL. CONST. art. I, § 14. “. . . [T]here shall be no imprisonment for debt, except in case of fraud.” IND. CONST. art. I, § 22. “No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in case of fraud; and no person shall be impris- oned for a militia fine in time of peace.” IOWA CONST. art. I, § 19. “No person shall be imprisoned for debt, except in cases of fraud.” KAN. CONST. Bill of Rights, § 16. “The person of a debtor, where there is not strong presumption of fraud, shall not be continued in prison after delivering up his estate for the benefit of his creditors in such manner as shall be prescribed by law.” KY. CONST. § 18. “No person shall be imprisoned for debt, but a valid decree of a court of competent jurisdiction or agreement approved by decree of said court for the support of a spouse or dependent children, or for the support of an illegitimate child or children, or for alimony (either common law or as defined by statute), shall not constitute a debt with- in the meaning of this section.” MD. CONST. art. III, § 38. “No person shall be imprisoned for debt arising out of or founded on contract, express or implied, except in cases of fraud or breach of trust.” MICH. CONST. art. I, § 21.
2016] APPENDIX: STATE BANS ON DEBTORS’ PRISONS 155
“No person shall be imprisoned for debt in this state, but this shall not prevent the legislature from providing for imprisonment, or holding to bail, persons charged with fraud in contracting said debt. . . .” MINN. CONST. art. I, § 12. “There shall be no imprisonment for debt.” MISS. CONST. art. III, § 30. “That no person shall be imprisoned for debt, except for nonpayment of fines and penalties imposed by law.” MO. CONST. art. I, § 11. “No person shall be imprisoned for debt except in the manner provid- ed by law, upon refusal to deliver up his estate for the benefit of his creditors, or in cases of tort, where there is strong presumption of fraud.” MONT. CONST. art. II, § 27. “No person shall be imprisoned for debt in any civil action on mesne or final process.” NEB. CONST. art. I, § 20. “. . . [T]here shall be no imprisonment for debt, except in cases of fraud, libel, or slander, and no person shall be imprisioned [impris- oned] for a Militia fine in time of Peace.” NEV. CONST. art. I, § 14 (second alteration in original). “No person shall be imprisoned for debt in any action, or on any judgment founded upon contract, unless in cases of fraud; nor shall any person be imprisoned for a militia fine in time of peace.” N.J. CONST. art. I, ¶ 13. “No person shall be imprisoned for debt in any civil action.” N.M. CONST. art. II, § 21. “There shall be no imprisonment for debt in this State, except in cases of fraud.” N.C. CONST. art. I, § 28. “No person shall be imprisoned for debt unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be prescribed by law; or in cases of tort; or where there is strong pre- sumption of fraud.” N.D. CONST. art. I, § 15.
156 HARVARD LAW REVIEW FORUM [Vol. 129:153
“No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud.” OHIO CONST. art. I, § 15. “Imprisonment for debt is prohibited, except for the non-payment of fines and penalties imposed for the violation of law.” OKLA. CONST. art. II, § 13. “There shall be no imprisonment for debt, except in case of fraud or absconding debtors.” OR. CONST. art. I, § 19. “The person of a debtor, where there is not strong presumption of fraud, shall not be continued in prison after delivering up his estate for the benefit of his creditors in such manner as shall be prescribed by law.” PA. CONST. art. I, § 16. “The person of a debtor, when there is not strong presumption of fraud, ought not to be continued in prison, after such person shall have delivered up property for the benefit of said person’s creditors, in such manner as shall be prescribed by law.” R.I. CONST. art. I, § 11. “No person shall be imprisoned for debt except in cases of fraud.” S.C. CONST. art. I, § 19. “No person shall be imprisoned for debt arising out of or founded up- on a contract.” S.D. CONST. art. VI, § 15. “The Legislature shall pass no law authorizing imprisonment for debt in civil cases.” TENN. CONST. art. I, § 18. “No person shall ever be imprisoned for debt.” TEX. CONST. art. I, § 18. “There shall be no imprisonment for debt except in cases of abscond- ing debtors.” UTAH CONST. art. I, § 16. “No person shall be imprisoned for debt.” VT. CONST. ch. II, § 40(3), para. 4.
2016] APPENDIX: STATE BANS ON DEBTORS’ PRISONS 157
“There shall be no imprisonment for debt, except in cases of abscond- ing debtors.” WASH. CONST. art. I, § 17. “No person shall be imprisoned for debt arising out of or founded on a contract, expressed or implied.” WIS. CONST. art. I, § 16. “No person shall be imprisoned for debt, except in cases of fraud.” WYO. CONST. art. I, § 5.
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‘60 Days In’: Everyday People Are Sent to a
Violent Prison in the Most Insane Reality TV
Show Yet
The television series documents seven volunteers who agree to serve as undercover agents in a
corrupt county jail. It debuts March 10 on A&E.
Jen Yamato, 03.09.16
It’s always taken a certain alchemy of bravery and brio to even desire to become a reality
TV star, but A&E Networks changed the otherwise glam reality game with some of realitydom’s
most harrowingly human setups: real people sharing tough stories. Hoarders. Intervention.
Goddamn Duck Dynasty.
Their latest docuseries 60 Days In treads such stomach-churning ground that, at times,
you truly wonder if all seven of the average civilians who signed up to spend two months in a
county jail—for (social) science and, y’know, ratings—will make it home in one piece.
The 12-episode series follows an “unprecedented” prison reform program conceived by
Clark County, Indiana, Sheriff Jamey Noel, a ruddy-cheeked, stocky man who landed the
sheriff’s gig only to find he inherited a county jail rotted through by corruption and extreme
anarchy.
“Before I took office… the inmates were running the facility,” he tells the camera, posing
for a glossy stand-up shot that gives 60 Days In an unfortunate sheen of opportunistic slime.
“People were getting arrested on purpose because drugs were cheaper to get in jail,” he says,
while security footage from the compound’s 300 cameras cut through scenes of violent cellblock
brawls and shockingly conspicuous drug use.
Noel says he staged raids to sweep narcotics out of his jail, but the problems persisted. He
suspected both inmates and guards were in cahoots moving contraband throughout an invisible
network he couldn’t reach. So he came up with a LEGITIMATELY INSANE IDEA: Why not
recruit normal, law-abiding citizens to go undercover in this very dangerous prison rife with
drugs, violence, and lawlessness and have them operate as informants?
Why not? Oh, maybe the extraordinary liability of possible harm coming to any of Noel’s
civilian moles deep undercover in the clink? 60 Days In raises the question immediately: What
kind of person would sign up to take such a risk?
Pretty average upstanding Americans, it turns out. The septet of innocent citizens in the
show hail from diverse backgrounds, each with their own honorable reasons for signing on.
There’s Zac, a former Marine who hopes the experience helps him land a job with the DEA—so
much so that he leaves his wife and baby back home to join the program. Tami, a 20-year veteran
police officer, also has a wife and daughter waiting for her but is driven by a foster home
upbringing to understand how the other half lives behind bars.
After the first two episodes, which debut back-to-back this Thursday, it seems likely at
least a few of these incognito prison test subjects will not be escaping bodily harm or worse after
60 days in the shit. Not that they seem to understand what’s at stake as the premiere episode
unfurls.
With the exception of the sheriff who came up with this brilliant idea to clean up his jail,
one overseeing officer on the ground, and the show’s producers who moonlight as a
documentary film crew, nobody has knowledge of this secret program. Not even the guards, who
may or may not also be dirty themselves, know that these newbie criminals are actually
completely unprepared normal persons who have been cast—I mean, recruited—to serve as state
informants.
The first episode is structured much like any reality competition show. We meet the
“characters,” see their webcam audition tapes, make a home visit or two with the adoring
families who don’t quite understand why their loved one has gone off the deep end for a
television show—but support them nonetheless.
Also mind-blowing is the fact that, although given fake arrest and conviction records,
they’re instructed to go by their real identities—with the exception of one woman who has a
pretty great reason for using an alias: She’s the daughter of Muhammad Ali. “If my father didn’t
have Parkinson’s and was bright, he wouldn’t go for this!” Maryum Ali, a social worker by
trade, laughs to the camera while still a free woman.
These seven fake inmates undergo “training”—if that’s what you can call a few days
sitting in a classroom, learning from burly professionals how not to be made as a rat in jail, who
not to piss off, what not to do AT ALL COSTS in order to avoid being labeled a snitch. For
example, Prison Economics 101, or how to spend money without borrowing from the wrong
people. How not to let anyone steal too much of your food, otherwise “they’re gonna think
you’re a bitch.” Don’t intervene in prison fights. Don’t break the law. Don’t hide in your cell too
much. Don’t go outside your cell too much. Whatever you do, don’t blow your cover.
Nervously scratching his head through all of this is Jeff, a professional “security officer”
who worries about defending himself if attacked. Blond, bespectacled, and of a gently doughy
build, he’s doing the program to prove he can make it as a bona fide correctional officer and
graduate from his position as a mall cop back home in Iowa.
“He,” a colleague who has seen the show declared with a grim sigh, “is going to die.”
It’s worth noting that, technically speaking, snitching is what these reality show
participants are being paid to do—willingly move into a volatile county jail with virtually no
safety net or protections in place in order to observe the crime and corruption that may be taking
place in the shadows.
