A Pound of Flesh

The Criminalization of Private Debt

A Pound of Flesh

The Criminalization of Private Debt
© 2018 AMERICAN CIVIL LIBERTIES UNION

Contents
Executive Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
How the Court System Is Used to Send Debtors to Jail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Role of Civil Court Judges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Prosecutors and Debt Collectors as Business Partners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A System That Breeds Coercion and Abuse.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Key Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A Nation of Debtors on the Financial Edge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
The Debt-to-Jail Pipeline. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
State and Federal Laws That Allow the Jailing of Debtors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
When Judges Reflexively Issue Arrest Warrants for Debtors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
How Courts Use the Threat of Jail to Extract Payment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Abuse of Contempt and the Unlawful Return to Debtors’ Prisons.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
For Debtors, the Trauma of Arrest and Jail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
No Notice, No Evidence, No Attorney. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
	 Violations of Right to Counsel When Liberty Is at Stake.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Partnerships Between Prosecutors and Check Collection Companies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
	 How Prosecutors Profit From Contracts With Check Collection Companies.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Abusive Practices in a Poorly Regulated Industry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
	 Violations of Federal and State Consumer Protection Laws.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Breaches of Fundamental Human Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Acknowledgments.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Appendix I: Case Studies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Case Studies: Arrest Warrants and Jailing in Debt Collection Cases.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Medical Debts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Student Loans and Other Education Debts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Housing Debts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Household Debts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Credit Card and Other Consumer Debts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Auto Debts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Payday and Other High-Interest Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Case Studies: Abuses by Check Collection Companies in Partnerships With Prosecutors. . . . . . 56
Appendix II: Federal and State Laws Authorizing the Arrest and Jailing of Debtors. . . . . . . . . . . . . . . . . . . . . 60
Appendix III: Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Endnotes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Executive Summary

An estimated 77 million Americans—one in three
adults—have a debt that has been turned over to
a private collection agency. Thousands of these
debtors are arrested and jailed each year because
they owe money. Millions more are threatened with
jail. The debts owed can be as small as a few dollars
and can involve every kind of consumer debt, from
car payments to utility bills to student loans to
medical fees.1 These trends devastate communities
across the country as unmanageable debt and
household financial crisis become ubiquitous, and
they impact Black and Latino communities most
harshly due to longstanding racial and ethnic gaps in
poverty and wealth.
Debtors’ prisons were abolished by Congress in
1833 and are thought to be a relic of the Dickensian
past. In reality, private debt collectors—empowered
by the courts and prosecutors’ offices—are using
the criminal justice system to punish debtors and
terrorize them into paying even when a debt is in
dispute or when a debtor has no ability to pay.
The criminalization of private debt happens when
judges, at the request of collection agencies, issue
arrest warrants for people who failed to appear in
court to deal with unpaid civil debt judgments. In
many cases, the debtors were unaware they were
sued or had not received notice to show up in court.
Tens of thousands of these warrants are issued
annually, but the total number is unknown because
states and local courts do not typically track these
orders as a category of arrest warrants. In a review
of court records, the ACLU examined more than
4

American Civil Liberties Union

1 in 3

Americans has a debt
that has been turned
over to a private
collection agency.

1,000 cases in which civil court judges issued arrest
warrants for debtors, sometimes to collect amounts
as small as $28. These cases took place in 26 states—
Arizona, Arkansas, California, Colorado, Florida,
Georgia, Idaho, Illinois, Indiana, Kansas, Louisiana,
Maryland, Massachusetts, Michigan, Minnesota,
Missouri, Nebraska, Ohio, Oregon, Pennsylvania,
Rhode Island, Tennessee, Texas, Utah, Washington,
and Wisconsin—and Puerto Rico and the Northern
Mariana Islands.
Even without arrest warrants, the mere threat of
jail can be effective in extracting payment—even
if that threat is legally unfounded. In the case of
debts involving bounced checks, private collection
companies now have contracts with more than 200
district attorneys’ offices that allow them to use
the prosecutor’s seal and signature on repayment
demand letters. It’s estimated that more than 1
million consumers each year receive such letters

threatening criminal prosecution and jail time if they
do not pay up. But review of company practices has
documented that letters often falsely misrepresent
the threat of prosecution as a means of coercing
payments from unknowing consumers.

