Aug. 13, 2022

Debtors Prisons (Listener Request)

Debtors Prisons (Listener Request)

In the early days of the republic, thousands of European settlers made the journey to the new world, often without any money with which to support themselves or the costs associated with crossing The Atlantic.

To pay for this cost, many individuals entered into indenture service contracts to work it off until their balance was paid in full. However, as credit expanded and debts soared, so too did the punishment for failure to pay.

Debtors prisons, as they became known, were a product of the English legal system and was used to scare individuals into payment - but did it work?

Tune in this week as I dive into a listener's request on Debtors Prisons.

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Lepore, Jill. “I.O.U. House We Used to Treat Debtors.” The New Yorker. April 6, 2009. (LINK)


Bankoff, H. Arthur and Alyssa Loora. “The Bridewell and New Gaol.” Archaeology Archive. Feb 12, 2007. (LINK)


Coleman, Peter J.. Debtors and Creditors in America: Insolvency, Imprisonment for Debt, and Bankruptcy, 1607-1900. United States: Beard Books, 1999.


“Establishing the Georgia Colony 1732-1750.” Library of Congress. (LINK)


“Massachusetts Body of Liberties: Synopsis of the history of of the Massachusetts Body of Liberties.” State Library of Massachusetts. (LINK)


Matthews, John and Felip Curiel. “Criminal Justice Debt Problems.” The American Bar Association. November 30, 2019. (LINK)


Monea, Nino. "A Constitutional History of Debtors' Prisons." Drexel Law Review. Volume 14. February 24, 2022. (LINK)

U. S. Laws, Statutes, Etc. A bill to establish an uniform system of bankruptcy throughout the United States 30th January, . Further consideration postponed until next Tuesday week. Published by order of the House of representatives. 1800. Pdf. (LINK)


Welcome to Civics and Coffee. My name is Alycia and I am a self-professed history nerd. Each week, I am going to chat about a topic on U.S history and give you both the highlights and occasionally break down some of the complexities in history; and share stories you may not remember learning in high school. All in the time it takes to enjoy a cup of coffee. 



In 1987, actor Michael Douglass, playing one of the most notorious villains in cinematic history, Gordon Gecko, said the often repeated quote Greed is good. While the movie itself was meant as a demonstration of the excess of the United States in the 1980’s, the idea of money and credit and debt has its origins as far back as the country itself. 


Americans have always struggled with debt. So much so that we used to physically jail people specifically for the purposes of debt repayment. While the legal practice of jailing someone over a charged debt was outlawed in the 19th century, there is a valid argument that the debtor’s prison is still very much in existence.  


I received a request from listener Doug to dive into the history of debtor’s prisons. Where did they come from? How long did they last? And how do their existence influence current jailing practices?


Grab your cup of coffee peeps, let's do this. 


I think most of us have made jokes with our group of friends whenever trying to decide who owes money after a night out, saying something along the lines of “I know where you live” to the friend who may be without a method of payment and who promises to make good on their tab at a later date. While most of us are, hopefully, making the comment in jest, the United States has a long history of punishing those who are in debt and unable to make payments. 


So where did the idea of jailing people for failing to pay their debts come from? Like most things in the early republic, the inspiration for a debtor’s jail came from the home country and was from English law. However, jailing the financially irresponsible dates back to Roman Law which allowed for individuals to be mutilated upon failure to pay back their creditors. Not to be as brutal as the Romans, the English took a different approach. Instead of mutilation, English law called for the imprisonment of those who failed to make good on their outstanding debt. The thought behind the law was to scare people into making their payments; it seemed to be effective, too, which caused the notion of threatening jail time to spread. 


European colonists arrived on the shores of Jamestown in 1619, but it wasn’t until 1641 that the colony of Massachusetts settled on a series of laws, known as the Body of Liberties. Considered the first set of legal codes created by european settlers in the new world, the document was heavily mirrored after british law and called for stiff punishment should someone be found to be in default, quote: “his person may be arrested and imprisoned where he shall be kept at his own charge,” end quote. 


You heard that right - if you were found guilty of failing to pay your debts, you would be jailed - at your own expense, thereby taking on more debt. The motivating factor behind this was that individuals who could pay and were simply failing to do so would be further incentivized to make good on their debts, lest they be saddled with having to pay for their stay in a dingy jail cell. If you couldn’t pay, the assumption is that your friends or family would come to your rescue and satisfy your debts to avoid imprisonment. The original sentences for those who were imprisoned due to debt? Until it was paid or the creditor decided you’d been punished enough. Unlike today where laws outline specific lengths of punishments for various crimes, original debtors had no sense of when they may be released from their cell. 


