Some Americans Are Being Thrown Into Jail For Unpaid Debts

Illustration by Janet Sung.
The United States abolished the institution of debtors' prisons in 1833, making it illegal under federal law to imprison people for unpaid debts. (States were left to follow suit on their own through the 20th century.)
Hauling people off to jail for falling behind on their financial obligations sounds like an old Dickensian practice, but some legal experts around the country have argued that the matter is hardly resolved. A recent report from the ACLU found that thousands of debtors, mostly in Black and Latino communities, "are arrested and jailed each year because they owe money" and millions more are threatened with incarceration. "The debts owed can be as small as a few dollars, and they can involve every kind of consumer debt, from car payments to utility bills to student loans to medical fees," the organization said.
Advertisement
As recently as December 2016, Attorney General Jeff Sessions rescinded an Obama era guidance that urged courts to prohibit jailing poor people who could not afford to pay traffic tickets or court fines.
"It's like being jailed because you're poor," Ali told The Washington Post.
Amy Hennen, a civil legal aid attorney with the Maryland Volunteer Lawyer Service, wrote an op-ed about the practice, formally known as "body attachment," in The Baltimore Sun last year. Ahead, she tells Refinery29 how this tactic has evolved over time, what recourse impacted people have, and the importance of knowing your rights even in the midst of dire financial straits.
1 of 7

When you're compelled to pay money in order to be released, that [screams] 'debtor's prison'.

How exactly does a "body attachment" work?

"What we often see when somebody has been picked up for this is that they have an interaction with police for something absolutely unrelated. They could be pulled over for speeding; I have a handful of clients who were riding their bikes in a place where they weren't supposed to — stuff that's really frustrating. But they have some sort of interaction with a police officer, and when the officer takes their license and runs a quick check, they see this outstanding body attachment and get arrested."

So, does a body attachment compel someone to appear in court or is it actual grounds for arrest?

"I would say it's sort of a mix of the two. If somebody is picked up on a body attachment, it's basically a way to physically compel that person to go to court, and also potentially order them to pay money at that point in order to be released. It doesn't always play out that way, but I can and I have seen it happen. And to me, when you're arrested on a civil debt and are compelled to pay money in order to be released, that just says 'debtors' prison'."

How long might someone be held until they're released?

"I recently did a very informal poll of a handful of commissioners that wind up seeing these cases, and my understanding is the processing part can take anywhere between two to 24 hours. You wind up potentially stuck in jail for at least that amount of time, and then you go before a commissioner who's supposed to make a determination about the outstanding body attachment on you.

"Even though you're there on a civil debt, they look at your criminal history and whether or not you failed to appear at previous hearings, and they make a determination about your danger to society or likelihood to appear at the next hearing. Many times, people are released on their own recognizance at this point — they’re not even necessarily required to pay anything. But the other options include someone being made to pay in order to be released or being held without bond.

"If either of those two scenarios winds up happening, they go before a judge the next business day and the judge makes their own determination. They might say that obviously, this person doesn't have the money to pay, so we're going to release them; or if it is decided that the person needs to stay in jail, the judge will make some further determination about that. At some point through this entire process, the person will often be released, but what is frustrating for me is how it even gets to this point."
2 of 7

If nobody says, 'Hey, wait a minute,' judgment can and often is entered automatically.

When did you start observing that this was a problem?

"It's sort of a funny thing, but I used to work for a law firm that worked on the other side — they call it 'creditors rights' — it's collection law. The firm I worked for didn't do body attachments and had a policy against them, but I would wind up in court and I could see how easy it was — the low bars that were in place to potentially get a body attachment against a person — and it never sat well with me.

"At Maryland Volunteer Lawyer Service (MVLS), we run a clinic at the district court and you see how quickly these judgments get entered, with no pushback at all in some cases.

"We have so many clients who come to us and say, 'I see the case is on the docket today, but I only found out about it because I looked it up in the online case search portal,' or because they got a [random] letter. Once a collection debt case is filed against you, there is a deluge of attorneys and debt settlement programs that reach out to you, trying to get you to file bankruptcy or do debt settlement. Many of our clients say they never actually got the [case] paperwork but found out about it through something like that.

"Creditors and creditor attorneys often say that people are lying or are just trying to avoid getting served. But the number of people who say 'I was never served with this. I've never received any of the paperwork' is really staggering."
Advertisement
3 of 7

'Sewer service' is a real thing.

Why is that? Is it an issue of housing insecurity, or that creditors aren't doing their due diligence?

