One of the defining features of my work has been the loss of integrity in the justice system, not just because of separate tiers of accountability for the rich and powerful, but also because of the active collusion of the system in corrupt practices. An ACLU report on modern-day debtor’s prisons caught my eye because of its deep examination of the judiciary’s active collaboration.
Debtor’s prisons have been illegal in America since 1833. But that doesn’t matter. We know about some ways people can languish in jail for being poor—if they cannot pay bail, for example, or if they rack up fines related to imprisonment that must be paid upon release. The ACLU report scrutinizes an additional phenomenon: private debt collectors using courts and district attorneys to threaten incarceration as a means of profit.
A staggering one in three Americans have a delinquent debt in the hands of a private collection agency, according to Consumer Financial Protection Bureau data. These debts are not large—around $1,300 on average. But debt collectors often hit up small-claims courts to obtain a judgment, filing hundreds of suits per day in some cases. Over 90 percent of these cases are decided for the collection agencies, mostly because they go uncontested. After winning, companies can garnish wages or seize property. They can also ask for “judgment debtor examinations,” a process where debtors are grilled about their financial histories to determine the final payment method. If the debtor doesn’t show to the exam, companies can petition judges to issue arrest warrants. Judges can also issue arrest warrants to individuals who fail to comply with a court-ordered payment plan. The fact that the debtor never receives a notice of the lawsuit or of when to show up to court, or whether the debt is even real, is of little consequence.
The ACLU examined over 1,000 cases in 26 states where judges dutifully issued the arrest warrants for failure to appear. In four states where they could receive full data (Maryland, Massachusetts, Nebraska, and Utah), the ACLU found 8,500 arrest warrants in debt-collection cases. The warrants cover every kind of debt: medical bills, student loans, rent payments, homeowners’ association fees, utility bills, repairs, payday loans, gym fees, you name it. The amounts involved in the warrants were as low as $28.
Debtors typically don’t know about the warrant until they’re pulled over for a traffic violation or officers enter their home or workplace. Debtors can sit in jail for weeks, all for not paying a bill. If they arrange bail, that money often goes directly to the debt-collection agency.
Among dozens of stories is the case of Gordon Wheeler, a Texan whom US Marshals arrested at his home for failure to appear at a debtor’ exam in 2015. He was recovering from open-heart surgery and couldn’t physically get to the hearing. The judgment concerned a $2,500 student loan debt from 1983, which with interest and fees was now $12,000. Wheeler didn’t have the money, so he went to jail. Other debtors were arrested in front of their children; those hit with warrants included those with disabilities and a woman stricken with Alzheimer’s who died before she could be jailed. The report even found examples of people jailed for debts extinguished in bankruptcy, debts they didn’t owe, or debts they’d already paid off.
Specific debt collectors and specific judges specialize in issuing arrest warrants. A medical-debt collector in Idaho obtained 345 arrest warrants and jailed 222 debtors over a six-year period. Jared Kushner’s real-estate business obtained arrest warrants for 105 former tenants since 2013, resulting in 22 debtors’ going to jail. Hundreds of these arrest warrants can be rubber-stamped by judges in a single day.
The value of the arrest warrant lies in the threat itself, providing a powerful spur to get people to pay, regardless of the validity of the debt. The ACLU documented scores of cases where individuals were specifically warned that they would go to jail if they didn’t pay the debt, sometimes in written letters from the court. So the court system is actively participating in a kind of blackmail, dangling the prospect of an unconstitutional loss of freedom to extract cash. And of course these are traditionally the most vulnerable members of society, disproportionately black and brown, bearing the brunt of this perversion of the law. The impact doesn’t just include a couple weeks in jail but lost wages, potential lost employment, scrambles for childcare, the burden of a criminal record, and the psychological stress and humiliation of being locked up for being poor.
Sometimes local prosecutors are enlisted in this game. District attorneys have jurisdiction over bounced checks, which they are supposed to review for violations of state law. Over 200 DA offices contract with private companies specializing in bad checks like Bounceback or National Corrective Group to handle the cases. The debt collectors, using the prosecutor’s seal and signature, send “repayment demand letters,” threatening criminal charges and prison time if the bad-check writers don’t pay up. The ACLU estimates that over 1 million such letters go out every year. Some of these bounced checks are for as low as $2, which would never trigger a criminal prosecution, and the DA has usually not reviewed the cases for criminal implications. So these companies are just using an official-looking letter and an empty threat to coerce payment.
That doesn’t mean just payment for the unpaid check but a series of fees, as well as mandatory attendance in a diversion program run by the same debt collectors, which costs upward of $200, often more than the bad check itself. Per the contracts, the DA offices get a kickback on those fees, which enables the cycle. One documented case in California showed that someone who inadvertently bounced a check for $3.87 for groceries ultimately paid $444.87 in fees and restitution.
The ACLU argues that these practices violate human-rights conventions prohibiting arbitrary detention. It recommends a ban on arrest warrants in debt-collection cases, protections for debtors in post-judgment hearings, and the termination of contracts between DA offices and private debt collectors.
But what really infuriates me is the role of judges and prosecutors, without whom this entire game would fall apart. Chosen to uphold the law, they have decided to destroy it, joining with some of the sketchiest operators in the country to facilitate the use of their courts and jails for blackmail. In the case of the bad-check letters, prosecutors have effectively sold their office for a few bucks, an unconscionable breach of ethics.
Observers of horrible debt-collection tactics famously talk about Unicredit, a Pennsylvania company that decorated its office to look like a courtroom and held fake court proceedings to intimidate debtors into payment. But why go through that trouble when you can get the real courts to do you a solid? We banned debtor’s prisons because we considered it immoral to punish someone for a lack of money. But now immorality is reserved for the judges and prosecutors facilitating the reemergence of the criminalization of the poor.