Criminalization of debt in the U.S.

Discussion in 'Law & Justice' started by kazenatsu, Feb 27, 2018.

  1. kazenatsu

    kazenatsu Well-Known Member

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    I thought debtor's prisons were a thing of the past.
    Apparently not:

    https://www.aclu.org/issues/mass-in...criminal-justice/criminalization-private-debt

    There are a lot of "due process" issues here.

    People are being arrested because they did not attend mandatory court collection hearings, even though they never received notice that there was going to be a hearing. Probably a letter was just sent out to their last known address and they were no longer living there.

    A lot of these people who owe money are lower income and live in apartments and have to move frequently. Have you ever lived at an apartment and opened the mail box? There will be mail addressed to 5 other people in your box, people who used to live there years ago. Some of this is pretty important mail too. Letters from banks with the financial details of bank accounts. Pre-approved credit cards in someone else's name that all you have to do is call a number to activate. I remember seeing a court summons letter in someone else's name once. There was nothing I could do except write "Does not live here any longer, Return to sender" on the envelope and put it back in the outgoing mail box.

    Being required to attend all these collection hearings can be a punishment unto itself. Again, many of these debtors are poor and have trouble arranging the transportation to get to the court on time. It could take 3 or 4 different bus transfers, and if one of the buses don't show up on schedule that could set you back an hour. It could end up taking the entire day to get to the court hearing and back. In some cases, needing to take a day off could even mean being fired from their minimum wage job. These collection agencies will try to drag the debtors into court hearings as often as possible, to try to make it as unpleasant as possible until the debtor pays up.

    Here's an except from the report:

    The abuse of civil contempt proceedings to extract payments from debtors violates centuries-old federal and state laws prohibiting incarceration for debt. Although courts ostensibly issue arrest warrants to compel alleged debtors to appear in court or comply with a court order to provide financial information, in practice debt collectors request arrest warrants to use them as leverage in debt collection. Creditors and debt collectors are keenly aware that they are most likely to receive payments from debtors when they are under threat of arrest or incarcerated. Courses and articles on the practice of debt collection law even advise lawyers that arrest warrants are an effective way to extract payment. One such article advised, “Body attachments are usually rather effective, as most debtors do not like to be imprisoned and suddenly find funds for bonds.”

    While in some cases debtors may cure their contempt by appearing in court and providing the requested financial information, more often debtors may secure their release from jail or have their warrant quashed only if they pay their debt, either in full or a bond amount that satisfies a portion of their debt. This direct connection substantively transforms contempt for failure to comply with a court order into contempt for failure to pay, in violation of state and federal laws prohibiting debtors’ prisons.

    As Alan White, a consumer law professor at CUNY School of Law, described it, “If, in effect, people are being incarcerated until they pay bail, and bail is being used to pay their debts, then they’re being incarcerated to pay their debts.” Contempt proceedings become purely pretextual, explained Lisa Madigan, Attorney General of Illinois; if that “gives the lawyers the ability to say [debtors] aren’t being thrown in debtors’ prison, they’re being thrown into prison for contempt of court. To me, that’s disingenuous.”

    An Idaho bankruptcy court recognized this reality, concluding that a collection company that sought, drafted, and obtained a bench warrant for a debtor’s failure to turn over tax returns had plainly done so as a tactic to extract payment. In that case the arrest warrant required the debtor to post a bail set at the exact amount of the judgment, payable only in cash and to be handed over to the debt collector. The court ruled:

    There was a time in America when debtors were jailed for not paying their debts. In reviewing the facts of this case, it appears perhaps that time has not passed… It is clear that Creditor’s efforts to get Debtor put behind bars were calculated to enforce a money judgment, pursue a “collection motive,” [and] to harass Debtor…. The Court was distraught to learn that, even today, a creditor can persuade a state court to incarcerate a debtor to compel payment of a debt…. The facts show that Creditor initiated the contempt proceedings in state court not to secure the financial information Debtor was ordered to provide, but to coerce him into paying Creditor’s judgment.
    In practice, there are several indicators when this use of contempt turns into unlawful imprisonment for debt. First, the bail attached to arrest warrants is often for the alleged amount owed to the creditor. Instead of performing an independent analysis to determine the amount of bail required to ensure compliance with court-ordered proceedings and the debtor’s ability to pay that amount, many courts simply require payment of the full judgment owed. Second, the bonds paid by debtors to get out of jail are often transferred directly to the creditor. While many courts transfer bonds to creditors as a matter of custom, some state laws explicitly require these bonds to be turned over to creditors. Third, the contempt of court finding is often dropped once the creditor receives the bond or if the debtor settles with the creditor.​