"I honestly think it's a mix of things. Plenty of people are served, and there are plenty of honest process servers that are giving the paperwork to the appropriate people. But I also know sewer service is a real thing: Basically, the papers get lost and you presume that they were 'thrown into the sewer' — but the process server still certifies that they were given to the proper party.

"Something I get frustrated with is what's called 'substitute service,' which is where you can give the paperwork to somebody who is of suitable age and discretion. That can be a 13-year-old child that lives in the home since it just has to be somebody who looks like they would conceivably notify the other person in the house that something was served against them. I've seen really distressing issues where the creditor just decided to serve the paperwork on [any other person] at that address.

"To get to the body attachment stage in Maryland, there are three instances of service that have to take place: There is the initial lawsuit, and then there is an oral exam where the creditor has already gotten the judgment and can bring in financial statements and things like that. If the [defendant] doesn't show up to that, there is a show cause hearing where they're supposed to show cause for why they didn't appear at the court-ordered oral exam. If they don't show up to any of those appointments, at any three of those stages, the creditor can request a body attachment.

"I have a client for whom the original lawsuit and the oral exam service both occurred at a prior residence she didn't live at anymore. They were served on somebody who lived there and the creditor called it 'substitute service on a co-resident' — except it wasn't a co-resident; it was just a person at a place where she used to live. By the time they found the address where she was actually living at during the majority of this and got around to serving her, she had gotten arrested for an unrelated matter. She has a variety of complex issues in her life and was in jail at that point. But the fact that she was in jail was easily identifiable on publicly available court records — and yet, they served a 'co-resident' at a former address. This whole process occurred and she had never actually been notified.

"Once she got out of jail, she started putting her life back together and got connected with my organization. When she pulled her credit report, she saw this judgment; the person who was working with her brought it to my attention and said, 'Oh, there's a judgment. Is there anything we can do about it?' I pulled it up and said, 'Oh my goodness. It's not just a judgment — the creditor has actually requested a body attachment.' I went through and looked at each of the instances of service and it was really egregious, the way it occurred. To me, her story very much indicates what happens and why substitute service can be such a problem."
4 of 7

The creditor has to actually request that this happen in order for this process to occur.

What is the larger impact of stories like this?

"Body attachments are not the world's biggest issue in consumer law. A couple thousand of these get entered into the system, and there are a bit more than a hundred people who wind up getting picked up and arrested.

"But it's tied to what you mentioned before: Individuals who are not working traditional jobs where they can easily be found, or who don't have a bank account and are a little bit outside of traditional financial society, are the people who wind up getting body attachments entered against them. Some of that has to do with housing insecurity, and some of it has to do with everything else going on in their lives so that something like this could conceivably fall to the bottom of the list.

"Another thing I often hear from the other side about why body attachments are not that bad is: It's not debtors' prison or that the creditor wants this person arrested. These people are being arrested for failing to obey a court order. We do get to hold people in contempt for failing to obey a court order, but the court doesn’t just say, 'You failed to obey the court order and so we're going to order that you're arrested' — the creditor has to actually request that this happen in order for this process to occur.

"There's a phrase in Latin that is used in law called sua sponte, where the court decides to do something of its own volition. That is not what happens here, and that the court could do this but chooses not to is very telling about what is driving this."
5 of 7

Is it really worth the creditors' time? Apparently, they've done the math.

What do you think is really driving this? Why is this tactic reemerging a way for creditors to collect money owed to them?

"The people that wind up in these situations are the ones that are least able to get access to services that would help them get out of this. When you're kind of removed from the way that most of society proceeds, it's hard to figure out what you can do to take a step forward.

"More creditors used to use this tactic, but as society has grappled with what it means to have a judgment against you and the impact on your life, there have been improvements in the court process and in the way that a lot of creditors behave. Generally, because they don't want to have negative publicity against them for whatever tactics they engage in. Major banks and even debt buyers (who buy the debt of other creditors) don't use body attachments. In Maryland, a handful of smaller operations might use this, but mostly it's bail bonds and a handful of landlords.

"I think a lot of that has to do with when the creditor isn't concerned about their public image. And they also deal a lot with low-income people that have a lot less ability to amplify their own voices about the issues they're seeing; they're not necessarily going to make a bunch of noise."

Is requesting a body attachment an intimidation tactic? Because if the person is in dire straits and can't pay the money back immediately anyway, it seems futile to do anything other than work out a payment plan.

