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Olivia C. Jerjian, The Debtors' Prison Scheme: Yet Another Bar in the Birdcage of Mass Incarceration on Communities of Color, 41 New York University Review of Law and Social Change 235 (2017) (302 Footnotes Omitted) (Full Article)


The nature of the criminal justice system has changed. It is no longer primarily concerned with the prevention and punishment of crime, but rather with the management and control of the dispossessed.---Michelle Alexander

Alana Cain was a low-income twenty-six-year-old African American woman living in New Orleans, Louisiana. She was charged with a felony theft offense in 2012 when a ring disappeared from a law firm office she used to clean. She pled guilty to the charge. Cain was indigent, but the judge ordered her to pay $1,800 in restitution and approximately $950 in court fines and fees$600 of which were at his discretion to go to the Judicial Expense Fund. The Collections Department decided that Cain would need to pay $100 each month despite her indigent status. Cain did her best to keep up with the monthly payments, borrowing money from her equally poor family and friends while caring for her sick mother. One month, Cain failed to make her payment on time and asked if she could make a smaller payment to the Collections Department, but the Department refused any payment smaller than $50 and issued an arrest warrant for her.

On March 11, 2015, a New Orleans police officer pulled over a car due to a broken taillight. Cain was the passenger. After checking her identification, the officer told Cain he had to take her to jail because of her pending arrest warrant. In fact, Cain had just borrowed $80 from her friend to put towards paying off her *238 debt, but the jail staff told her that unless she could pay the standard $20,000 secured bond, she would have to stay in jail. Cain spent a week in jail before she could see a judge.

Once in court, Cain explained to the judge that she did not have a job and could not come up with the money. The judge made “no meaningful inquiry into her indigence and, pursuant to policy, neither the lawyers representing the District Attorney nor the Public Defender informed her of her constitutional rights or asked the judge to conduct such an inquiry.” Instead, the judge told Cain that she would have to spend ninety days in jail if she ever missed another payment again.

Cain did not have a bank account, a car, or other significant assets. She often relied on food stamps and her family for basic human necessities, such as shelter and clothes. Her criminal conviction hindered her job search, and she also suffered from several medical conditions.

Along with five other victims of similar treatment, Cain filed a class action suit in the District Court for the Eastern District of Louisiana on September 21, 2015. The complaint stated that judges and court officials were running “a scheme” in which low-income people were indefinitely jailed if they fell behind on paying their court fines, fees, and assessments--also known as legal financial obligations (“LFOs”). The complaint also described how judges imposed LFOs on low-income people without first holding a hearing to determine their ability to pay and how most of the key players in the local criminal justice system--judges, prosecutors, and public defenders--benefitted financially from this scheme.

Cain's class action lawsuit is not the first one of its kind. In fact, civil rights organizations such as Equal Justice Under Law, the ACLU in various states,*239 and the Southern Poverty Law Center (“SPLC”) have filed a succession of class action complaints during the past few years. Starting in 2010, the ACLU brought attention to debtors' prisons when it issued a report recounting the stories of affected people and describing the financial failure of the debtors' prison scheme. The first complaint, Cleveland v. City of Montgomery, was filed by SPLC on November 12, 2013 in Montgomery, Alabama. Equal Justice Under the Law followed suit with Mitchell v. City of Montgomery in March 2014. These lawsuits claimed that the City of Montgomery was illegally jailing its residents for being too poor to pay off their criminal justice debt, which often resulted from traffic tickets. Both Cleveland and Mitchell resulted in settlement agreements promising--among many other things--that anyone earning below the 125% of the Federal Poverty Level would be considered indigent and, thus, would not be jailed for being unable to pay off their debt.