How the Court System Is Used to
Send Debtors to Jail
When Americans fail to repay financial obligations,
creditors usually hire debt collectors to go after the
debtors or sell the debts to companies that specialize
in collections. More than 6,000 debt collection firms
operate in the United States, collecting billions of
dollars each year.2
These collectors flood small-claims and other state
courts with lawsuits seeking repayment. Millions
of collection lawsuits are filed each year in state and
local courts that have effectively become collectors’
courts. The majority of cases on many state court
dockets are debt collection suits,3 and in many state
courts, debt purchasers file more suits than any other
type of plaintiff.
Debt collection lawyers can file hundreds of suits a
day, often with little evidence that the alleged debt
is actually owed.4 Once a lawsuit is filed, the process
is stacked against defendants, the overwhelming
majority of whom are not represented by an attorney.
And collectors have a big advantage in small-claims
courts, which provide very limited due process
protections to debtors.
Many courts churn through collection lawsuits with
astonishing speed and little scrutiny. Over 95 percent
of debt collection suits end in favor of the collector,
usually because alleged debtors do not mount a
defense. In many cases, defendants did not know they
had been sued. And, of course, collectors have little
incentive to give proper notice to the defendants.
Once a collection company has won a judgment, it has
multiple methods to collect the money owed. It can
seek to have a defendant’s paycheck or bank account
garnished, seize their cars or other personal property,
or record a lien against their property. Creditors can

CASE STUDY

Arrested for a student loan
debt
In September 2015, Gordon Wheeler was
arrested by seven or eight U.S. Marshals at
his Texas home for failure to appear at the
U.S. District Court for the Southern District
of Texas. Wheeler was unable to show up in
court because he had just had open-heart
surgery. “You just coming over here serving
me papers saying I got to show up and I just
told you I had open-heart surgery two or
three weeks ago…so I’m not a well man,” he
said. The original $2,500 federal student
loan he obtained to pay for trucking school
in 1983 had mushroomed into $12,000 with
interest and fees. Wheeler is retired and
subsists on Social Security and disability,
and says he cannot pay it, noting, “You can’t
squeeze blood out of a turnip.”5

also ask courts to require defendants to be in court
for post-judgment proceedings. At these proceedings,
often called “judgment debtor examinations,”
defendants are required to answer questions about
their wages, bank account balances, property, and
assets. Debt collectors use these responses to take
other steps to collect on the judgment.
If the debtor does not appear in court for the
judgment debtor exam, creditors can ask the judge
to issue a civil warrant for the debtor’s arrest. In
the cases the ACLU documented, debtors failed to
appear at hearings for various reasons, most often
because they did not receive notification of the court
date or even of the existence of the lawsuit. Some
were unable to appear because of work, child care
responsibilities, lack of transportation, physical
disability, illness, or dementia. We found two cases
in which debtors missed hearings because they were
terminally ill and died shortly after warrants were
issued for their arrest.

A Pound of Flesh: The Criminalization of Private Debt

5

The Role of Civil Court Judges
State court judges have the power to order the
debtor’s employer to garnish the debtor’s wages and
authorize a sheriff to seize the debtor’s property.
In 44 states, judges—including district court civil
judges, small-claims court judges, clerk-magistrates,
and justices of the peace—are allowed to issue arrest
warrants for failure to appear at post-judgment
proceedings or for failure to provide information
about finances. These warrants, usually called “body
attachments” or “capias warrants,”6 are issued on the
charge of contempt of court.7 In some cases, debtors
are threatened with jail for contempt of court if they
do not pay or agree to payment plans.
Once arrested, debtors may languish in jail for
days until they can arrange to pay the bail. In some
cases, people were jailed for as long as two weeks.
Judges sometimes set bail at the exact amount of the
judgment. And the bail money is often turned over to
the debt collector or creditor as payment against the
judgment.
Many of those arrested said they had no idea a
warrant had been issued for their arrest. They
learned of the warrant only when police pulled them
over for a broken taillight or traffic violation and
the warrant showed up in computer records. Some
were arrested at home in the middle of the night or at
their workplace. In some cases, people were arrested

The ACLU has
found cases in which
threatening letters
were sent for bounced
checks as low as

$2.00
6

American Civil Liberties Union

when police officers came to their home because
of an incident involving another family member
or when they were witnesses to a crime and the
police discovered the warrant after obtaining their
identifying information. In other cases, debtors with
warrants issued against them were arrested when
law enforcement conducted a sweep of all residents of
public housing who had outstanding warrants for any
reason.
These arrests impose real costs on the courts and
jails in time and resources. But the damage these
arrests do to debtors—including those whose debts
are disputed—in terms of lost wages, lost jobs, and
psychological distress can be enormous. Arrest
warrants, even if they don’t result in jailing, can
cause long-lasting harm because such warrants
may be entered into background check databases,
with serious consequences for future employment,
housing applications, education opportunities, and
access to security clearances.