"This is something that's rather baffling to me, too, because at each of these stages, you have to pay a filing fee to the court, and then you also have to pay a process server to go out and physically serve the paperwork. If you're a creditor and you haven't been able to find this person or get them to come to court on a court order, you're potentially throwing good money after bad.

"Is it really worth the creditors' time? Apparently, they've done the math on their own side and decided that for the handful of people they're able to pick up and force a payment out of, it makes sense."
6 of 7

Before you turn yourself in, seek the help of an attorney.

How do you help people take a step forward, or what can they do themselves?

"My organization connects low-income individuals with volunteer attorneys throughout the state, and we have a special focus on consumer and housing issues. For the most part, we try to help people avoid getting judgments against them in the first place, or figure out if they can set up a payment plan if they agree that they owe money. Once a judgment is entered against you, it can be really hard to undo. You have to demonstrate a number of things and it creates a really high bar.

"For example, one of the things you often have to prove is that the person was never actually served. The client I have now wasn't updating her address with Motor Vehicles every time she moved and she doesn't have a utility bill from after she moved, so she can't necessarily say, 'Aha! I have something other than my own testimony to corroborate the fact that I was not living there.'

"The really wonderful thing is that there are a variety of resources out there. There's a court helpline that people can call, or they go into a walk-in center and at least get a better understanding of the process. There are often initial courts where a lot of these actions get filed, and they'll have information on their websites about what all of this means. Courts throughout the country have taken more initiative to make these processes more understandable and that is really important.

"The other thing about body attachment is, if you find one entered against you, you can certainly potentially turn yourself in — but before you do that, I would say to seek the help of an attorney. My client hadn't yet been picked up and the body attachment was outstanding. I was able to file a motion to get rid of the body attachment and now she doesn't have to deal with the process of being arrested."
7 of 7

You have to arm yourself with knowledge.

You seem to often highlight that this is a financial matter as well as a legal matter. Do you find that people are being intimidated, but don't realize that they have legal standing not to fight that because they're thinking, Well, I owe money, so the collector can do whatever they want to get it…

"Exactly. Getting all the way to the end of this process is relatively rare — though not rare enough as far as I'm concerned. Having some sort of issue with a creditor is not rare at all.

"A variety of issues can happen in an individual's life: perhaps they've lost their job, or have missed a handful of payments on their student loan, medical debt, or credit card. Then, all of a sudden, they start getting collection calls, and if they can't come up with a way to pay it back, the creditor's going to take legal action.

"When people are having issues like this, it is easily identifiable as a financial issue. But what is harder for individuals to identify for themselves is that there are often legal issues as well — like whether the creditor is taking the right steps when they are collecting. There are laws in every state and also some federal laws that govern the actions of creditors and people collecting on the behalf of others. But an individual who doesn't know anything about those laws is not necessarily going to think, Oh, the person who is collecting on this debt isn't supposed to call me after 9 p.m. at night. Or, they're not allowed to threaten me with jail before they have a judgment against me."

"When people only think of this as a financial issue, they don't necessarily think they need to seek advice from an attorney. So, regardless of whether somebody has access to free legal services — because when you're dealing with debt collection, you don't necessarily have a bunch of extra money to hire an attorney — you have to arm yourself with knowledge. After that point, if anything looks funny, it's a really good idea to seek out the services of an attorney.

"We're talking about something that could mean the difference of a few hundred dollars for you, or the difference of a few thousand dollars, or the difference of your liberty."

This interview has been edited and condensed for clarity.

Related Stories:

What Really Happens When You Default On Your Student Loans
What Really Happens When Your Bill Goes Into Collections
What Really Happens When You File For Bankruptcy?
Advertisement

More from Work & Money

Watch

R29 Original Series

Watch Now
Documentary
Five love stories behind diverse, multicultural marriages.
Watch Now
Lifestyle
Life experiments, 5 days at a time.
Watch Now
Fashion
The style of subculture.
Watch Now
Beauty
Viral trends, tried and tested.
Watch Now
Documentary
From vibrators to lipstick, learn how your favorite products are made.
Watch Now
Documentary
Extraordinary, one-of-a-kind individuals
Watch Now
Documentary
The latest stories to watch.
Watch Now
Lifestyle
Inside the homes of millennial women — & what they paid for them
Watch Now
Comedy
Let's talk about sex, baby.
Watch Now
Documentary
Female artisans around the world
Watch Now
Politics
Made by and for smart, opinionated women.
Watch Now
Film
We helped 12 female directors claim their power.