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Debtor’s Prison, Really?

Posted By Cliff Tuttle | February 24, 2018

No. 1,427

Image: revolve.com

State Senator Guy Reschenthaler, according to today’s Post Gazette, is going to propose legislation to permit people who cannot afford to pay criminal fines or court costs to work them off by performing public service rather than serve jail time.

He refers to the jailing of persons who haven’t paid these amounts as “debtor’s prison.”

Of course, the term “debtor’s prison” has a historical meaning that is quite different from anything we have seen in the United States for a very long time.  This involved imprisonment for failure to pay private debt. It was a common practice in England and from there it was brought to Colonial America.  The Federal Government abolished the practice of imprisonment pursuant to a civil judgment in 1833, although it persisted in the states.

More recently, the term has been revived to characterize the jailing of individuals when they are unable to pay fines in criminal proceedings.  It has also been raised in contempt proceedings when the a parent is unable to pay or refuses to pay child support.

The issue whether an indigent person could be jailed for failure to pay a fine was settled over 30 years ago , or so it seemed.  The United States Supreme Court held in Bearden v. Georgia, 461 U.S. 660 (1983) that it violated the Equal Protection Clause of the 14th Amendment to imprison a defendant because of his financial inability to pay a fine. Unfortunately, it is not clear how to distinguish the inability to pay from the unwillingness to pay.  In Bearden, the defendant had paid two installments but thereafter lost his job.

Pennsylvania has recognized this problem and has addressed it in Pa Rule of Criminal Procedure 456.  After default in paying a fine or restitution, the defendant is summoned to court to explain the default.  Presumably, he would have the opportunity to plead poverty.

The idea of substituting public service for criminal punishment, especially for sympathetic first timers, is not new and has been utilized from time to time as a substitute for conviction. A magistrate might be persuaded, in a proper case, to postpone a hearing for a short while, during which the defendant has an opportunity to select a charity for which to volunteer to work for a specified number of hours.  The director of the charity must write a letter to the judge certifying that the required work has been fulfilled.

Perhaps the time has come for an expansion of this concept.  Jails are crowded and they cost money to run. Collecting delinquent fees and costs is expensive, too.



CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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