Prosecutors and Debt Collectors as
Business Partners
Local prosecutors have no role in civil debt collection
lawsuits. But they have a central role when it comes
to money owed due to bounced checks. Every state
has criminal laws dealing with bad or bounced
checks, and prosecutors are required to review these
cases to determine if they are subject to prosecution.
Unfortunately, in many places, district attorneys
seeking to get these cases off their desks and divert
defendants from court have decided to hand over
enforcement to private collection companies, even
when no crime has been committed. These companies
face a conflict of interest when issuing repayment
demand letters because they profit when an unwitting
recipient pays up in response to a false threat of
prosecution.
Private debt collectors have entered into hundreds
of partnerships with local district attorneys’ offices
to get people to pay on bounced check claims, under
threat of prosecution. Some collectors with these
contracts send letters on the district attorney’s

letterhead to threaten people with criminal
prosecution, jail, and fines—even when the prosecutor
hasn’t reviewed the case to see if a criminal violation
occurred.
The companies collect not only restitution for the
unpaid check, but also nearly always tack on a variety
of fees, including fees to attend a diversion program
run by these same companies, usually a class on
financial responsibility for which the check writers
may have to pay more than $200, which may be far
more than the value of the bounced check. Some
portion of these fees, depending on the contract, is
then funneled to the district attorneys’ offices.
Few, if any, of the bounced checks that trigger
threatening collection letters qualify for criminal
charges. In the vast majority of cases, check writers
have inadvertently bounced checks without criminal
intent, or the amount of the bounced check was
too low to warrant prosecution. The ACLU found
cases in which threatening letters were sent for
bounced checks as low as $2, clearly too low to meet
the criteria for criminal prosecution. Paul Arons, a
lawyer based in Washington state who has been
fighting these check collection tactics in the courts
since 2001, told the ACLU he has documented over
10,000 checks for under $10 that triggered letters
threatening consumers with jail, including bounced
checks for as little as one penny.8
In the case of one of the largest check diversion
companies, the Consumer Financial Protection
Bureau (CFPB) found that less than 1 percent of cases
were examined by a prosecutor for possible criminal
prosecution.9 In practice, prosecutors merely review
a monthly list of bounced checks and the check
writer’s name and address without evaluating why
the bank returned the check unpaid or the check
writer’s intent.

A System That Breeds Coercion
and Abuse
With little government oversight, debt collectors,
backed by arrest warrants and wielding bounced

check demand letters, can frighten people into paying
money that may not even be owed. Few tools are as
coercive or as effective as the threat of incarceration.
For example, one 75-year-old woman subsisting on
$800 monthly Social Security checks went without
her medications in order to pay the fees she believed
were required to avoid jail time for bouncing a check.
And as one lawyer in Texas, who has sought arrests of
student loan borrowers who are in arrears, said, “It’s
easier to settle when the debtor is under arrest.”10
The people who are jailed or threatened with jail often
are the most vulnerable Americans, living paycheck
to paycheck, one emergency away from financial
catastrophe. In the more than 1,000 cases reviewed
by the ACLU, many were struggling to recover after
the loss of a job, mounting medical bills, the death of a
family member, a divorce, or an illness. They included
retirees or people with disabilities who are unable to
work. Some were subsisting solely on Social Security,
unemployment insurance, disability benefits, or
veterans’ benefits—income that is legally protected
from outstanding debt judgments.