    In numerous cases it appears debtors are being held in prison in violation of the guidelines of the law:

    Julius Zimmerman was jailed for six days in 2011 in solitary confinement in Dakota County, Minnesota, on a civil warrant obtained by a debt collector. He had filed for bankruptcy and the jailing violated the mandatory stay. The debt was owed to American Family Insurance Group after he was involved in a car accident. Police officers arrested Zimmerman at his home while he was babysitting his girlfriend’s children. They completed booking at 1 a.m. on a Friday, and the earliest he could be brought to court was Monday. He says he told the police officers and jail staff that because of his bankruptcy filing, no action could be taken to collect the underlying debt. He didn’t have access to a phone for several days and was unable to contact his attorney during that time. He says he suffered fear, humiliation, and embarrassment as a result of his arrest and incarceration. Zimmerman sued the sheriff and 10 jail deputies, alleging they had violated the automatic stay triggered by the bankruptcy filing, but the court ruled it lacked jurisdiction to consider his claim.
    A few examples of those who were arrested:

    A Kansas woman with bipolar disorder who said she was arrested while in the throes of an episode and had to walk miles to get home when she was released.

    An Illinois truck driver was fired from his job for missing work while jailed for six days because he could not afford the $31,500 bond set at the amount he owed to a bank for equipment financing. An Indiana woman was fired by her employer after she was arrested at work.

    One single mother was arrested at her Pennsylvania home in the early morning hours while her son, a minor, slept. Despite her pleas, the police did not allow her to tell her son what was happening to her.

    One Indiana woman, a mother of three, was jailed for missing hearings over medical bills for her cancer treatment. She was physically unable to climb the stairs to the women’s section of the jail, so she was held in a men’s mental health unit with glass walls that exposed her to the male prisoners, even when she used the toilet. She says she was denied medicine and feminine hygiene products, and exposed to lewd and “trauma-inducing” behavior, including one man who wiped his feces on the wall of their shared cell.

    An 83-year-old man and his 78-year-old wife were jailed for failing to appear at a post-judgment hearing in Maryland, despite being out of the country at the time of the alleged notice. A private process server agency told the court that they had been given notice, but for some reason had wrongly described the elderly couple as a 41-year-old man and his 28-year-old roommate.

    full downloadable report here: https://www.aclu.org/sites/default/...und_of_flesh_debtcollectionreport.pdf#page=24
     
    Last edited: Feb 27, 2018
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  2. kazenatsu

    kazenatsu Well-Known Member

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    another good article, unfortunately I'm going to have to copy it here because the site in the link is very slow:

    As a sheriff's deputy dumped the contents of Joy Uhlmeyer's purse into a sealed bag, she begged to know why she had just been arrested while driving home to Richfield after an Easter visit with her elderly mother.

    No one had an answer. Uhlmeyer spent a sleepless night in a frigid Anoka County holding cell, her hands tucked under her armpits for warmth. Then, handcuffed in a squad car, she was taken to downtown Minneapolis for booking. Finally, after 16 hours in limbo, jail officials fingerprinted Uhlmeyer and explained her offense -- missing a court hearing over an unpaid debt. "They have no right to do this to me," said the 57-year-old patient care advocate, her voice as soft as a whisper. "Not for a stupid credit card."

    It's not a crime to owe money, and debtors' prisons were abolished in the United States in the 19th century. But people are routinely being thrown in jail for failing to pay debts. In Minnesota, which has some of the most creditor-friendly laws in the country, the use of arrest warrants against debtors has jumped 60 percent over the past four years, with 845 cases in 2009, a Star Tribune analysis of state court data has found.

    Not every warrant results in an arrest, but in Minnesota many debtors spend up to 48 hours in cells with criminals. Consumer attorneys say such arrests are increasing in many states, including Arkansas, Arizona and Washington, driven by a bad economy, high consumer debt and a growing industry that buys bad debts and employs every means available to collect.

    Whether a debtor is locked up depends largely on where the person lives, because enforcement is inconsistent from state to state, and even county to county.

