on Friday 25 September 2009

by Wendy McElroy





The email reads, My husband is in debtor’s prison, and he is not alone. The court has him in custody until he pays a $15,000 cash bond. We have no money or property. Unless we get help, he could be there for the remainder of his life.



While imprisonment for debt was eliminated in this country in the 19th century, it has re-emerged under a new name: contempt of court. A defendant is deemed “in contempt” if they do not pay a court ordered debt, regardless of their ability to pay. The punishment: they are stripped of their liberty and sit in jail, at the taxpayer’s expense, until and unless money is found to purchase their release.



If my husband had raped a woman he would be entitled to a trial by an impartial jury. He does not enjoy that right as a debtor. If my husband had sold drugs to children he would be entitled to legal representation. He does not enjoy that right as a debtor. If my husband had molested a child, he would be subject to no more than a maximum sentence allowed by the law. As a debtor he can be held for the rest of his life. If my husband had robbed a bank he would be entitled to one phone call upon arrest. He did not get this opportunity and we had no communication until the 7th day of his incarceration.



The United States Constitution guarantees the right to bankruptcy. We went through this process but were effectually denied our right to the remedy of bankruptcy when his debt was deemed “non-dischargable.” Additionally, I believe his 1st, 5th, 6th, and 14th amendment rights are being violated. His freedom has been stripped. This is not the United States of America of which I was taught to be a proud citizen as a child.



I write not only on my husband’s behalf, but also for the thousands of other Americans who sit in jail for the simple “crime” of not being able to pay their debts. How sad for this country when these words, written over 250 years ago, are known to ring true in modern America :



"Since poverty is punished among us as a crime, it ought at least to be reated with the same lenity as other crimes: the offender ought not to languish at the will of him whom he has offended, but to be allowed some appeal to the justice of his country. There can be no reason why any debtor should be imprisoned, but that he may be compelled to payment; and a term should therefore be fixed, in which the creditor should exhibit his accusation of concealed property. If such property can be discovered, let it be given to the creditor; if the charge is not offered, or cannot be proved, let the prisoner be dismissed." Samuel Johnson: Idler #22 (September 16, 1758). I received the following email from a heartbroken and understandably enraged wife whose husband languishes in America's version of a debtor's prison. No one knows how many people -- almost all of them men -- are being held indefinitely on contempt of civil court charges for which they do not have the due process protections offered to those accused of a criminal offense -- no right to a trial, an attorney, an appeal...no due process. Most of these imprisonments are for non-compliance with court ordered child support or alimony. It does not matter if the man is unable to comply due to poverty -- e.g. from losing his job; he can be imprisoned anyway until he "pays up." For an analysis of the plight of these prisoners who languish in jail without ever being arrested, tried or accorded Constitutional rights, please see my article "The Return of Debtor's Prison." The email reads, My husband is in debtor’s prison, and he is not alone. The court has him in custody until he pays a $15,000 cash bond. We have no money or property. Unless we get help, he could be there for the remainder of his life.While imprisonment for debt was eliminated in this country in the 19th century, it has re-emerged under a new name: contempt of court. A defendant is deemed “in contempt” if they do not pay a court ordered debt, regardless of their ability to pay. The punishment: they are stripped of their liberty and sit in jail, at the taxpayer’s expense, until and unless money is found to purchase their release.If my husband had raped a woman he would be entitled to a trial by an impartial jury. He does not enjoy that right as a debtor. If my husband had sold drugs to children he would be entitled to legal representation. He does not enjoy that right as a debtor. If my husband had molested a child, he would be subject to no more than a maximum sentence allowed by the law. As a debtor he can be held for the rest of his life. If my husband had robbed a bank he would be entitled to one phone call upon arrest. He did not get this opportunity and we had no communication until the 7th day of his incarceration.The United States Constitution guarantees the right to bankruptcy. We went through this process but were effectually denied our right to the remedy of bankruptcy when his debt was deemed “non-dischargable.” Additionally, I believe his 1st, 5th, 6th, and 14th amendment rights are being violated. His freedom has been stripped. This is not the United States of America of which I was taught to be a proud citizen as a child.I write not only on my husband’s behalf, but also for the thousands of other Americans who sit in jail for the simple “crime” of not being able to pay their debts. How sad for this country when these words, written over 250 years ago, are known to ring true in modern America :"Since poverty is punished among us as a crime, it ought at least to be reated with the same lenity as other crimes: the offender ought not to languish at the will of him whom he has offended, but to be allowed some appeal to the justice of his country. There can be no reason why any debtor should be imprisoned, but that he may be compelled to payment; and a term should therefore be fixed, in which the creditor should exhibit his accusation of concealed property. If such property can be discovered, let it be given to the creditor; if the charge is not offered, or cannot be proved, let the prisoner be dismissed." Samuel Johnson: Idler #22 (September 16, 1758).

