Debtors' prison
Until the mid-19th century, debtors' prisons (usually similar in form to locked workhouses) were a common way to deal with unpaid debt in Western Europe.
Increasing access and lenience throughout the history of bankruptcy law have made prison terms for unaggravated indigence obsolete over most of the world.
[2] For example, in some jurisdictions within the United States, people can be held in contempt of court and jailed after willful non-payment of child support, garnishments, confiscations, fines, or back taxes.
Additionally, though properly served civil duties over private debts in nations such as the United States will merely result in a default judgment being rendered in absentia if the defendant willfully declines to appear by law, a substantial number of indigent debtors are legally incarcerated for the crime of failing to appear at civil debt proceedings as ordered by a judge.
During Europe's Middle Ages, debtors, both men and women, were locked up together in a single, large cell until their families paid their debt.
France still allows for contrainte judiciaire, ordered by a judge, for persons unwilling to pay court-ordered fines as part of a judicial sentence.
Sometimes it was used as a tool to compel payment, other times it was used to secure the arrest of an individual and ensure a trial against them in order to garnish wages, replevin or a form of trover.
It was more similar to the modern enforcement of sentences (Strafvollzug) e.g. the debtor would be able to work off their debt for a certain number of days, graduated by how much they owed.
[14] A prison term did not alleviate a person's debt, however; an inmate was typically required to repay the creditor in-full before being released.
The Scots law allowing the imprisonment of debtors was grounded in large part by an Act of Sederunt of 23 November 1613, which introduced the process of 'horning' whereby the creditor would demand the payment of the debt by a certain date.
[clarification needed] The situation regarding imprisonment (προσωποκράτηση (prosōpokrátēsē): custody) for debts to the government is still unclear, as courts continue to have this ability for criminal acts.
[23] The Negotiable Instruments Act, 1881, as amended, contains provisions for criminal penalties, including imprisonment, if someone defaults on a debt or a payment obligation.
[25] An eighteenth century debtors' prison is found within the Castellania in Valletta, Malta, now used as offices by the Ministry for Health.
The practice of fleeing UAE to avoid arrest because of debt defaults is considered a viable option to customers who are unable to meet their obligations.
James Wilson, a signatory to the Declaration of Independence, spent some time in a debtors' prison while still serving as an Associate Justice of the U.S. Supreme Court.
[34] Increasing disfavor over debtors' prisons along with the advent and early development of U.S. bankruptcy laws led states to begin restricting imprisonment for most civil debts.
[4] This modern use of the term debtors' prison arguably has its start with precedent rulings in 1970, 1971 and 1983 by the U.S. Supreme Court,[5][43] and passage of the Bankruptcy Reform Act of 1978.
[37] The study identified four causes that lead to debtors' prison type arrests for debts: In an article in The American Conservative, Michael Shindler argues that another factor responsible for debtors' prison type arrests is that "Whereas indigent defendants have a Sixth Amendment right to a court-appointed lawyer in criminal cases involving incarceration, indigent debtors in state and local courts have no one to defend them against the error and abuse that characterizes debt collection litigation."
Similarly, Shindler writes, regarding explicitly illegal debtors' prison type arrests ordered by local judges,"the reason these officials engage in this sort of excessive behavior is often due to ignorance.
"[56] In a 2019 report by the Lawyers' Committee for Civil Rights Under Law argues that debtors' prisons are likely to appear in states like Arkansas where many people live in poverty and are unable to pay fines and fees, where poor record-keeping exacerbates challenges faced by defendants, and where arrest warrants and drivers license suspensions make it even harder for people to pay off court-imposed debt.
In 2014, National Public Radio (NPR) reported that there were still cases of judges imprisoning people who have not paid court fees.
[58] In September, 2015, in the town of Bowdon, Georgia, a sitting municipal judge, Richard A. Diment, was surreptitiously recorded threatening defendants with jail time for traffic violations if they did not provide immediate payment.
[76] In 1976 Article 11 of the ICCPR – International Covenant on Civil and Political Rights – came into effect stating, "No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation."