    In Illinois and southwest Indiana, some judges jail debtors for missing court-ordered debt payments. In extreme cases, people stay in jail until they raise a minimum payment. In January, a judge sentenced a Kenney, Illinois, man "to indefinite incarceration" until he came up with $300 toward a lumber yard debt.

    "The law enforcement system has unwittingly become a tool of the debt collectors," said Michael Kinkley, an attorney in Spokane, Wash., who has represented arrested debtors. "The debt collectors are abusing the system and intimidating people, and law enforcement is going along with it."

    How often are debtors arrested across the country? No one can say. No national statistics are kept, and the practice is largely unnoticed outside legal circles. "My suspicion is the debt collection industry does not want the world to know these arrests are happening, because the practice would be widely condemned," said Robert Hobbs, deputy director of the National Consumer Law Center in Boston.

    Debt collectors defend the practice, saying phone calls, letters and legal actions aren't always enough to get people to pay.

    "Admittedly, it's a harsh sanction," said Steven Rosso, a partner in the Como Law Firm of St. Paul, which does collections work. "But sometimes, it's the only sanction we have."

    Taxpayers foot the bill for arresting and jailing debtors. In many cases, Minnesota judges set bail at the amount owed.

    In Minnesota, judges have issued arrest warrants for people who owe as little as $85 -- less than half the cost of housing an inmate overnight. Debtors targeted for arrest owed a median of $3,512 in 2009, up from $2,201 five years ago.

    Those jailed for debts may be the least able to pay.

    "It's just one more blow for people who are already struggling," said Beverly Yang, a Land of Lincoln Legal Assistance Foundation staff attorney who has represented three Illinois debtors arrested in the past two months. "They don't like being in court. They don't have cars. And if they had money to pay these collectors, they would."

    The collection machine

    The laws allowing for the arrest of someone for an unpaid debt are not new.

    What is new is the rise of well-funded, aggressive and centralized collection firms, in many cases run by attorneys, that buy up unpaid debt and use the courts to collect.

    Three debt buyers -- Unifund CCR Partners, Portfolio Recovery Associates Inc. and Debt Equities LLC -- accounted for 15 percent of all debt-related arrest warrants issued in Minnesota since 2005, court data show. The debt buyers also file tens of thousands of other collection actions in the state, seeking court orders to make people pay.

    The debts -- often five or six years old -- are purchased from companies like cellphone providers and credit card issuers, and cost a few cents on the dollar. Using automated dialing equipment and teams of lawyers, the debt-buyer firms try to collect the debt, plus interest and fees. A firm aims to collect at least twice what it paid for the debt to cover costs. Anything beyond that is profit.

    Portfolio Recovery Associates of Norfolk, Va., a publicly traded debt buyer with the biggest profits and market capitalization, earned $44 million last year on $281 million in revenue -- a 16 percent net margin. Encore Capital Group, another large debt buyer based in San Diego, had a margin last year of 10 percent. By comparison, Wal-Mart's profit margin was 3.5 percent.

    Todd Lansky, chief operating officer at Resurgence Financial LLC, a Northbrook, Ill.-based debt buyer, said firms like his operate within the law, which says people who ignore court orders can be arrested for contempt. By the time a warrant is issued, a debtor may have been contacted up to 12 times, he said.

    "This is a last-ditch effort to say, 'Look, just show up in court,'" he said.

    Go to court -- or jail

    At 9:30 a.m. on a recent weekday morning, about a dozen people stood in line at the Hennepin County Government Center in Minneapolis.

    Nearly all of them had received court judgments for not paying a delinquent debt. One by one, they stepped forward to fill out a two-page financial disclosure form that gives creditors the information they need to garnish money from their paychecks or bank accounts.

    This process happens several times a week in Hennepin County. Those who fail to appear can be held in contempt and an arrest warrant is issued if a collector seeks one. Arrested debtors aren't officially charged with a crime, but their cases are heard in the same courtroom as drug users.

    Greg Williams, who is unemployed and living on state benefits, said he made the trip downtown on the advice of his girlfriend who knew someone who had been arrested for missing such a hearing.

    "I was surprised that the police would waste time on my petty debts," said Williams, 45, of Minneapolis, who had a $5,773 judgment from a credit card debt. "Don't they have real criminals to catch?"

    Few debtors realize they can land in jail simply for ignoring debt-collection legal matters. Debtors also may not recognize the names of companies seeking to collect old debts. Some people are contacted by three or four firms as delinquent debts are bought and sold multiple times after the original creditor writes off the account.