That said, it’s riveting stuff once the charade gets going. Call it Undercover Inmate. Once
in the slammer where they’re forced to trade their street clothes for prison orange and leave the
world they know behind, it starts to get real for everyone involved. One participant gets a little
too cozy with the pod boss who runs their cellblock like a mini fiefdom, worrying the prison
admins who are discreetly monitoring their lab rats from afar.
Another participant, a schoolteacher named Robert, inspires the most concern right off
the bat. From episode 1 he’s conspicuously flippant about the risks at hand, comparing the prison
system to a country club where inmates get to lie around watching television all day on the
government’s dime. When Robert finally saunters into his jail pod his condescension lands him
in a precarious position, painting a giant target on his back that slick editing suggests leads
directly to a violent encounter.
The moral complications of this precarious setup escalate quickly, augmented by a
dramatically throbbing score. It’s a mutually beneficial arrangement for Sheriff Noel, whose
gamble could pay off with huge exposure for his maverick brand of prison reform, and for the
producers, who can blame the program if anything goes horribly wrong. More questionable is
what the seven participants will have gained when their time on the show is up, for by the end of
episode 2, hidden cameras capture suspicious inmates plotting nefarious deeds.
Is it any wonder A&E just green-lit a second season?
-- -- --
Accessed on 26 November 2016 on The Daily Beast website at www.thedailybeast.com/
articles/2016/03/09/60-days-in-everyday-people-are-sent-to-a-violent-prison-in-the-most-insane-
reality-tv-show-yet.html
Invictus By William Ernest Henley
Out of the night that covers me,
Black as the pit from pole to pole,
I thank whatever gods may be
For my unconquerable soul.
In the fell clutch of circumstance
I have not winced nor cried aloud.
Under the bludgeonings of chance
My head is bloody, but unbowed.
Beyond this place of wrath and tears
Looms but the Horror of the shade,
And yet the menace of the years
Finds and shall find me unafraid.
It matters not how strait the gate,
How charged with punishments the scroll,
I am the master of my fate,
I am the captain of my soul.
-- -- --
Written in 1875 and published in 1888, this poem was retrieved from the Poetry Foundation
website at https://www.poetryfoundation.org/poems-and-poets/poems/detail/51642 on 26
November 2016.
Nelson Mandela—the world famous political activist, Nobel Peace Prize Winner, political
prisoner for 27 years, who later became President of South Africa in the 1990s—claimed that
this poem kept him alive while in prison and that he recited it from memory to other prisoners as
inspiration to keep going. (Claims in this sentence are from the Open Culture website in a
segment labeled “Morgan Freeman Masterfully Recites Nelson Mandela’s Favorite Poem,
‘Invictus’” published on 18 December 2013 at http://www.openculture.com/2013/12/morgan-
freeman-masterfully-recites-nelson-mandelas-favorite-poem-invictus.html and retrieved the
same day as the poem.)
10.16.15
The Harsh Realities of Prison, Through the Lens of Piper Kerman, Author of
Orange is the New Black
By Dan Rogan
Prison is not the easiest topic to make entertaining, but The
Washington Post called “Orange is the New Black” “the best TV show about prison ever made.”
Of course “Orange is the New Black” is not all entertainment, and not entirely fiction. In fact it is
based on the book, Orange is the New Black: My Year in a Woman’s Prison, the memoir of Piper
Kerman. Piper is not just the inspiration behind the show, she is the real life hero tackling issues
surrounding prison.
Join us Sunday, October 25 at 2 p.m. for the 2015 Ed Likover Memorial Lecture, with our
special guest Piper Kerman. Engage with Piper and hear her discuss her personal experiences,
as well as relay stories and insights into the issues surrounding women’s prisons, mass
incarceration, and solitary confinement.
The event is free and open to the public. Visit our event page for further details and to RSVP.
Get a copy of Orange is the New Black: My Year in a Woman’s Prison and watch the show
“Orange is the New Black.” For more information on prisoner rights, visit our issue page.
Piper’s Impact
Piper has taken her real-life experience in prison, engrained it into the American people’s
psyche, and now everyone is paying attention. Piper is an activist, and is using her newly found
notoriety and success in all the right ways.
What is Piper up to?
She serves on the board of the Women’s Prison Association in New York City.
She dialogues on the issues of mental health and mass incarceration – as well as – girls’
and women’s rights on her Twitter.
She testified in front of congress on the negative impact of solitary confinement.
She teaches nonfiction writing at the Marion Correctional Institution and the Ohio State
Reformatory.
Plan of Action for the ACLU of Ohio
Piper and the ACLU of Ohio are in this fight together. We want to make changes in Ohio’s
criminal laws, including the issues of over incarceration, drug addiction, mental health, and
sentencing.
What has the ACLU of Ohio been up to?
We recently released “Ohio’s Statehouse-to-Prison Pipeline”. This report focuses on the
introduction of bills facilitating the over incarceration problem in Ohio’s prisons.
We previously released a briefing on solitary confinement and the mentally ill, as well as
published letters to the editor.
We sent letters to the Ohio Department of Rehabilitation and Correction, Ohio State
Penitentiary, and a key Ohio lawmaker proposing much needed reforms.
We took a stance on Issue 3, continuing our fight for those who are disenfranchised by on
our draconian drug laws.
Why we do the Likover Lecture
Ed Likover is remembered as an ACLU hero. A longtime ACLU board member and volunteer,
we honor Ed every year because of his tireless efforts to protect civil liberties. Ed stood up for
his right – and the right of others – to have political and social views that diverged from what the
U.S. government considered acceptable. In 1953, he was one of many subpoenaed by the Ohio
Un-American Activities Committee. Against counsel wishes, he took the first amendment as his
defense (rather than the Fifth) because he strongly believed the government had no right
badgering him about his associations or convictions.
-- -- --
Taken from the ACLU of Ohio website at http://www.acluohio.org/blog-posts/the-harsh-realities-
of-prison-through-the-lens-of-piper-kerman on 26 November 2016.
matthew mulch Crime aNd puNishmeNt
iN private prisoNs
I. Introduction This article attempts to analyze the relationship between prison privatiza-
tion and society’s understanding of punishment and criminal justice theory. Simply put, how are our traditional notions of deterrence, retribution, reha- bilitation, incarceration, and restorative justice served when private actors, rather than public institutions, are meting out punishment?
Prison privatization has received a great deal of coverage and analysis over the past decade. The majority of this analysis has focused on the budgetary questions. Can privatized prisons help streamline an extremely expensive industry? Will competition result in cost cutting, skimping, and dangerous conditions for inmates and prison personnel? And, of course, will privatiza- tion in this sector reduce costs in the long run? Or is it merely a short-term solution?
These issues have been addressed numerous times in a variety of ways. My goal here is to provide a more theoretical analysis of prison privatiza- tion. Cost and economic variables will play a role in the analysis; however, the primary goal of this article is to discuss how privatization shapes the conception of the criminal justice system through the eyes of policy makers, inmates, private correctional providers, and society itself. Moreover, this article weighs the economic interests of private prison corporations against the effects of this industry on society as a whole. Economic theory and the bottom line will continue to drive the prison privatization debate. Yet, in a society with a growing number of inmates housed in private facilities it is important to ask how our basic conceptions of criminal justice and punish- ment are changing with the introduction of new private actors.
II. The history and contemporary understanding of prison privatization
First, it is crucial to note that the distinctions between a public, govern- ment-run institution and a private facility are not always clear-cut.1 According to University of Colorado Professor Ahmed White:
To the extent that the state is not ubiquitous, and that the prison is not entirely
__________________________ Matthew Robert Mulch is a graduate of the University of Denver, Sturm College of Law. He is a deputy public defender in Grand Junction, Colorado.
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hermetic, some aspects of every prison are always private. From the labor of its employees, to provisions for inmates’ subsistence needs, to the land and capital that comprise the prison’s physical structure, each exemplifies every prison’s endemically, if partially, private character. In this sense, it is only possible to imagine a fully public prison either in a thoroughly totalitarian society or when the prison itself is (and this would negate its quality as a prison) an entirely self-contained society.2
For the purposes of this article the use of the term privatization will primarily focus on institutions where principal control rests with a private corporation through ownership or leasehold.