Key Recommendations
These abusive practices raise grave due process,
equal protection, and human rights concerns, yet
they remain largely unchecked because there is
minimal government oversight and scant protection
for debtors under federal and state laws. With a few
notable exceptions, regulators rarely intervene to
stop these practices. For example, in Illinois, where
residents in a third of the counties commonly faced
incarceration in debt collection cases, reforms
spearheaded by Attorney General Lisa Madigan and
enacted by the state Legislature substantially curbed
the practice.11 But there’s much that can be done by
state attorneys general, state courts, legislatures, the
CFPB, and Congress to protect consumers against
these forms of intimidation and threats. A more
comprehensive set of recommendations is provided
on page 40.
•	 Legislatures should enact laws that prohibit
courts from issuing arrest warrants in debt
A Pound of Flesh: The Criminalization of Private Debt

7

collection proceedings. Until arrest warrants
are prohibited, at a minimum, legislators
should should require that defendants be
released on their own recognizance upon
service of the warrant and not taken into
custody or required to pay bail.
•	 State court rules committees should prohibit
judges from issuing arrest warrants for
contempt, either for failure to pay or for
failure to appear, in debt collection litigation.
Court rules committees should also amend
rules or issue court administrative directives
that provide for more robust due process
protections for consumers.
•	 District attorney offices should terminate
their contracts with private check collection
companies.
•	 State attorneys general should take action
against check collection companies abusing
their contracts with district attorney offices.
State attorneys general have the duty to
enforce consumer protection laws by bringing
civil enforcement actions pursuant to their
authority under federal and state consumer
protection statutes. By suing check collection
companies engaged in unfair and deceptive
practices that violate state and federal laws,
state attorneys general can compel an end to
these practices, provide restitution to affected
consumers, and impose civil penalties.
•	 Pursuant to its rulemaking authority under the
Dodd-Frank Wall Street Reform and Consumer
Protection Act , the CFPB should promulgate
rules that preclude debt collectors from
seeking the arrest or jailing of alleged debtors
in pursuit of payments toward civil debts. The
CFPB should also initiate further enforcement
actions against companies operating bad-check
enforcement programs for violations of the Fair
Debt Collection Practices Act (FDCPA).
•	 The Conference of Chief Justices and the
Conference of State Court Administrators

8

American Civil Liberties Union

CASE STUDY

Elderly couple jailed for a
housing debt
In Maryland, Isaac, 83, and his wife, Doris,
78, were jailed because they did not
appear at an order to show cause hearing
in a district court over $2,342.76 owed to
their homeowners’ association plus $450
in attorney’s fees. They had never been
served with notice of the show cause
hearing, which was scheduled for failure
to appear at a post-judgment proceeding
for which they also had never been served.
The elderly couple was out of the country
at the times the process server claimed
to have performed service. The server
described Isaac as being 41 years old and
Doris as his 28-year-old roommate. When
the District Court of Maryland in Prince
George’s County issued a body attachment
authorizing their arrest in January 2014, the
judge set a cash-only bond in the amount
of $2,900, which meant that Doris and
Isaac could not get out of jail until they paid
the same amount as the default judgment
against them. Doris spent the night alone
in a cold jail cell. While in detention,
Isaac began vomiting blood and became
non-responsive. He was transported to a
hospital, where he was kept overnight and
received emergency medical treatment.

should issue a judicial bench card creating
guidelines for judges to prevent the abuse of
their contempt of court authority in civil debt
collection proceedings.

A Nation of Debtors on the
Financial Edge

Predatory debt collection companies are profiting
from a nation of debtors, many of whom are trapped
in debt and living on the financial edge. The scale of
this national financial crisis is staggering. The Urban
Institute estimates that 77 million Americans—about
35 percent of all adults—have a debt that has been
turned over to a third party for collection.12 One in
five Americans has unpaid medical bills that have
gone into collection.13
The Consumer Financial Protection Bureau (CFPB)
found in January 2017 that about one-third of
consumers were contacted by a debt collector about
a debt in the previous 12 months.14 Debt collection
companies make more than one billion contacts with
consumers to recover debts each year.15 With record
numbers of people in debt, the multi-billion-dollar
collection industry has turned huge profits. In 2016,
the industry raked in estimated annual revenues of
$11.4 billion.16 Large debt buyers’ profit margins far
surpass those of corporations like Walmart.17

1 in 5

Americans has unpaid
medical bills that have
gone into collection.