    "They may think it's a mistake. They may think it's a scam. They may not realize how important it is to respond," said Mary Spector, a law professor at Southern Methodist University's Dedman School of Law in Dallas.

    A year ago, Legal Aid attorneys proposed a change in state law that would have required law enforcement officials to let debtors fill out financial disclosure forms when they are apprehended rather than book them into jail. No legislator introduced the measure.

    Joy Uhlmeyer, who was arrested on her way home from spending Easter with her mother, said she defaulted on a $6,200 Chase credit card after a costly divorce in 2006. The firm seeking payment was Resurgence Financial, the Illinois debt buyer. Uhlmeyer said she didn't recognize the name and ignored the notices.

    Uhlmeyer walked free after her nephew posted $2,500 bail. It took another $187 to retrieve her car from the city impound lot. Her 86-year-old mother later asked why she didn't call home after leaving Duluth. Not wanting to tell the truth, Uhlmeyer said her car broke down and her cell phone died.

    "The really maddening part of the whole experience was the complete lack of information," she said. "I kept thinking, 'If there was a warrant out for my arrest, then why in the world wasn't I told about it?'"

    Jailed for $250

    One afternoon last spring, Deborah Poplawski, 38, of Minneapolis was digging in her purse for coins to feed a downtown parking meter when she saw the flashing lights of a Minneapolis police squad car behind her. Poplawski, a restaurant cook, assumed she had parked illegally. Instead, she was headed to jail over a $250 credit card debt.

    Less than a month earlier, she learned by chance from an employment counselor that she had an outstanding warrant. Debt Equities, a Golden Valley debt buyer, had sued her, but she says nobody served her with court documents. Thanks to interest and fees, Poplawski was now on the hook for $1,138.

    Though she knew of the warrant and unpaid debt, "I wasn't equating the warrant with going to jail, because there wasn't criminal activity associated with it," she said. "I just thought it was a civil thing."

    Joy Uhlmeyer of Richfield checked paperwork related to an unpaid credit card debt. Nothing mentions she might be arrested. She was stopped by a sheriff’s deputy while driving back from Duluth after an Easter visit with her mother, and spent a night in jail over a debt.

    She spent nearly 25 hours at the Hennepin County jail.

    A year later, she still gets angry recounting the experience. A male inmate groped her behind in a crowded elevator, she said. Poplawski also was ordered to change into the standard jail uniform -- gray-white underwear and orange pants, shirt and socks -- in a cubicle the size of a telephone booth. She slept in a room with 12 to 16 women and a toilet with no privacy. One woman offered her drugs, she said.

    The next day, Poplawski appeared before a Hennepin County district judge. He told her to fill out the form listing her assets and bank account, and released her. Several weeks later, Debt Equities used this information to seize funds from her bank account. The firm didn't return repeated calls seeking a comment.

    "We hear every day about how there's no money for public services," Poplawski said. "But it seems like the collectors have found a way to get the police to do their work."

    Threat depends on location

    A lot depends on where a debtor lives or is arrested, as Jamie Rodriguez, 41, a bartender from Brooklyn Park, discovered two years ago.

    Deputies showed up at his house one evening while he was playing with his 5-year-old daughter, Nicole. They live in Hennepin County, where the Sheriff's Office has enough staff to seek out people with warrants for civil violations.

    If Rodriquez lived in neighboring Wright County, he could have simply handed the officers a check or cash for the amount owed. If he lived in Dakota County, it's likely no deputy would have shown up because the Sheriff's Office there says it lacks the staff to pursue civil debt cases.

    Knowing that his daughter and wife were watching from the window, Rodriguez politely asked the deputies to drive him around the block, out of sight of his family, before they handcuffed him. The deputies agreed.

    "No little girl should have to see her daddy arrested," said Rodriguez, who spent a night in jail.

    "If you talk to 15 different counties, you'll find 15 different approaches to handling civil warrants," said Sgt. Robert Shingledecker of the Dakota County Sheriff's Office. "Everything is based on manpower."

    Local police also can enforce debt-related warrants, but small towns and some suburbs often don't have enough officers.

    The Star Tribune's comparison of warrant and booking data suggests that at least 1 in 6 Minnesota debtors at risk for arrest actually lands in jail, typically for eight hours. The exact number of such arrests isn't known because the government doesn't consistently track what happens to debtor warrants.