Prison privatization is often mistakenly viewed as a modern concept, derived from laissez-faire economic theory first espoused towards the end of the 19th century. Interestingly, however, the first privatized prisons3 pre- date laissez-faire theory.4 According to the Department of Justice, “During the 18th century, the modern prison emerged . . . [and] the use of privately operated facilities became popular.”5 “Popular” is, of course, a relative term, and it should be noted that during this time few institutions resembled modern prisons or jails.6 During this period, government officials would often appoint a head jailer in a particular locality.7 While the jailer held a quasi-public position, it was not uncommon for him to sell the labor of his inmates.8 Moreover, jailers often accepted payment in return for preferential treatment.9 Professor White has likened these post-colonial penitentiaries to European houses of corrections: private institutions that acted as jails, poorhouses, and factories.10
After the Civil War, southern prison populations soared,11 and prison ad- ministrators began the institutionalized practice of outsourcing inmate labor in a system called “convict leasing.”12 According to a Justice Department report “[b]y 1885,states had contracts with private enterprises to lease out prison labor.”13 These contracts took a variety of forms:
At some, companies outside the prison provided raw materials that were refined in prison workshops and later sold by private companies. At others, prisons leased their inmates out to private farms or other businesses if they could not produce salable items within the prison. In a number of states, contractors paid the prison a fee or a percentage of the profits for the right to employ convicts. . . . Even when prisons were not operated entirely by private entrepreneurs, inmates were used as a cheap source of labor. Prisoners often worked on farms, railroads, and mines, in addition to other public work programs.14
Not surprisingly, convict leasing programs were rife with corruption.15 Many of the lessors were government officials.16 Labor contracts were rau- cously disputed, and the states were often underpaid.17 Nevertheless, for a time, the leasing system proved lucrative for those involved.18
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At this time, the criminal justice system in the South heavily disfavored blacks.19 According to contemporary civil rights journalist Ida Wells, in 1892, ninety percent of the convicts in Georgia were black, with the huge majority of them serving disproportionately long sentences.20
Several factors led to the demise of the convict leasing system near the end of the 19th century.21 First, the success of the system created an environment where government officials and entrepreneurs expected to see profitable returns.22 Prisons, however, require enormous overhead and maintenance fees.23 And even the most efficient of the prison administra- tors found themselves struggling to pay for their enterprise and basic inmate amenities.24 Moreover, the work performed by the leased inmates was no- toriously dangerous.25 The loss of a life or a limb was a cost borne by both inmates and administrators.26
Second, opponents of the convict leasing system placed pressure on state legislatures and public officials.27 Farmers, manufacturers, and labor groups attacked the system and the anomalies that it created upon open competi- tion.28 Reformers and religious groups opposed the leasing system on moral grounds.29 And newspaper editors and journalists spent decades attacking the horrible prison conditions.30 State legislatures eventually buckled and “began investigating alleged incidents of mismanagement and cruelty within privatized institutions, resulting in modifications to the leasing system.”31
Third, federal officials began to dismantle the convict leasing system.32 “An executive order signed by President Theodore Roosevelt in 1905 pro- hibited the use of convict labor on federal projects.”33 Twenty-five years later, Congress enacted the Hawes-Cooper Convict Labor Act of 1929, which allowed states to prohibit the importation of convict-manufactured, interstate goods.34
Eventually, by the 1920s, the practice of convict leasing in state-run institutions came to an end.35 After years of statutory reform and optimistic rhetoric, southern states began to move away from the practice.36 And in an uncertain and piecemeal manner “[t]he operations and administrative func- tions in correctional facilities were delegated to governmental agencies, authorized by statute, staffed by government employees, and funded solely by the government.”37 During this time, private organizations continued to play a role within correctional systems, but their involvement was limited to ancillary services38 and secondary facilities.39
In the 1970s, government officials again revisited their relationship with the private sector.40 The first wave of privatization occurred within the ju- venile criminal justice system.41 In 1974, Congress passed the Juvenile and
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Delinquency Prevention Act.42 One of the goals of the Act was “to develop and conduct effective programs to prevent delinquency, to divert juveniles [sic] from the traditional juvenile justice system and to provide critically needed alternatives to institutionalization.”43 According to Professors Patrick Bayer and David Pozen, this act created an incentive for private entrepreneurs and corporations, and “privatization emerged as the primary mechanism for deinstitutionalization.”44 Two years later in 1976, RCA Services, a division of the Radio Corporation of America, “assumed control of Weaversville Intensive Treatment Unit located in North Hampton, Pennsylvania.”45 Al- though the Weaversville facility was a juvenile center, it is widely regarded as the first private institution for serious offenders in the modern era.46 The second institution arrived in 1982, when the Eckerd Corporation, a drug manufacturer and drug store chain, took over control of the Okeechobee School for Boys in Florida.47
In the mid 1980s the federal government began contracting for the private detainment of adult inmates.48 In 1984, the federal Bureau of Prisons signed a three-year deal with Eclectic Communications, Inc., whereby Eclectic would house sixty 18- to 26-year-old offenders at Hidden Valley Ranch in La Honda, California.49 At the same time, the United States Immigration and Naturalization Service (INS) began contracting with private organizations to house undocumented non-citizens.50 “[B]y the end of 1988, the number of private INS detention facilities had grown to seven, housing roughly 800 of the 2,700 aliens in INS custody.”51
The first private state institutions arrived around this time, when the Corrections Corporation of America (CCA) contracted in 1984 for the man- agement of the Hamilton County jail in Tennessee52 and in 1985 for the full operation of the Bay County jail in Florida.53 However, the first privately owned and operated prison did not arrive until early 1985, when United States Corrections Corporation opened the Marion Adjustment Center in Kentucky, a minimum security prison for inmates nearing parole.54 Since that time, private facilities have continued to multiply, and now roughly 120,000 inmates are held in private state or federal facilities.55
This modern shift from public penitentiaries to private facilities did not happen by accident. The United States has the highest per capita prison population in the world caused by a boom in incarceration rates through the 1970s and 1980s56 due in large part to the War on Drugs57 and to longer prison sentences.58 President Ronald Reagan’s Commission on Privatization found that the number of federal and state inmates increased approximately 74 percent from 1979 to 1986.59 From 1970 to 2007, the number of inmates swelled from 196,000 to 1.5 million, an increase of almost 800 percent.60
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According to National Magazine Award-winning author Eric Schlosser, “Since 1980 spending on corrections at the local, state, and federal levels has increased about fivefold.”61
Statistics show a disproportionate effect upon black and Latino male populations.62 According to projections “[i]f current trends continue, it means that a black male in the United States would have about a 1-in-3 chance of going to prison during his lifetime. For a Hispanic male, it’s 1-in-6; for a white male, 1-in-17.”63 Though some commentators argue that this racial disparity is the result of completely legitimate factors,64 the number of mi- nority prisoners is increasing.65 Moreover, the total prison population within the United States is escalating with some state incarceration rates growing at an average of 1.9 percent per year from 2000 to 2005, and 2.8 percent between 2005 and 2006.66
These increases have caused state and federal agencies to turn to the private sector for long-term and stopgap solutions.67
Conflicting interests have created a logjam of sorts, whereby lawmakers have willfully funded the front end of tough on crime bills without consid- ering the budgetary concerns caused by new prisoners and the new prisons needed to house them.68 Due in large part to financial costs, from 2000 to 2006 “the number of Federal prisoners housed in private facilities increased 79 percent; State prisoners, by 15 percent.”69 Some commentators have also argued that the shift has been precipitated by desires to improve innovation, quality, accountability, access to expertise, efficiency, and flexibility.70 These motivations, accurate or not, are clearly subordinate to budgets and bottom lines.71
The private prison industry is still booming. According to a report by the Reason Public Policy Institute “[c]orrections is one of the fastest-growing state budget items. In the last 15 years, state spending on corrections grew more than 350 percent—compared to 250 percent growth for spending on public welfare and 140 percent growth for spending on education.”72 Within this environment, an oligopoly has risen, dominated by CCA and Wacken- hut Corrections Corporation, now known as the GEO Group.73 According to a 1997 Bureau of Justice Statistics survey, within the United States, ten private companies were in charge of at least one state facility.74 However, of the sixty-five private state facilities identified in the survey, CCA or Wackenhut managed forty-nine.75 And in total, the same two companies were under government contracts to manage more than 100 prison facilities,76 accounting for seventy-five percent of all private prison beds.77 To put this in perspective, in 2001 there were only twenty-six total private facilities outside of the United States.78 The current environment is so promising, in
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fact, that CCA has been building prisons on spec, with no contract to build and no prisoners to house.79 According to an AFSCME report, these spec prisons are often sold as economic development projects for the communi- ties in which they are built.80 Under these conditions, the contract bidding process is constrained, and prices are often inflated.81 In spec prisons “[t]he inmates are usually from one or more jurisdictions—often not from the host jurisdiction. The purchasers of spec bed space are typically governments that are desperate to relieve overcrowding. When overcrowding reaches a crisis state, a government will often enter into a sole-source emergency contract at a high per diem rate, generating healthy profits for [the company].”82
It is important to note that crime rates and incarceration rates do not neces- sarily correlate. In other words, a decrease in crime does not necessarily mean that incarceration rates have recently risen, or that they will decrease in the near future.83 Both of these rates are the result of numerous causal factors. And while incarceration rates are shaped by lawbreakers, they are also the result of agency and legislative choices. According to the Federal Bureau of Investigation’s Uniform Crime Reporting Program, property crime offenses have decreased steadily for the past five years.84 And while violent crime offenses have fluctuated recently, the FBI reports that the violent crime rates have generally remained steady for the past five years, about sixty percent lower than in the early 1990s.85
It is always a bad idea to predict future happenings from current trends, particularly in the criminal justice system. However, it seems clear from the foregoing that (1) crime rates have remained somewhat steady, and probably will not drastically increase in the near future, and (2) incarceration rates will continue to grow. In this sort of environment, where demand is not lessening, it seems logical to conclude that private prison companies will continue to play a major role within our criminal justice system. There can be no doubt that private prison companies are in business to generate profits. It remains to be seen whether their existence is changing our conception of criminal punishment.
