Debtor’s Prison: Go to Jail for Unpaid Debt

Debt collectors and creditors have a number of tools at their disposal to collect unpaid amounts from debtors.  However, those who become so indebted that they lose control of their financial situation completely rarely concern themselves with being put in jail or prison for debt.  After all, debtor’s prisons, as they were once called, were eliminated with legislation passed in 1833 in the United States. 

What few people realize is that even today a debtor can be put in jail as a result of failure to pay debts.  Although not debtor’s prison, creditors seem to have found an end run around the illegality.  The imprisonment actually results from a debtor being found in contempt of court after being summoned for what is called an “examination” and failing to appear, which causes the judge to issue a “bench warrant”, perhaps more commonly known as a “warrant for body attachment.”  This practice has been reported as frequent in certain Missouri counties, but it is also at very least possible, and even practiced, in other states such as Illinois and California.

An examination occurs when a creditor who has already obtained a judgment (which can only be granted by a court, usually after litigation or more commonly through a default judgment) asks a debtor to appear in court in order to allow the creditor to examine the debtor’s assets and finances.  The debtor is expected to show up in court with proof of their financial situation, so that the creditor can decide whether it is worthwhile to continue to try to collect the judgment from the debtor, but also to find out generally where the debtor’s assets might be held in order to take assets by attachment or otherwise with the help of the court. 

If the debtor doesn’t show up for the scheduled court date, the creditor can ask the judge to issue a warrant of body attachment, which can have varying consequences including arrest and imprisonment depending on the state and county where the debtor lives. 

The problem is, once a debtor has ignored the bills, ignored the summons to court for the lawsuit, and ignored the fact that the creditor has obtained a judgment, why would that debtor suddenly start paying attention when summoned to court to present evidence of their financial ability to pay? 

The answer is—they wouldn’t.  And the question many are asking is, does forcing a debtor to appear under threat of jail amount to the sort of imprisonment for failure to pay a debt that was decried as inhuman and ineffective during the 17^th century? 

The most notorious example of unjust jailing of debtors lately comes from Missouri, where the American Bar Association reports some shady payday advance loan companies routinely use debtor examinations as a way to request warrants for body attachment, which are then used to arrest and actually lock up a debtor who may or may not have had any idea that there was even an outstanding judgment against them. 

Missouri courts are reportedly happily locking up debtors until a family member or friend arrives with the actual cash to pay the bail amount, which is likely to be the exact amount of the debt.  Seeking a bond is not allowed.  In Illinois, according to the St. Louis Post-Dispatch, a law was passed to protect debtors from these types of measures, but even the Illinois law doesn’t prevent the jailing of debtors, it merely makes it more difficult for collectors to use the court system in this way by providing that summons for an examination be hand delivered to the debtor. 

Previously, notices of an examination could be sent by mail, meaning that a debtor who might have responded to such a notice might miss it if they moved or misplaced the notice or simply didn’t get it for some other reason.  Illinois creditors were apparently free prior to the passage of the law to send notice after notice, for examination after examination, until the debtor finally missed a court date, resulting in the warrant and subsequent jailing. 

The practice of jailing debtors for failure to appear in this way occurs in other states as well.  For example, California allows for the issuance of these types of body attachment warrants in counties like San Bernardino, Santa Clara, and many others.  Reports are that these warrants rarely actually result in an actual arrest, based on safeguards built into California law, but other reports state that this practice still occurs in counties where sheriffs are unclear of their legal responsibilities.  It is also believed that these warrants primarily result in incarceration among debtors with the least ability to actually pay their debts should they be picked up, such as the homeless and mentally ill. 

Disregarding the fact that jailing a debtor who has no money to pay seems contrary to reason, some say the practice is unfair because it primarily targets the neediest individuals and families, those without the funds or the wherewithal to even defend themselves. 

Recounting debtor’s prisons and their horrors, the fact that legal organizations such as the American Bar Association are taking notice of this practice may be of some comfort, perhaps indicating an attitude shift among those who influence the law which will hopefully reach state lawmakers that putting people in jail for owing money is unfair and unseemly.  For the time being, however, in many states, pay day loan companies and other shady lenders still have the ability and motivation to apply this type of pressure to debtors down on their luck.