Eliminating the Criminal Debt Exception for Debtors' Prison

Cortney E. Lollar

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Although the exact number is unknown due to poor documentation, the data available suggests nearly a quarter of the current incarcerated population is detained due to a failure to pay their legal financial obligations. In federal courts alone, the amount of criminal legal debt owed to the U.S. government in fiscal year 2017 totaled more than $27 billion, and to third parties, more than $96 billion, not including interest. In 2004, approximately sixty-six percent of all prison inmates were assessed a fine or fee as part of their criminal sentence.4 Not surprisingly, legal financial obligations disproportionately impact poor defendants and defendants of color.

Despite general acceptance of the premise that as a nation we have banned debtors’ prisons, most states do not ban imprisonment for the debt stemming from criminal court involvement. The United States Supreme Court has sanctioned laws permitting a person’s incarceration for failing to pay a post-conviction criminal legal debt so long as there is sufficient evidence that the failure to pay was “willful.” In a series of cases culminating in Bearden v. Georgia, the Supreme Court held that incarcerating someone who cannot afford to pay post conviction criminal fines or fees—who is not “willfully” failing to pay—is a violation of the Constitution’s guarantee of due process. The “critical” due process issue, according to the Court, is a defendant’s ability to pay. Before incarcerating someone for failing to pay any type of criminal legal debt, the law requires the court to determine whether the defendant is able to pay that financial obligation. If the court finds the failure to pay is “willful,” however, incarceration for nonpayment is perfectly acceptable.

Rather than advocating to amend Bearden or more carefully monitor its implementation, this Essay argues that incarceration for the failure to pay a criminal debt should not be an exception to our prohibition of debtors’ prisons. No person should be incarcerated solely for failing to pay a criminal court-related debt. Not only is the practice morally troubling, with disparate impacts on low-wage earners and communities of color, it is ineffective and inefficient, both from a fiscal perspective and as a policy matter.

Original languageUndefined/Unknown
JournalLaw Faculty Scholarly Articles
StatePublished - Jan 1 2020
Externally publishedYes


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