III. Criminal punishment theory Throughout history social scientists have posited numerous theories
on the underlying purpose of criminal punishment.86 Historically, criminal punishment has been rationalized under two general theories: utilitarian theory and retributive theory.87 Simply put “[r]etributive rationales are es- sentially backward-looking, as they seek to justify punishment on the basis of the offender’s behavior in the past. Utilitarian rationales are essentially forward-looking, as they seek to justify punishment on the basis of the good consequences it is expected to produce in the future.”88 These two general
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theories have then led to the development of more specific rationales, pri- marily: deterrence, retribution, rehabilitation, incarceration, and restorative justice.89 Commentators have noted that these specific rationales often conflict with one another for a variety of reasons.90 For instance a theory of retribution, where punishment is based on the harm caused by crimes, rarely coincides with a theory of rehabilitation. Practically speaking, if a defendant is simply receiving his “just deserts” for a crime, there is no reason to provide treatment for any mental or emotional disabilities that could have precipi- tated the crime. Additionally, on theoretical grounds a hard-line approach to retribution might preclude the possibility of rehabilitation. As the harms committed by certain crimes are simply unimaginable, it stands to reason that a punishment based on retributive theory might not leave any room for rehabilitation programs. Anything less than maximum punishment could be seen as forgiveness or mercy. The theories of criminal punishment are many and will continue to evolve.91
A host of causal factors have shifted emphasis of punishment theory from retribution during its historical genesis,92 to rehabilitation in the mid 1970s,93 and then back to the idea of just deserts over the past decade.94 In this manner, as social perspectives change over time, so does criminal theory and justifications for punishment.95
Lastly, it must be noted that communities are not homogenous.96 “[C]ommunities differ from one another in regard to the kinds of behavior that should receive criminal sanction. The correspondence between the criminal law and what is actually condemned may vary considerably from one commu- nity to another.”97 Additionally, communities by common definition reflect a range of thoughts, ideas, and backgrounds. And it seems not unreasonable to infer that the justification for punishment differs between individuals within a specific community. For instance, in an emotional domestic crime, a prosecutor might seek punishment under a retributive approach. Contrarily, the victim facing a relentless attacker might be concerned primarily with incapacitation, while the defendant’s family seeks rehabilitation.
If there are common understandings to criminal punishment, these under- standings revolve around the idea of using objective, governmental actors98 to confront morally culpable behavior.99 It stands to reason then that privatized prisons necessarily raise questions about the current state of criminal justice and punishment.
Corporations exist to make money. To see a return in a growing market, a profitable prison corporation must either trim inefficiencies, increase inmate numbers, or do both. In other words, the privatized prison industry has incen-
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tives to increase incarceration rates, the length of sentences, worker turnover, and even recidivism rates, all while decreasing expenses. These goals fly in the face of rational public policy—yet many of this nation’s convicted will spend time in a for-profit prison.
In practice, the federal and state prison systems are bureaucratic behe- moths, creating hundreds of thousands of jobs and requiring astronomical budgets.100 Yet in criminal law theory, incarceration is often an afterthought. And by applying criminal theory only during the arrest, indictment, and sentencing phases, we are arguably degrading one of the most important elements of a criminal justice theory: trust.101 Without consistency and the equal application of law, trust breaks down. And without trust, the moral legitimacy of criminal law and punishment declines. It is therefore impera- tive that we ask whether incentives within the private prison industry are harming our notions of criminal justice.
The specific rationales for criminal punishment are discussed in turn.
(A) Deterrence According to the English jurist Jeremy Bentham, one of the principal
rules of punishment is “that the quantity of punishment must not be less . . . than what is sufficient to outweigh the profit of the offence.”102 To Ben- tham, it is not the act of punishment itself that deters, but rather the idea of punishment that acts upon the mind.103 In its essence, deterrence is a theory of criminal punishment based upon the idea that members of society are rational actors capable of making future decisions based on past knowledge and past stimuli.
Modern jurists typically divide deterrence into two subsets: general deter- rence and specific deterrence.104 General deterrence refers to the idea that members of the public can be deterred from committed crimes by witnessing the condemnation and punishment of criminals.105 The public need not actu- ally witness the punishment but must be aware of its magnitude.106
Specific deterrence, on the other hand, is the theory that punishment is capable of deterring criminal behavior within the individual.107 And while recidivism studies are not perfect,108 they do portray the number of past of- fenders who return to the corrections system.
A privatized, for-profit prison corporation has no incentive to deter crimi- nal behavior or support legislation that focuses on deterrence. According to Austin and Coventry, “Firms driven by the profit motive could adversely influence prison population size by lobbying for longer sentences and stricter sentencing guidelines.”109 According to a recent story, CCA and Wacken-
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hut were both supporters of the American Legislative Exchange Council, an organization that develops form codes for state legislators.110 And both corporations were on the organization’s Criminal Justice Task Force when it drafted Pennsylvania’s tough on crime bill and three strikes bill.111 Another report indicates that private prison corporations paid $1.1 million to Texas lobbyists in 2007, three times more than in 2005.112
It seems axiomatic, in fact, that a prison corporation would have limited interest in an effective criminal deterrent scheme. According to Eric Schlosser “[t]he private-prison industry usually charges its customers a daily rate for each inmate; the success or failure of a private prison is determined by the number of ‘man-days’ it can generate.”113 Effective general deterrence leads to fewer prisoners. And fewer prisoners lead to lower profits. Now this is not to say that a corporation would be opposed to all legislation based on deterrence. Just as criminal punishment is justified by the myriad theories of criminal law, so too is legislation. A bill might be justified and sponsored for its deterrent effect. Yet, as evidenced by recent three-strike bills, rhetoric does not always conform to reality, in that the practical effects of legislation sometimes do not correlate with the proposed rationales.114
Moreover, tough on crime bills illustrate a second problem. Schemes geared towards reducing recidivism rates by deterring offenders with tough prison sentences, can have the secondary effect of increasing prison terms overall.115 In essence then, by trying to address specific deterrence, a state might actually increase total “man-days” by escalating penalties for the convicted.
All told, successful corporations are those that can maximize utility in the long term.116 A rational prison corporation, by definition, would not and should not seek to reduce total inmate numbers in the majority of circumstanc- es. And yet of all the rationales for criminal punishment, deterrence seems to be the most laudable. Fewer crimes and fewer incarcerated individuals are goals that virtually everyone can agree are worth working towards.
(B) Retribution Often associated with 18th century German philosopher Immanuel
Kant,117 retributive theory states that punishment is something a criminal deserves and, in fact, is morally required.118 Under this doctrine, rules are established for order and the collective good.119 And when these rules are violated, it is necessary for society to address the perpetrator, the victim, and the crime in an authoritative manner.120
Many jurists have argued that the rationale behind retributive theory is not entirely clear, as renowned legal theorist H.L.A.Hart explains:
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To some critics it appears to be a mysterious piece of moral alchemy in which the combination of the two evils of moral wickedness and suffering are transmuted into good; to others the theory seems to be the abandonment of any serious attempt to provide a moral justification for punishment. Other critics still regard it as a primitive confusion of the principles of punish- ment. . . . In its most interesting form modern retributive theory has shifted the emphasis, from the alleged justice or intrinsic goodness of the return of suffering for moral evil done, to the value of the authoritative expression, in the form of punishment, of moral condemnation for the moral wickedness involved in the offence.121
Some commentators have argued that retributive theory is little more than vengeance.122 Regardless, retribution is, by all accounts difficult to analyze in empirical terms.123 Professor Banks argues that retribution is akin to censure as the punishment carries expressive or communicative themes.124 She goes on to explain that “[t]his conception recognizes punishment as comprising not merely harsh treatment, but also elements of condemnation, denuncia- tion, and censure.”125
Accordingly, while retributive theory cannot be evaluated in terms of statistics and incentives, privatization raises questions as to the common sense understanding of social condemnation. In response, commentators have noted that private prisons are objectionable on moral and normative grounds.126 Professor Dan Markel has argued that this normative opposition can be expressed under three different theories.127 He states:
First, one might view the use of private prisons as expressing a message of the state’s indifference to the offense. . . . [Second] using private prisons may appear to commodify inmates in a manner antithetical to a state’s duty to respect the dignity of its citizens . . . [Third] the use of private prisons permits the “state to offload custodial responsibility for convicted offenders to institutions only derivatively committed to the values and obligations of the ethical liberal polity, thus itself constituting a violation of those values and obligations.”128
The second theory highlights the idea that, in practice, inmates are often considered a resource.129 While not always acknowledged, crime is about economics and value.130 And simply put, certain individuals might be worth more behind prison bars than in the workforce. For better or worse, inmates create jobs and new prisons are often sold on the promise of revitalizing communities.131 Given the option, most communities would trade an illicit workforce for the economic stimuli provided by a new prison.132
Markel’s first and third theories133 directly address the idea of responsibil- ity. Some critics have suggested that the state—as legislator, investigator, and adjudicator—also has the duty to enforce its decisions. State responsi-
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bility demonstrates an element of fairness with respect to the inmate. More importantly, public penitentiaries demonstrate state commitment to criminal law and social accountability. Retribution is based on the idea that actors are responsible for their actions.134 However, a state that relies on private corpo- rations to deliver its retributive messages faces a difficult sell. A state that privatizes its facilities compromises its retributive message. Simply put—it appears hypocritical when a state cannot live up to its own responsibilities, and yet attempts to hold individuals responsible for their actions.