But the debts that trap Americans are often not large.
Americans with a debt in collections owe just over
$1,300 per person on average.18 The median amount
of non-medical debt in collections is $366, while the
median medical debt is $207.19
Many Americans spiral into indebtedness because
they are living in a state of financial peril and are
pushed over the edge by a traumatic event like the
loss of a job, serious illness, or divorce, exacerbated
by snowballing interest rates and fees. When
Congress wrote the Fair Debt Collection Practices
Act in 1977, it recognized that most overdue debts are
not intentional:
One of the most frequent fallacies
concerning debt collection legislation is the
contention that the primary beneficiaries
are ‘‘deadbeats.’’ In fact, however, there
is universal agreement among scholars,
law enforcement officials, and even debt
collectors that the number of persons
who willfully refuse to pay just debts
is miniscule…. [T]he vast majority of
consumers who obtain credit fully intend to
repay their debts. When default occurs, it
is nearly always due to an unforeseen event
such as unemployment, overextension,
serious illness, or marital difficulties or
divorce.20
In fact, huge numbers of working- and middleclass Americans have little or no savings to cover
emergency medical bills, car repairs, or other
unanticipated expenses.21 Research by the Pew
Charitable Trusts found that one in three American
A Pound of Flesh: The Criminalization of Private Debt

9

56%

of Americans say
their incomes are
falling behind the
cost of living.

families had no savings at all, and that 41 percent
of households did not have $2,000 to cover an
emergency expense. The lack of savings and financial
assets to tide a family over in crisis is an even greater
problem among younger people and racial and ethnic
minorities, as described in more detail below.
Broad economic forces have also pushed more
households to the brink of financial disaster. With
the cost of living outpacing real income growth over
the past dozen years for most American households,
families are bridging the gap with credit cards and
other loans.22 A Pew survey found that 56 percent
of Americans say their incomes are falling behind
the cost of living.23 Consumers now depend on credit
cards and other loans to pay for basic expenses like
medical bills, rent, child care, and transportation.
Trapped in this pernicious cycle, millions have found
themselves mired in debt they cannot afford to pay
back.
For some, these unmanageable debts have led to
arrest and jail time after debt collectors take them
to court. The ACLU found arrest warrants being
issued in nearly every kind of consumer debt or loan—
medical bills; federal and private student loans; rent
payments and unpaid homeowners’ association fees;
mortgage foreclosure deficiencies; unpaid heating
repair bills, unpaid utilities bills, and balances
owed on furniture purchases made on credit; auto
loans, car repair bills, auto insurance subrogation
claims, and fuel bills; high-interest payday loans
and car title loans24; small-business commercial
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American Civil Liberties Union

loans and equipment financing; credit card debts;
gym fees; revolving debt accounts at retail stores;
daycare center fees; online education courses from
for-profit colleges; and school textbook fees. Among
the medical debts that resulted in arrests were fees
owed to radiology offices, surgery centers, women’s
health care providers, dentists, urgent medical care
providers, pediatric clinics, rehabilitation services,
pharmacies, addiction service providers, and
ambulance services.
Debt in America is ubiquitous. But race and ethnicity
profoundly influence who is vulnerable to predatory
private debt collection. In 2014, the Pew Research
Center found that Black and Latino people were, on
average, at least twice as likely to be poor than were
white people in the United States.25 A 2013 Pew
Research Center study of federal data found that the
median wealth of white households was 13 times the
median wealth of Black households, with a difference
in net worth of the typical white and Black families at
$131,000—the highest racial wealth gap documented
since 1989.26 The study also found that white
households have an average wealth 10 times greater
than that of Latino households.27 These significant
racial and ethnic gaps in poverty and wealth result in
increased financial insecurity for Black and Latino
families.28
Because Black and Latino people are more likely to
be poor, they are more frequently targeted for risky
financial products, such as payday loans.29 The racial
and ethnic wealth gap, in turn, makes it more likely
that Black and Latino individuals and families lack
the savings and financial assets necessary to tide
them over in a crisis with financial consequences,
such as job loss or death of a wage-earning family
member.
As a result, Black and Latino people are more
frequently among those with unmanageable debt
burdens.30 For example, a 2015 Pew Research Center
study found that around one-quarter of AfricanAmerican families would have less than $5 in savings
if they liquidated all their financial assets, while the
bottom 25 percent of white households would have
$3,000.31

