The New American Debtors' Prisons

Abstract

State by state, Americans abolished imprisonment for debt in the first half of the nineteenth century. In forty-one states, the abolition of debtors’ prisons eventually took the form of constitutional bans. But debtors’ prisons are back, in the form of imprisonment for nonpayment of criminal fines, fees, and costs. While the new debtors’ prisons are not historically or doctrinally continuous with the old, some aspects of them offend the same pragmatic and moral principles that compelled the abolition of the old debtors’ prisons. Indeed, the same constitutional texts that abolished the old debtors’ prisons constitute checks on the new today. As the criminal law literature grapples with debtors’ prisons through more traditional doctrinal avenues this Article engages with the metaphor head-on and asks how the old bans on debtors’ prisons should be interpreted for a new era of mass incarceration.

Keywords: debtors' prisons, debtor's prisons, imprisonment for debt, criminal law, criminal justice, Bearden v. Georgia, new peonage, excessive fines