(C) Rehabilitation In 1949, Justice Hugo Black stated “[r]etribution is no longer the dominant
objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence.”135 Rehabilitation is a complicated mix of practice and theory.136 In practice, rehabilitative pro- grams are designed to remedy past problems and addictions and to provide assistance and educational tools for future success. In theory, the doctrine of rehabilitation looks past the immediate choices of criminal behavior, and attempts to question patterns of behavior within individuals, families, and larger social networks. However, the doctrine of rehabilitation has been attacked for providing more questions than answers. Since the mid 1970s, the doctrine of rehabilitation has been largely dormant after several com- mentators came to the conclusion that most rehabilitative programs failed to provide adequate solutions.137
In theory rehabilitation is clearly a worthwhile goal. Criminologists have proposed never-ending lists of the causal factors that lead to crime.138 And a penal system that fails to address causal factors within the individual and within society, will inevitably fail to prevent crime in the long-term. The incentive for the state then, is to provide effective programs for both defendants and for the communities in which they live. In many ways, the theory of rehabilitation lives on the other side of the deterrence coin: provid- ing carrots, rather than sticks. It is not entirely clear why the private industry would be interested in reforming and rehabilitating inmates, or supporting alternative sentencing schemes.
According to political scientist Katri Sieberg, “To make a profit, normal businesses need to attract customers. This is done through advertising and other marketing devices. To make a profit, a prison needs a steady or in- creasing flow of prisoners. Thus, the incentives exist for private prisons to lobby for increased prison time, rather than alternative sentences, to punish crimes.”139 A recent Department of Justice report supports this argument, stating “arguably, it is in the operator’s financial interests to encourage lengthier sentences for inmates to keep bed spaces filled.”140
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Rehabilitation is a goal geared towards the long-term. Effective rehabili- tation programs are costly and often require years of trial and error.141 As would be expected, the private prison industry has cut many rehabilitative programs in order to save money.142 Rehabilitative programs, however, have both direct and indirect effects.143 Studies have shown that in the absence of rehabilitative programs, inmates receive counseling of another, more sinister kind from their fellow inmates.144 According to Sieberg “In this type of a community of criminals, with the wrong type of career reinforcement, there is an understandable increase in recidivism. . . . [B]y eliminating those pro- grams that are intended to adjust a criminal to an acceptable societal role, we achieve false economic savings.”145 In addition, Sieberg argues that alternative sentencing schemes would actually reduce government spending, by nearly eliminating housing and funding costs.146
It is difficult to see how effective rehabilitation schemes would benefit the prison industry. If we view inmates as resources or commodities, it sim- ply does not stand to reason that a corporation would have any incentive to give inmates the tools necessary to escape the prison cycle. Such acts are contrary to the very idea of capitalism, as they would result in the depletion of resources and increased operating costs.
(D) Incarceration Incarceration serves as both a theory of criminal punishment, and a device
to implement the theories of deterrence, rehabilitation and retribution.147 As a theory of criminal justice, incarceration serves the public by removing dangerous individuals from the community. Unfortunately, not all criminals are capable of effective rehabilitation or deterrence. Therefore, incarceration aims at “isolating dangerous and recidivist criminals from the law-abiding public and thereby enhancing public safety.”148 However, communities do not begin and end at the prison house gates. In light of this, effective incar- ceration requires the removal of dangerous threats from the public at large and the reduction of similar dangers from within the prison community.
“A leading criticism of prison contractors is that they maximize profits through dangerous cuts in staff levels, staff training and staff pay.”149 As Sieberg explains, the privatized prison industry can hire, move, and terminate workers quickly, as the companies are not unionized.150 Not surprisingly, an underpaid and undertrained prison force can be dangerous for those on the inside as well as the outside.
According to Austin and Coventry’s Department of Justice report, “A total of 45 escapes occurred at 14 private facilities between January 1, 1997, and December 31, 1997. The Rate of escapes per 1,000 inmates for the sixty-
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two private facilities [was] 1.06 percent.”151 Similarly, a 1999 report by the Federal Bureau of Prisons noted that privately operated facilities used more staff, had a higher turnover rate, and had “much higher escape rates from secure institutions” than the public federal system did.152 In one of the most egregious displays of ineffective incarceration, the Northeast Ohio Correction Center in Youngstown, Ohio—a spec CCA prison—witnessed six escapes in its first fifteen months of operation.153 Five of the six escapees were con- victed murderers, and all of them were maximum-security inmates.154 Austin and Coventry noted that operational flaws such as escapes “were linked to inexperienced staff, [and] inadequate training.”155
Ineffective incarceration also presents dangers to prison guards, administra- tors and inmates.156 Over the past decade there have been numerous reports de- tailing violence and sub-standard prison conditions within the private sector:
In 2007, the ACLU filed suit against the Department of Homeland Security and CCA, alleging that a federal immigration facility near San Diego was housing three inmates in two bed cells.157 In Idaho, a recent report indicated that the State’s only privately owned prison had an inmate violence rate three times higher than that of the public facilities.158 A report by the Texas Youth Commission from September 26 to October 2, 2007 listed 21 major operational and security issues at the Coke County Juvenile Justice Center in Bronte, Texas.159 The report detailed “flagrant” violations such as double-bunking youths, racial segregation, and an inmate work schedule for hours between 10:00 p.m. and 4:30 a.m.160
In addition to the six escapes, the Northeast Ohio Correction Center saw seventeen stabbings, numerous assaults on prison personnel, and two murders in under a year and a half of operation.161 Ultimately, the town of Youngstown filed a successful suit on behalf of the inmates alleging that the inmates were in danger due to the company’s housing practices.162 And in 2000, Wackenhut relinquished its contract for a juvenile center in Jena, Louisiana after the Department of Justice filed a suit alleging physi- cal and verbal abuse, and the inappropriate use of pepper spray.163
While shocking, these stories do not appear to be aberrations. According to the Department of Justice, in total there are greater numbers of inmate- on-inmate assaults in private prisons (35.1 percent) as compared to public facilities (25.4 percent).164
While we often think of incarceration as an end product in criminal law theory, for most individuals, incarceration is only temporary. And when a
83crime and punishment in private prisons
corporation has incentives to skimp on personnel, infrastructure, and training, it necessarily raises questions as to the effectiveness of criminal isolation and may increase the likelihood of recidivism. Prisons will never be “safe” places. But they also need not be excessively dangerous or uninhabitable.
(E) Restorative justice Referring to the 2008 recession, the President and Chief Operations Of-
ficer of Corrections Corporation stated that “[t]here is going to be a larger opportunity for us in the future.”165 Just as with rehabilitation, one must question how much of an incentive privatized prisons have to follow a theory of restorative justice.166 Restorative justice, or restitution, is in many ways a blend of civil and criminal law. Instead of focusing on the perpetrator himself, a restorative justice approach seeks to mend the harm of criminal activity by making the victim whole.167 Not surprisingly, punishment and incarceration are not always the principle aims of restitution.
Accordingly, critics have noted that there are several problems with a restorative justice approach. First, a criminal justice scheme based on restorative principles grants elevated roles to victims and victim advocacy groups.168 And while it is important for society and juries to see the harm caused by criminal behavior, it must be weighed with the understanding that victims are rarely objective. Second, restitution is not applicable for every crime.169 By placing monetary value on criminal behavior, we risk a society where all losses can be compensated. Moreover, such a system would favor the wealthy, and create incentives for calculated criminal behavior in situ- ations where the rewards outweighed the risks. In light of this, many feel that values should take precedence over value, and restorative justice should play only a limited role in the criminal justice system.170
Nevertheless, there are times when restitution may play a more effective role in the criminal justice system than incarceration.171 For instance, with juvenile offenders it may be more advantageous to society for the young of- fenders to learn the true value of crime, by working to compensate the victim. Furthermore, some argue that drug crimes, in particular, should be analyzed under restorative approach rather than a retributive model.172
In addition, some commentators have noted that restorative justice mod- els actually aid in the rehabilitation process.173 For example, certain Native American communities use peacemaking circles to confront criminal behav- ior.174 These peacemaking circles “[do] not treat the criminal act as an isolated incident that demands merely retributive action. Rather, any resolution must take an inclusive approach, considering the impact of the crime and possible redress on all parties and the community as a whole.”175
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Common sense argues that any restorative approach that does not require incarceration would be inapposite to a business oriented approach to criminal justice. Victim compensation creates competition. And although the inmate population rate is growing in the United States,176 it seems reasonable to conclude that the private prison industry would be careful to monitor its only resource, and necessarily oppose restitution and alternative sanctions.