The true catalyst was the Department of Justice's report of its investigation of the Ferguson Police Department in Ferguson, Missouri, released on March 4, 2015 (“Ferguson Report”). The Ferguson Report revealed that police and municipal court practices focused on generating revenue for the city, rather than public safety, and exacerbated “existing racial bias, including racial *240 stereotypes.” Shortly before the release of the Ferguson Report, Equal Justice Under Law and ArchCity Defenders filed two class action lawsuits, Fant, et al. v. City of Ferguson and Jenkins, et al. v. City of Jennings, alleging that both cities had maintained a flagrant debtors' prison scheme for years.

The media's coverage of events in Ferguson, Missouri brought attention to these debtors' prison lawsuits, unleashing an onslaught of other complaints exposing debtor prison schemes. On July 9, 2015, the ACLU of Michigan filed a complaint asking Macomb County Circuit Court to order 38th District Judge Carl Gerds III--the only judge in Eastpointe, Michigan--to refrain from implementing his “pay and stay” practice for minor infractions. On September 8, 2015, SPLC filed a class action complaint against the City of Alexander, Alabama, for arresting and jailing low-income people unable to pay their *241 criminal justice debt. Cain's lawsuit came nine days later, followed by Fuentes, et al. v. Benton County in Washington on October 6, 2015, Bell, et al. v. City of Jackson on October 9, 2015 in Mississippi, and Kennedy, et al. v. City of Biloxi on October 21, 2015 in Mississippi. Most recently, the Arkansas Civil Liberties Union and the Lawyers' Committee for Civil Rights Under Law filed a class action lawsuit describing the debtors' prison practices in the City of Sherwood, and the ArchCity Defenders filed Thomas, et al. v. City of Saint Ann, et al. and Baker, et al. v. City of Florissant in 2016.

*242 Few of the lawsuits filed explicitly mention race, but most of them are filed in jurisdictions with large communities of color. This Article argues that the debtors' prison scheme employed on a national level across the United States functions like the War on Drugs as another “branch” of the race-based mass incarceration Michelle Alexander describes. Part II lays out the debtors' prison scheme, from the causes to the consequences on individuals, and explains why the lack of definition of an individual's “ability to pay” reinforces the racial disparity of the scheme.

Part III demonstrates that the debtors' prison scheme functions as a form of racialized social control similar to the War on Drugs, using Michelle Alexander's analysis in The New Jim Crow.

Part IV questions whether the law can make a difference in dismantling the debtors' prison scheme through a Critical Race Theory lens.

* * *

The debtors' prison scheme is yet another bar in the mass incarceration birdcage that functions as a form of social control of people and communities of color--the purpose that it was meant for. Operating in parallel with the War on Drugs, debtors' prisons disproportionately affect low-income people and communities of color. Not only do debts contribute to these individuals' incarceration, but they also affect their housing, employment, access to public benefits, and civil rights, following them for the remainder of their lives. Litigation, legislation, and other forms of advocacy have incrementally reformed the debtors' prison scheme to (possibly) eliminate it. As a result, fewer poor individuals will be imprisoned for being too poor to pay their LFOs. However, the overarching white supremacist framework in which the debtors' prison scheme is embedded will reemerge in another cycle, ironically sustained by these incremental reforms and the law. The question then becomes: which to choose?

I am not suggesting that advocates stop their efforts to reform the debtors' prison scheme--their much-needed work is indeed crucial. I am, however, suggesting that they consider alternatives to working within the current white supremacist framework--alternatives that are more likely to halt the cyclical “reform/retrenchment” pattern and bring about social transformation, which is to say, the dismantlement of white supremacy and social forms of racial control and a transformation of societal attitudes towards race. These alternatives need to include non-colorblind advocacy that pushes through limits imposed by the law. Activists need to acknowledge the fundamental role that race plays in the debtors' prison scheme within their proposed reforms and written advocacy, including class action lawsuits, settlements, and legislative bills, despite the strict scrutiny standard to which the law subjects claims regarding race. Without this acknowledgment, communities of color will keep being disproportionately arrested and ushered behind bars, and the game will remain the same with or without the debtors' prison scheme.


Equal Justice Works Fellow, AARP Legal Counsel for the Elderly. Georgetown University Law Center, J.D. 2016.