    "There are no standards here," said Gail Hillebrand, a senior attorney with the Consumers Union in San Francisco. "A borrower who lives on one side of the river can be arrested while another one goes free. It breeds disrespect for the law."

    Haekyung Nielsen, 27, of Bloomington, said police showed up at her house on a civil warrant two weeks after she gave birth through Caesarean section. A debt buyer had sent her court papers for an old credit-card debt while she was in the hospital; Nielsen said she did not have time to respond.

    Her baby boy, Tyler, lay in the crib as she begged the officer not to take her away.

    "Thank God, the police had mercy and left me and my baby alone," said Nielsen, who later paid the debt. "But to send someone to arrest me two weeks after a massive surgery that takes most women eight weeks to recover from was just unbelievable."

    The second surprise

    Many debtors, like Robert Vee, 36, of Brooklyn Park, get a second surprise after being arrested -- their bail is exactly the amount of money owed.

    Hennepin County automatically sets bail at the judgment amount or $2,500, whichever is less. This policy was adopted four years ago in response to the high volume of debtor default cases, say court officials.

    Some judges say the practice distorts the purpose of bail, which is to make sure people show up in court.

    "It's certainly an efficient way to collect debts, but it's also highly distasteful," said Hennepin County District Judge Jack Nordby. "The amount of bail should have nothing to do with the amount of the debt."

    Judge Robert Blaeser, chief of the county court's civil division, said linking bail to debt streamlines the process because judges needn't spend time setting bail.

    "It's arbitrary," he conceded. "The bigger question is: Should you be allowed to get an order from a court for someone to be arrested because they owe money? You've got to remember there are people who have the money but just won't pay a single penny."

    If friends or family post a debtor's bail, they can expect to kiss the money goodbye, because it often ends up with creditors, who routinely ask judges for the bail payment.

    Vee, a highway construction worker, was arrested one afternoon in February while driving his teenage daughter from school to their home in Brooklyn Park. As he was being cuffed, Vee said his daughter, who has severe asthma, started hyperventilating from the stress.

    "All I kept thinking about was whether she was all right and if she was using her [asthma] inhaler," he said.

    From the Hennepin County jail, he made a collect call to his landlord, who promised to bring the bail. It was $1,875.06, the exact amount of a credit card debt.

    Later, Vee was reunited with his distraught daughter at home. "We hugged for a long time, and she was bawling her eyes out," he said.

    He still has unpaid medical and credit card bills and owes about $40,000 on an old second mortgage. The sight of a squad car in his rearview mirror is all it takes to set off a fresh wave of anxiety.

    "The question always crosses my mind: 'Are the cops going to arrest me again?'" he said. "So long as I've got unpaid bills, the threat is there."
    www.startribune.com/in-jail-for-being-in-debt/95692619/


    According to a New York Times article, the Southern Center for Human Rights in 2006 sued on behalf of a woman who was locked up in Atlanta for eight months past her original sentence because she could not pay a $705 fine.
     
    Last edited: Feb 28, 2018
  3. kazenatsu

    kazenatsu Well-Known Member

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    long documentary about credit card companies and banks sucking in consumers in a predatory manner, these people are basically being enslaved into debt



    interestingly the documentary was made before the Recession, but there were many indicators that pointed to a problem
     
    Last edited: Apr 12, 2018
  4. PopulistMadison

    PopulistMadison Active Member

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    They should not hold them on bail but rather should March them to the judge to answer questions. Merely holding them on bail is itself debtor prison. Good luck fighting it from behind bars.
     
  5. hudson1955

    hudson1955 Well-Known Member

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    The legal system is messed up. Good news, in many States, when you die your debts die with you.

    After my son died, I enjoyed telling his creditors that constantly called him after he lost his job, "In the state of Texas, when you die, your debts die with you.
     
  6. hudson1955

    hudson1955 Well-Known Member

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    Strange how when a person is arrested they can be forced to submit various tests and report to a probation officer; paying fees every month to the county or State even before being arraigned(at least in Texas). Innocent until proven guilty? Not in Texas!
     
  7. PopulistMadison

    PopulistMadison Active Member

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    Submitting tests is reasonable. Paying fees is not. As for probation, it is necessary to keep tabs on them, but should not be allowed to interfere with work. Often it does, leading to their being fired and taking a plea bargain.
     

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