IV. Conclusion The economic benefits of prison privatization may or may not exist. To
the extent they do, they are fleeting. Regardless, focusing only upon the bottom line oversimplifies the subject. Social acceptance of prisons requires moral legitimacy within the criminal justice system. A scheme that shifts responsibility to the private sector necessarily raises questions regarding the importance of criminal law and the rationales for punishment. The true value of any criminal justice system must be measured in terms of the benefits accrued by society. Accordingly, when we look at private prisons we must ask if the alleged but highly disputed benefits of efficiency outweigh the burdens, dangers, and doubts that are known to accompany the privatized prison industry. ________________ NOTES 1. See Geoffrey f. SeGal, reaSon Public Policy inStitute, the extent,
hiStory, and role of Private comPanieS in the delivery of correctional ServiceS in the united StateS 3 (2002), available at http://reason.org/ps302. pdf (The author divides private prison services into three categories: design and construction; ancillary services such as food and medical care; and contract man- agement or ownership of prison facilities).
2. Ahmed A. White, Rule of Law and the Limits of Sovereignty: The Private Prison in Jurisprudential Perspective, 38 am. crim. l. rev. 111, 121 (2001).
3. Id. at 120 (“Neither the term ‘prison’ nor ‘private prison’ has a self-evident meaning. . . . At various points it has contemplated everything from facilities for detaining juveniles and undocumented immigrants, to ‘halfway’ houses, to city and county jails housing misdemeanants and those awaiting trial, to the quintessential ‘big houses,’ huge self-contained edifices brimming over with hardened felons, that continue to dominate the prison landscape.”).
4. See JameS auStin & Garry coventry, national council on crime and delinquency, dePartment of JuStice, emerGinG iSSueS on Privatized PriSonS 19 (2001), http://www.ncjrs.gov/pdffiles1/bja/181249.pdf (The authors argue that the history of privatization in the criminal justice system within U.S. territory can be traced back to the early colonial period, where low-level felons were granted amnesty in return for their indentured servitude); see also Sharon Dolovich, State Punishment and Private Prisons, 55 duke l.J. 437, 450 (2005) (“In colonial America, the meting out of criminal punishment was purely a local
85crime and punishment in private prisons
matter and could include any of a range of sanctions, among them fines, flogging, the stockade, banishment, and the gallows—but not imprisonment. As in eigh- teenth-century England, jails were merely holding chambers for debtors or for those individuals awaiting trial or punishment.”).
5. auStin & coventry, supra note 4, at 19; see, e.g., StePhen raher, colorado criminal JuStice reform coalition, Private PriSonS and Public money (2002), http://www.ccjrc.org/pdf/CostDataReport2002.pdf (“The operation of pris- ons for private gain first surfaced in the United States shortly after the Civil War, when prison populations in southern states skyrocketed and a system of ‘convict leasing’ was devised in order to relieve over crowded prisons and enrich private manufacturing concerns.”).
6. White, supra note 2, at 124 (arguing that extra-legal punishments and labor short- ages largely prevented the establishment of formal institutions).
7. See auStin & coventry, supra note 4, at 9. 8. Id.at 9. 9. Id. at 10 (citing clair criPe, leGal aSPectS of correctional manaGement
378 (1997)) (“Payments were extracted for special services, such as better meals or other privileges. Some money was given to the jailer (often the sheriff) for basic services. But it was widely accepted that jailers could charge additional money for virtually any type of special benefit.”).
10. White, supra note 2, at 124. 11. See alex lichtenStein, twice the work of free labor 60 (1995) (demon-
strating that the number of convicts in the Georgia Penitentiary grew from 385 in 1871 to 2558 in 1909, nearly a seven-fold increase).
12. raher, supra note 5, at 4; see Dolovich, supra note 4, at 450-51 (arguing that the first prison labor programs were designed to be rehabilitating).
13. auStin & coventry, supra note 4, at 10; see, e.g., White, supra note 2, at 127 (“Every southern state after the Civil War, except Virginia, eventually instituted the widespread leasing of state inmates to private individuals or firms.”).
14. auStin & coventry, supra note 4, at 10-11 (“For most of the correctional history of the United States, prison labor was expected to generate a profit for the institu- tion. If generating a profit was not feasible, it was incumbent upon the prisoner to pay the costs of incarceration and become self-supporting.”).
15. White, supra note 2, at 127-30. 16. Id. at 129. 17. Id. at FN64. 18. White, supra note 2, at 128 (“On average, leasing generated revenues several times
the costs. At one point, for example, Alabama derived six to ten percent of its total state revenues from leasing—and this in contrast to the prospect of actually paying for incarceration.”).
19. Ida b. wellS & frederick douGlaSS et. al., the reaSon why the colored american iS not in the world’S columbian exPoSition, chapter iii (1893), available at http://digital.library.upenn.edu/women/wells/ exposition/exposition.html.
86 national lawyers guild review
20. Id.; see Dolovich, supra note 4, at 451-52 (illustrating Mississippi’s “Pig Law” which provided a five year sentence for theft of a farm animal, a law aimed at newly freed slaves).
21. auStin & coventry, supra note 4, at 11. 22. Id.at 11. 23. Id. at 11. 24. Id.at 11. 25. Gilder lehrman center, forced labor in the 19th century South, the
Story of Parchman farm 2, avaiable at http://www.yale.edu/glc/events/cbss/ Oshinsky.pdf (last visited Sept. 25, 2009).
26. See id. (“At a prison camp of the Greenwood and August Railroad, convicts were used up faster than South Carolina authorities could supply them. Between 1877 and 1879, the G & A ‘lost’ 128 of their 285 prisoners to gunshots, accidents, and disease (a death rate of 45 percent) and another thirty-nine to escapes.”); matthew zito, international foundation for Protection officerS, PriSon Privatization: PaSt and PreSent (2003), http://www.ifpo.org/articlebank/prison_privatization. html (“In one camp the reported mortality rate of convicts was 10% per month, and at other camps it was even higher.”).
27. auStin & coventry, supra note 4, at 11. 28. Id. at 11. 29. Id.; see wellS & douGlaSS et al., supra note 18, Chapter III; see zito, supra
note 26 (noting that “women and children as young as twelve years old . . . were housed together with hardened criminals, and it was not uncommon for babies to be born inside the camps.”).
30. matthew J. mancini, one dieS, Get another, convict leaSinG in the american South, 1866-1928, at 219 (1996).
31. auStin & coventry, supra note 4, at 11; see also mancini, supra note 30, at 221 (The author notes that some historians have argued that rise of the Democratic party may have played a contributing factor. This explanation places a heavy emphasis on a political rationale, rather than ethical or humanitarian justifications.).
32. auStin & coventry, supra note 4, at 11. 33. Id. at 11. 34. Id.; Whitfield v. Ohio, 297 U.S. 431, 434 (1936) (citing the Hawes-Cooper Act,
49 U.S.C. § 60 (1929) (no longer in force)) (“All goods, wares, and merchandise manufactured, produced, or mined, wholly or in part, by convicts or prisoners, except convicts or prisoners on parole or probation, or in any penal and/or reformatory institutions, except commodities manufactured in Federal penal and correctional in- stitutions for use by the Federal Government, transported into any State or Territory of the United States and remaining therein for use, consumption, sale, or storage, shall upon arrival and delivery in such State or Territory be subject to the operation and effect of the laws of such State or Territory to the same extent and in the same manner as though such goods, wares, and merchandise had been manufactured, produced, or mined in such State or Territory, and shall not be exempt therefrom by reason of being introduced in the original package or otherwise.”).
87crime and punishment in private prisons
35. White, supra note 2, at 133 (The author notes, however, that convict leasing re- mained at the county level until well into the civil rights era).
36. mancini, supra note 30, at 222 (noting that Alabama, Arkansas, and Mississippi continued to allow convict leasing decades after legally prohibiting the practice).
37. auStin & coventry, supra note 4, at 11. But see lichtenStein, supra note 11, at 185 (arguing that in many instances the public chain gang replaced convict leasing, not necessarily, the more modern public penitentiary).
38. auStin & coventry, supra note 4, at 11 (noting such services as food preparation, vocational training, inmate transportation, medical care, dental care, and mental health care).
39. Nicole B. Casarez, Furthering the Accountability Principle in Privatized Federal Corrections: The Need for Access to Private Prison Records, 28 u. michiGan J.l. reform 249, 253-54 (1995) (describing juvenile homes, halfway houses, and federal pre-release community treatment centers).
40. auStin & coventry, supra note 4, at 12. 41. Id. at 12. 42. Juvenile and Delinquency Prevention Act of 1974, Pub. L. No. 93-415, 88 Stat.
1109. 43. Id. § 102(B)(2). 44. Patrick bayer & david e. Pozen, economic Growth center, the
effectiveneSS of Juvenile correctional facilitieS: Public verSuS Private manaGement 4 (2003), available at http://www.econ.yale.edu/growth_pdf/ cdp863.pdf.
45. auStin & coventry, supra note 4, at 12. 46. Id. at 12; see charleS h. loGan, Private PriSonS 18 (1990) (stating that the
facility housed 15-18 year old males who had committed crimes such as “burglary, robbery, assault, sex offenses, weapons offenses, arson, vandalism, and theft”).
47. auStin & coventry, supra note 4, at 12; loGan, supra note 41, at 18 (the author notes that the Okeechobee school housed 400 to 450 boys, far more than Weaversville’s 22 inmates).