Of course, when the country was originally colonized, there was little infrastructure to actually imprison those who were otherwise guilty of default. As a result, most of those who carried debt with them entered into indentured servitude contracts for a set period to work off their debt. In fact, many of the European settlers who first arrived in the new world came to the country in debt - agreeing to work off the cost of their fare for a set number of years. These agreements enabled the country to develop and gain traction in the new world. As historian Jill Lepore writes quote, “the colonies were settled, the nation founded, the country built, by debtors,” end quote. 


In a sense, the beginnings of the country was very heavily reliant on debtors - or people willing to take on debt in order to travel to the new world. In her analysis of the history of debt, Lepore argues the new land was used as a sort of debt asylum, aimed at increasing interest in populating the foreign soil. Some colonies provided debt relief for a number of years for individuals who made the journey. Georgia, for example, was established, in part, to help provide relief to those struggling to make good on their debt in London. Established by James Oglethorpe in 1732, the Georgia charter was seen as a bit of a debt relief colony, only individuals owing small sums were considered. Once approved by the Crown, James quickly made sail for the new world. And though the charter was granted, parliament exerted a lot of control over the colony including how land would be parceled out and Georgia quickly lost its shine when residents of other colonies found themselves limited in their purchasing power within the area’s borders. 


The prevalence of identure contracts quickly disappeared when the colonists realized they could simply kidnap and import a free labor source - african slaves. Suddenly, an indenture contract was not all that attractive to the planter class looking to cultivate as much land as possible to maximize profits. With indenture contracts, the creditor was provided work for only a set number of years, after which point the individual in question was free to move on and cultivate their own land, usually with a land grant paid for by the creditor. With african slaves, planters were guaranteed a labor source for the life of an individual for minimal overhead costs. 


As the need for indenture contracts waned, the demands for payment increased. Each locality handled their requests differently, with some colonies only allowing the collection for debt repayment during an established growing season, therefore allowing individuals the means with which to earn the necessary funds to make good on their loans. Creditors also sought relief of their outstanding debt by seizing assets, often confiscating the means with which many earned a living. These creative solutions may have also been the result of the lack of any central location to send those who violated their repayment agreements. 


Another method to collect repayment? Shame. Debt was seen as socially and often religiously taboo with Quakers preaching the need to make good on any debt fellow friends took on. However, as the country further evolved, paper credit came to the fore and only exacerbated individuals ability to fall further into arrears. It wasn’t long before the country established jails and prisons to house these financial criminals.  


One such prison, New Gaol, was built in New York in 1759 and quickly became dedicated to housing debtors. A three story brick building, many individuals found themselves locked away in a dimly lit room with minimal comforts. These debtors' prisons were also modeled after the home country, with many jailors looking to the British prison The Clink for inspiration. So if you’ve ever wondered why prison is sometimes referred to as the clink, you can thank the original clink prison which dates back to the twelfth century and now serves as a museum. 


Describing debtor’s prisons, Lepore writes quote: “they had no rooms; they slept on the floor in the ground floor hall or were shut up in the cellar,” end quote. Unable to pay and forced to sit in jail until the debt was forgiven, many prisoners worked off their balance through penal labor. This practice exploded in the aftermath of the civil war after the passage of the thirteenth amendment which prohibited slavery, except as a punishment for a crime and is a hotly debated topic given the United States prison system in the twentyfirst century. As I mentioned before, as indigent individuals were jailed, it often fell to their friends and family to help them meet their basic needs - including the support of the dependents. As author Peter Coleman writes quote: “if the debtor had dependents, it threw the burden of caring for them upon friends, charity or the public,” end quote. 


And before you assume only the lower class faced jail time, think again. Two signers of the Declaration of Independence were jailed over failure to pay their debts. Of course, much like today, wealth provided more comforts while in jail. Those who came from a richer background often had accommodations that more resembled a small apartment than a jail cell. 


