Guest Opinion: Debtors’ prisons still exist in Maryland

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By Marceline White

“No person shall be imprisoned for debt,” says the Maryland Constitution, Section 38.

The Maryland Constitution – and 80 years of state case law – make clear that a person cannot be jailed for disobeying an order to pay money based on a debt. Yet, debtors’ prisons continue to exist in our state.

Legislation (SB 1050/HB 1081) to eliminate debtors prisons in Maryland has passed the Senate but is currently awaiting a vote in the House Judiciary Committee.

As the debt collection industry has grown, there has been a corresponding increase in problematic debt collection practices, including the issuance of “body attachments.” If a person is found to owe money to a creditor, they must attend a hearing to declare what income and assets they have that may be garnished to repay their debt.

Should the individual fail to appear at this hearing, the person may be found in contempt of court and the debt collectors may request that judges issue body attachments –  a “ lien on an individual’s body” – in order to compel the person to declare their assets.

Sheriffs may travel to an individual’s house and arrest them on a body attachment, or if someone is pulled over for a traffic violation or other issue, the officer may see that the person also has a body attachment. The individual is then taken to jail and may be required to post a bail or bond to leave jail.

Failing to post a bond or bail means the individual will remain imprisoned until the bail or bond is paid. The inability to pay the bond (a.k.a. poverty) is one reason an individual will be jailed for debt. Timing is another reason an individual may be jailed: if an individual is picked up on a body attachment when the court is not in session, the individual will be jailed anywhere from two hours to 72 hours until court resumes.

Regardless of reasons, the outcome remains the same. Despite prohibitions in our state constitution, we currently deprive individuals of their liberty for debt-related issues. From 2010 to 2014, the Maryland district courts issued 1,615 body attachments (arrest warrants) in civil cases in FY 2014. According to our research, at least 77 individuals were arrested on a body attachment in 2014.

Although not commonplace, arrests in debt collection cases are not anomalies nor mistakes. Rather, these incidents exemplify the problems low-income Marylanders face grappling with debt and trying to navigate the small claims courts. Ninety percent of these body attachments are requested by less than a dozen debt collection lawyers.The average underlying debt is less than $4,400. However, the addition of attorneys’ fees (78% of the time), interest (56% of the time) and court costs add, on average, one-fifth to the amount of the original debt. Not to mention the fact that 98% of defendants are unrepresented; while 98% of plaintiffs are represented.

Debtors’ prisons are problematic for a number of reasons. They create a two tier-system of justice: those who can afford to pay a bail or bond do not go to jail, while those who can’t afford to pay remain in jail. Furthermore, the current system serves no constructive purpose – the debtor is not violent, nor are they a danger to the community. The individual could, however, experience real personal harm due to a body attachment, including job loss if they are incarcerated and miss work. Job loss, of course, makes it far more difficult to repay a debt.

SB 1050/HB 1081 will eliminate jail time for debt. Instead, an individual would be picked up by an officer when court is in session, would complete a form describing their assets and income, and are then released on their own recognizance. The legislation will satisfy the needs of creditors to get their questions about assets answered, will reduce the burden on sheriff’s departments, jails, judges, and taxpayers, and, most importantly, will end debtors’ prisons in Maryland.

The legislation is currently in the House Judiciary Committee, but has not been scheduled for a vote. Poverty is increasing in Maryland and it’s time for the General Assembly to take a first step in decriminalizing poverty by passing SB 1050/HB 1081.

Marceline White is executive director of the Maryland Consumer Rights Coalition, marceline@marylandconsumers.org