48. See loGan, supra note 46, at 21. 49. Id. at 21. 50. Id.at 21. 51. auStin & coventry, supra note 4, at 12. 52. Id. at 12; loGan, supra note 46, at 31; see also Judith Greene, Comparing Private
and Public Prison Services and Programs in Minnesota: Findings from Prisoner Interviews 1 (1999), available at http://archive.epinet.org/real_media/010111/ma- terials/greene.pdf (stating that CCA unsuccessfully attempted to contract for the entire Tennessee system for 250 million dollars).
53. loGan, supra note 46, at 24-25 (CCA did officially gain title to the jail until 1986). From 1987 to 1997, CCA’s revenue stream increased thirty fold, while its beds grew from 1,715 to 52,890. See auStin & coventry, supra note 4, at 12.
54. auStin & coventry, supra note 4, at 12.
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55. See office of JuStice ProGramS, united State dePartment of JuStice, bureau of JuStice StatiSticS, PriSonerS in 2006, at 5 (Dec. 2006), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/p06.pdf.
56. Judith Greene, Banking on the Prison Boom, PriSon ProfiteerS 3 (2007), 4 (Tara Herivel & Paul Wright ed., 2007).
57. Gary Hunter & Peter Wagner, Prisons, Politics, and the Census, PriSon ProfiteerS 80 (2007), 81 (Tara Herivel & Paul Wright ed., 2007).
58. Jfa inStitute, unlockinG america, why and how to reduce america’S PriSon PoPulation 8 (2007), available at http://www.jfa-associates.com/pub- lications/srs/UnlockingAmerica.pdf; see also franklin e. zimrinG, Gordon hawkinS, & Sam kamin, PuniShment and democracy 6 (2003) (analyzing California’s three strike rule for habitual offenders, a ballot initiative).
59. Casarez, supra note 39, at 254. 60. Jfa inStitute, supra note 58, at 6; see also Public Safety Performance
ProJect, Pew charitable truSt, Public Safety, Public SPendinG, forecaStinG america’S PriSon PoPulation 2007-2011, at 4-5 (2007), available at http://www.pewcenteronthestates.org/uploadedFiles/Public%20Safety%20Pub lic%20Spending.pdf (The organization predicts a prison rate increase of 192,000 people over the next five years, nearly matching the total population in 1970. The organization further forecasts that western states such as Colorado, Montana, and Wyoming will see total rate increases of more than 25 percent.).
61. Eric Schlosser, The Prison-Industrial Complex, the atlantic, Dec. 1998, http:// www.theatlantic.com/doc/print/199812/prisons.
62. Gail Russell Chaddock, US Notches World’s Highest Incarceration Rate, chriStian Science monitor, Aug. 18, 2003, http://www.csmonitor.com/2003/0818/p02s01- usju.html.
63. Id.; see human riGhtS watch, backGrounder: incarcerated america (April, 2003), http://www.hrw.org/backgrounder/usa/incarceration/ (Noting that in twenty states, the percentage of blacks within the prison population was at least five times greater than the total percentage of their state resident population. Strangely, the majority of these states, including Colorado, were in upper West and Midwest. South Dakota, Vermont, and West Virginia lead the nation with ratios over ten.).
64. See william wilbankS, the myth of a raciSt criminal JuStice SyStem (1987), available at http://www.radford.edu/~tburke/Burke/The%20myth%20of %20a%20racist%20criminal%20justice%20system.pdf.
65. See PriSonerS in 2006, supra note 55, at 7 (The study notes that while the total number of black prisoners has increased from 2000 to 2006, the actual rate has dropped. Both the white and Hispanic rates increased).
66. Id. at 1 & 14 (Federal incarceration rates experienced an average annual growth rate of 5.8% from 2000 to 2005, and 2.9% from 2005 to 2006). For the purpose of this article, it is also important to note that roughly 4.3 million former prisoners live outside the criminal justice system. And whether our focus is upon theory or hard evidence, such as recidivism rates, it is important that we note the thousands of individuals existing in private prisons every year. Chaddock, supra note 62.
89crime and punishment in private prisons
67. See SeGal, supra note 1, at 2. 68. Id. (needs to be more clear, need to find page to reference, I can’t find it) 69. See PriSonerS in 2006, supra note 55, at 5. 70. See SeGal, supra note 1, at 6-10. 71. Id. (citing keon chi and cindy JaSPer, council of State GovernmentS,
Private PracticeS: a review of Privatization in State Government 8 (1998) (noting that the rationales were rated as reasons for privatization in about 20% of the agencies surveyed)).
72. See SeGal, supra note 1, at 2. 73. auStin & coventry, supra note 4, at 40. 74. Id. at 39. 75. Id. at 40. A 1999 report by the American Federation of State, County and
Municipal Employees puts the number of private corporations at twelve. afScme, PublicationS, the induStry (2008), http://www.afscme.org/publications/2558. cfm.
76. Kelly Patricia O’Meara, Prison Labor is a Growth Industry, inSiGht on the newS, May 24, 1999, available at http://findarticles.com/p/articles/mi _m1571/is_19_15/ai_54736555.
77. AFSCME, supra note 75. 78. auStin & coventry, supra note 4, at ix (these prisons were housed in the United
Kingdom, Australia, and South Africa). 79. Schlosser, supra note 61. 80. See AFSCME, supra note 75. 81. See id.at 75. 82. Id.at 75. 83. See JuStice Policy inStitute, violent crime fell in 2007; PriSon and
JailS exPerienced leSS Growth than PreviouS yearS: areaS with lower incarceration rateS exPerienced Greater crime reductionS, http://www. justicepolicy.org/images/upload/08-09_FAC_FBIUCR2007_AC-PS.pdf (last vis- ited Sept. 26, 2009).
84. federal bureau of inveStiGation, ProPerty crime, crime in the united StateS 2007, available at http://www.fbi.gov/ucr/cius2007/offenses/property_ crime/index.html.
85. federal bureau of inveStiGation, crime in the united StateS 2007, Table 1, available at http://www.fbi.gov/ucr/cius2007/data/table_01.html.
86. John w. SutherS, no hiGher callinG, no Greater reSPonSibility, a ProSecutor makeS hiS caSe 43 (2008) (“Arguments about the purpose of pun- ishment are as old as civilization.”).
87. Sanford h. kadiSh et al., criminal law and itS ProceSSeS 79 (8th ed. 2007); cyndi bankS, criminal JuStice ethicS 105 (2004).
88. kadiSh, supra note 87, at 79. 89. bankS, supra note 87, at 104-05; SutherS, supra note 86, at 43-54.
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90. See bankS, supra note 84, at 104. 91. Id. at 104. 92. See id. at 105. 93. kadiSh, supra note 87, at 99. 94. See bankS, supra note 87, at 104. 95. Id.at 104. 96. richard quinney & a. Javier trevino, the Social reality of crime 115
(2001). 97. Id.at 115. 98. kadiSh, supra note 87, at 1. 99. Peter Arenella, Convicting the Morally Blameless: Reassessing the Relationship
between Legal and Moral Accountability, 39 ucla l. rev. 1511, 1528 (1992). 100. See federal bureau of PriSonS, budGetary Summary, available at http://
www.usdoj.gov/jmd/2009summary/pdf/bop-bud-summary.pdf (requesting just over $12 billion for the 2009 year); colorado dePartment of correctionS, fy 2009-10 budGet cycle 8, available at http://www.colorado.gov/cs/Satellite ?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=Mu ngoBlobs&blobwhere=1227051791486&ssbinary=true (requesting $824 million dollars for the 2009-2010 fiscal year, up from $761 million).
101. See generally, Associate Attorney General Daniel Marcus, Building Trust and Confidence in the Criminal Justice System, Remarks to the 203rd Federal Bureau of Investigation Academy Class (Oct. 17, 2000), http://www.usdoj.gov/archive// aag/speeches/2000/cp_fbi_marcus_remarks.htm.
102. Jeremy bentham, an introduction to the PrinciPleS of moralS and leGiSlation 189 (A New Ed., 1907).
103. Id. at 193. 104. Mark C. Stafford & Mark Warr, A Reconceptualization of General and Specific
Deterrence, in contemPorary criminoloGical theory 26, 26 (Peter Cordella & Larry J. Siegel ed., 1996).
105. See id.at 26. 106. See bentham, supra note 102. 107. See id. at 102. 108. See generally auStralian inStitute of criminoloGy, ProblemS aSSociated
with meaSurinG recidiviSm, available at http://www.aic.gov.au/publications/ rpp/17/problems.pdf (last visited Dec. 13, 2008).
109. auStin & coventry, supra note 4, at 17. 110. Sarah Posner, Security for Sale, the american ProSPect, Dec. 18, 2005, avail-
able at http://www.prospect.org/cs/articles?articleId=10750. 111. Id. 112. Lauren Reinlie, Lax Oversight Plagues Private Prisons in Texas, 1.9 watch your
aSSetS 5, Feb. 6, 2008, http://www.tpj.org/watchyourassets/prisons/prisons.pdf. 113. Schlosser, supra note 61.
91crime and punishment in private prisons
114. zimrinG, hawkinS, & kamin, supra note 58, at 85 (noting that California’s three- strike rule seems to deter felonious crime by only 0-2%).