So how did so many people fall into debt? This can be tied to the increase in paper credit which became the main payment method for many in the colonies. Historically reserved for merchants, handbills or notes of credit quickly spread throughout the colonies to a wide range of individuals, many of whom spent beyond their means. This is a problem Americans have never seemed to overcome as many a recession has been exacerbated by our over extension of credit lines - including the housing bubble recession of 2008. 


With the rise of debtors also came the establishment of debt relief societies. As early as 1776, individuals gathered together in Philadelphia to form the Society for Assisting Distressed Prisoners. The group helped collect and distribute food for prisoners, many of whom had no other method of feeding themselves since, again, they were required to pay their own way while being jailed for not paying their own way. The irony, am I right?! The society lasted almost two years before they were forced to disband at the start of the American Revolution. They were later established under the name the Philadelphia Society for Alleviating the Mistries of Public Prisons whose aim was to quote, “improve the conditions of prisons, and also in earnest endeavors to reform the criminals,” end quote. 


Several pieces of legislation were passed throughout the early years of the United States in an effort to further regulate bankruptcy and those who failed to pay their debts. The first federal law to address bankruptcy came in 1800; partially as the result of the panic of 1792, the government’s new law proposed that debts could be forgiven if a majority of the creditors agreed. This approach to handling debt tended to favor the debtor and not the creditor, which was a significant departure from English law. However, despite their attempts to help regulate and streamline the management of debt, it wasn’t an overwhelmingly successful federal statute. Though it was meant for any debt holder, the law was primarily utilized by established merchants who were able to take advantage before its repeal just a few years later. 


Finally, in 1833, the federal government outlawed debtor’s prisons, and several states followed suit in the years after the law’s enactment. Additionally, bankruptcy laws were updated to decriminalize indebtedness and work towards trying to get the creditor as much of their outstanding balance as possible. These laws, ostensibly, ended the practice of jailing individuals for failure to pay their debt. However this wasn’t the end of jailing people over monetary crimes. 


There have been several stories in the news relating to the need for bail reform, with advocates pointing to the thousands of individuals who are currently imprisoned for no other reason than they are unable to pay their court fees. Though Congress put through federal legislation curtailing the imprisonment of individuals over debt back in the 19th century, the issue has come across the Supreme Court docket several times. And every time, the Supreme Court has voted in favor of, more or less, the debtor. In 1970 in Williams v Illinois, the court held that a prison term could not be extended due to failure pay court fees; and in 1983 in Bearden v Georgia the justices granted local judges the ability to differentiate between those who were able to pay and refused and those who were truly indigent and unable to pay. 


However, despite these decisions, the number of individuals who remain behind bars for debt is pretty staggering. According to the American Bar Association, nearly half a million people are held in custody for no other reason than failure to pay their court related debt, usually bail for minor offenses. How, if it's supposedly unconstitutional, are people still being held over debt? Well, it’s a bit tricky. Many times, when someone is being sued over debt and they fail to appear for court, the judge on the case issues a warrant for failure to appear and is supposedly unrelated to their debt charge. However, once they are imprisoned and bail is assigned, they are often stuck until their trial date. The other issue, some legal scholars argue, is the Supreme Court’s failure to clearly define what willful and indigent meant when they issued their 1983 Bearden decision. This lapse, they argue, provides judges with maximum flexibility in jailing individuals over debt and in some districts, court costs help offset local budgets, providing a bit of an incentive to assess and require the payment of fees. These factors, critics argue, disproportionately impacts those of poor or minority backgrounds.


So where do we go from here? There are several proposals under consideration, the most commonly known is the elimination of the cash bail system. The elimination of bail, advocates assert, would reduce the number of incarcerated individuals. By eliminating the payment of a fee before trial, individuals are more likely to retain their employment and avoid conviction. Several states have already eliminated or greatly altered their bail system to help mitigate this growing issue and finally end throwing people into de facto debtor’s prisons. 


However, until federal legislation seeks to address this issue, it will remain a nuanced and complex problem handled by individual judges in county court houses across the nation.


Thank you to Doug for suggesting I look into the history of Debtor’s prisons. As usual, your requests are always fascinating and I am constantly surprised at the interesting factoids I pick up along the way. Keep the requests coming, peeps. I am loving it. 

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Alright peeps. I’ll see you next week.


Thanks for tuning and I hope you enjoyed this episode of Civics & Coffee. If you want to hear more small snippets from american history, be sure to subscribe wherever you get your podcasts. Thanks for listening and I look forward to our next cup of coffee together.