115. See generally Paul Gendreau et al., Solicitor General canada, the effectS of PriSon SentenceS on recidiviSm (1999), available at http://www. prisonpolicy.org/scans/gendreau.pdf.
116. See milton friedman & Steven medema, Price theory 280 (new ed., 2007).
117. robert cryer et al., an introduction to international criminal law and Procedure 19 (2007).
118. See bankS, supra note 87, at 109. 119. See id. at 109. 120. See id. at 110. 121. h. l. a. hart, PuniShment and reSPonSibility 234-35 (1968), available at
http://www.stephankinsella.com/texts/hart_punishment-responsibility.pdf. 122. See kadiSh, supra note 87, at 85. 123. See Developments in Law, III. A Tale of Two Systems: Cost, Quality, and
Accountability in Private Prisons, 115 harv. l. rev. 1868, 1871-72 (2002) (not- ing that space constraints preclude the moral debate).
124. bankS, supra note 87, at 110; see andrew von hirSch, cenSure and SanctionS 9 (2003).
125. bankS, supra note 87, at 110-11. 126. See auStin & coventry, supra note 4, at 16 (“As a policy matter, opponents
to privatization . . . claim it is inappropriate to operate prisons based on a profit motive.”); Jody Freeman, The Contracting State, 28 fla. St. u. l. rev. 155, 188 (2000) (““the private interest in maximizing profits may conflict with the public interest in sound correctional policies”).
127. Dan Markel, Are Shaming Punishments Beautifully Retributive? Retribution and the Implications for the Alternative Sanctions Debate, 54 vand. l. rev. 2157, 2234 (2001).
128. Id. (quoting Sharon dolovich, the ethicS of Private PriSonS (1999) (an unpublished document)).
129. See hunter & waGner, supra note 57, at 82. The authors present an interesting argument regarding the usage of inmates to expand rural census counts. Regarding the 2000 U.S. census, they state “there are twenty-one counties where a least 21 per- cent of the reported census population is actually incarcerated people from outside the county. In 173 counties, more than half of the African American population reported in the census is incarcerated.”
130. See clarence darrow, crime and criminalS, an addreSS to the PriSonerS in the chicaGo Jail (1919).
131. Schlosser, supra note 61 (“Prison jobs have slowed the exodus from small towns, by allowing young people to remain in the area. . . . The job brings health benefits and a pension.”).
132. However, as Schlosser notes, the economic transference is typically geographical as well across sector. Id.
92 national lawyers guild review
133. Markel, supra note 127, at 2234. 134. bankS, supra note 87, at 109. 135. Williams v. New York, 337 U.S. 241, 248 (1949). 136. See bankS, supra note 87, at 116. 137. Id. at 117; kadiSh, supra note 87, at 99. 138. See generally StePhan hurwitz & karl o. chriStianSen, criminoloGy 1
(1983). 139. katri k. SieberG, criminal dilemmaS 45 (2001). 140. auStin & coventry, supra note 4, at 16. 141. See generally SieberG, supra note 138, at 10. 142. Id. at 10; see also Freeman, supra note 126, at 188 (“Private prison officials and
private guards exercise discretion over every aspect of the prisoners’ daily experi- ence: meals, health care, recreation, cell conditions, transportation, work assign- ments, visitation, and parole. Private prison officials determine when infractions occur, impose punishments and, perhaps most significantly, make recommendations to parole boards. Their discretion affects prisoners’ most fundamental liberty and security interests.”). But see auStin & coventry, supra note 1, at 55 (noting that inmates in private facilities had greater degrees of participation in educational programs, vocational programs, drug and alcohol counseling courses).
143. See SieberG, supra note 139, at 10 (using the terms “positive” and “negative” influences).
144. Id. at 10. 145. Id. at 10. 146. Id. at 12. 147. See John J. Dilulio, Jr., Prisons are a Bargain, by Any Measure, N.Y. timeS, Jan.
16, 1996, in kadiSh, supra note 87, at 102. 148. SutherS, supra note 86, at 52. 149. Reinlie, supra note 112, at 4; auStin & coventry, supra note 1, at 16 (“Labor
costs are controlled by reducing one of more of the following personnel cost fac- tors: (1) number of staff, (2) wages, or (3) fringe benefits. . . . Prisons are extremely labor intensive, with approximately 65 to 70 percent of the costs of operating a prison going to staff salaries, fringe benefits, and overtime. Controlling these costs is more difficult to achieve with unionized government workers.”).
150. SieberG, supra note 103, at 38. 151. auStin & coventry, supra note 4, at 47. 152. Scott d. camP & Gerald G. GaeS, federal bureau of PriSonS,
Growth and quality of u.S. Private PriSonS: evidence from a national Survey 435 (2006), available at http://www3.interscience.wiley. com/cgi-bin/fulltext/118964088/PDFSTART.
153. auStin & coventry, supra note 4, at 49. 154. camP & GaeS, supra note 153, at 430.
93crime and punishment in private prisons
155. auStin & coventry, supra note 4, at 49; camP & GaeS, supra note 153, at 432 (finding problems in “inadequate numbers of staff, inexperienced staff, insufficiently trained staff . . . and physical plant deficiencies”).
156. See Freeman, supra note 126, at 188 (“the relative invisibility and low moral status of the prison population makes prisoners especially vulnerable and heightens the need for accountability”).
157. ACLU Signs Off on Otay Mesa Detainee Overcrowding Deal, San dieGo 6, http://www.sandiego6.com/news/local/story.aspx?content_id=c4ca75a4-e665- 4535-8cb0-44070322f2e3&gsa=true (last visited Sept. 26, 2009).
158. Associated Press, Idaho Private Prison has Triple Assault Rate, ktvb.com, nov. 10, 2008, http://www.ktvb.com/news/crime/stories/ktvbn-nov1008-private_pris- on_assaults.19d675fe6.html.
159. dimitria d. PoPe, texaS youth commiSSion, coke county Juvenile JuStice center audit 7 (2007), available at http://privateci.org/private_pics/ tyc_CokeCounty_AuditReport[1].pdf.
160. Id. 161. auStin & coventry, supra note 4, at 36 (“The U.S. District Court . . . granted
preliminary approval of a $1.6 million settlement on behalf of the District inmates who claimed that they were abused, denied adequate medical care, and not properly separated from other inmates.”).
162. th e Se n t e n c i n G Pr o J e c t, Pr i S o n Pr i v a t i z a t i o n a n d t h e uS e o f incarceration 3 (2004), http://www.sentencingproject.org/Admin/Documents/ publications/inc_prisonprivatization.pdf.
163. Id. 164. auStin & coventry, supra note 4, at 46. 165. Interview with Damon Hininger, in Stephanie Chen, Larger Inmate Population is
Boon to Private Prisons, wall St. J., Nov. 18, 2008, available at http://online. wsj.com/article/SB122705334657739263.html.
166. It should be noted that many states have restorative schemes whereby inmates “pay” back their victims from work performed within the penitentiary. Certainly a private prison corporation would have an incentive to see such legislation passed. However, for the purposes of this section, I am discussing only those restorative justice schemes that exist as alternatives to prison terms.
167. bankS, supra note 87, at 118. 168. Id. at 119. 169. SutherS, supra note 86, at 46 (“Restitution should play a very important role in
sentencing in many cases and virtually none in others.”). 170. See id. at 46. 171. See id.at 46. 172. eleanor hannon Judah & michael bryant, criminal JuStice: retribution
v. reStoration 58 (2004). And see Corrections Corporation of America 2005 Annual Report, reprinted in Greene, supra note 56, at 1 (“[P]ossible growth de- pends on a number of factors we cannot control. . . . [A]ny changes with respect to
94 national lawyers guild review
drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.”).
173. Jessica Metoui, Returning to the Circle: The Reemergence of Traditional Dispute Resolution in Native American Communities, 2007 J. diSP. reSol. 517, 526 (2007).
174. Id. at 527. 175. Id.at 527. 176. See supra text accompanying note 66.
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CRIME AND PUNISHMENT IN PRIVATE PRISONS. Authors: Mulch, Matthew Source: National Lawyers Guild Review. Summer2009, Vol. 66 Issue 2, p70-94. 25p. Document Type: Article Subject Terms: *Prison-industrial complex *Prison system *Prisons -- Finance *Criminal justice administration *Military departments & divisions -- United States Privatization -- United States Prisons -- United States United States -- Politics & government -- Moral & ethical aspects Geographic Terms: United States NAICS/Industry Codes: 922190 Other Justice, Public Order, and Safety Activities 236220 Commercial and Institutional Building Construction 911220 Federal correctional services 912120 Provincial correctional services 922140 Correctional Institutions Abstract: The article offers information concerning the disturbing trend towards privatization of the prison system in the U.S. It describes the alarming social and ethical faults originating from the artificial union of punishment and profit known as the prison-industrial complex. It examines the society's understanding of punishment and criminal justice theory. It emphasizes the moral and political identity of a nation when its values are compromised when its own government violates its own laws by instituting inhumane military and intelligence programs contrary to the country's foundation on which it stands for. ISSN: 0017-5390 Accession Number: 52365899

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