Because of these trends, the impact of predatory
practices tends to fall most heavily on minority
communities. Some empirical studies suggest that
there are marked racial disparities in debt collection
lawsuits. A study by ProPublica found that the rate
of court judgments from debt collection lawsuits
was twice as high in mostly Black communities than
it was in mostly white ones, even controlling for
income.32 A study by the New Economy Project found
that the 10 New York state zip codes with the highest
concentrations of default judgments in debt collection
lawsuits are predominantly non-white neighborhoods,
and six of these zip codes bearing the brunt of debt
collection lawsuits are largely middle-income Black
communities.33
Because the courts adjudicating debt collection
cases generally do not record data on the race of
alleged debtors for whom these courts are issuing
arrest warrants, the ACLU was unable to obtain
data documenting racial disparities in the issuance
of arrest warrants. However, based on our research
we do know that arrests for civil debt-related
warrants often occur when debtors are pulled over
or stopped by police for traffic offenses, vehicle
equipment violations such as broken taillights, or
other minor infractions, or during searches of public
housing residents to identify people with open
warrants. To the extent that these policing practices
disproportionately target Black Americans, the racial
disparities in debt collection judgment rates may be
amplified.

A Pound of Flesh: The Criminalization of Private Debt

11

The Debt-to-Jail Pipeline

State courts are deeply enmeshed in the debt
collection process. At the request of a collection
company, a court can enter a judgment against a
debtor, authorize a sheriff to seize a debtor’s property,
and order an employer to garnish the debtor’s wages.
In 44 states, a court can even issue warrants for the
arrest of debtors who fail to appear at post-judgment
court proceedings or fail to provide information
about their finances. In other words, in most of the
country, an unpaid car loan or a utility bill that’s in
arrears can result in incarceration.
In states that permit arrests in debt matters,
courts can issue warrants after creditors or debt
collectors have sued for money owed and won a
judgment against an alleged debtor.34 These suits
nearly always result in default judgments against
the debtors because they rarely defend themselves
in court, often because they never received proper
notice of the lawsuit. The victorious creditors can
ask judges to require the debtors to appear in court
for post-judgment proceedings (sometimes called
judgment debtor examinations) in which debtors are
required to answer questions about their wages, bank
account balances, property, and assets.35 Collection
companies use this information to garnish debtors’
paychecks, put liens on their property, and take other
steps to collect the debt.
When a debtor does not appear for these proceedings,
the judge can issue an arrest warrant—known
variously as “body attachments,” “capias warrants,”
or bench warrants—for contempt of court.36 Judges
can also issue such arrest warrants if the debtor
fails to answer written interrogatories about their
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American Civil Liberties Union

In Massachusetts,
four small-claims
courts issued

1,325

warrants for the arrest
of alleged debtors in
2016.
finances and assets or turn over documents such as
tax returns.
There are tens of thousands of these warrants issued
annually, but the total number is unknown, because
states and local courts do not typically track these
orders as a category of arrest warrants. State and
county court data obtained by the ACLU through
Freedom of Information Act and open records
requests reveals that in 2016, judges signed off on
more than 8,500 arrest warrants in debt collection
proceedings in the three states and four counties
where we were able to obtain data. In 2016, Maryland
district court judges issued 852 warrants in debt
collection cases.37 In Nebraska, judges issued
548 warrants in debt collection suits in 2016.38 In
Massachusetts, four small-claims courts issued

1,325 warrants for the arrest of alleged debtors in
2016; the ACLU was unable to obtain data for smallclaims courts statewide or for district and circuit
courts.39 Utah district court and justice court judges
issued 5,831 civil bench warrants statewide in fiscal
year 2016, a 6 percent increase over the previous
year, according to state courts system data.40As of
January 2018, there were 1,339 active warrants in
debt collection cases in Vanderburgh County, Indiana,
a figure that includes unpaid child support cases
because the Vanderburgh County Sheriff’s Office
tracks these warrants as a single category.
The U.S. Marshals Service could not adequately
respond to a Freedom of Information Act request
filed by the ACLU seeking information about arrests
made in student loan collection cases nationwide
because its regional offices do not enter all such
warrants into their centralized database. The
regional office in Houston reported that its office
processed 25 arrest warrants for people who missed
court appearances in connection with unpaid federal
student loan debts during 2015.41
In a review of court records, the ACLU examined
more than 1,000 cases in which civil court judges
issued arrest warrants for debtors, sometimes to
collect amounts as small as $28. These cases took
place in 26 states—Arizona, Arkansas, California,
Colorado, Florida, Georgia, Idaho, Illinois, Indiana,
Kansas, Louisiana, Maryland, Massachusetts,
Michigan, Minnesota, Missouri, Nebraska, Ohio,
Oregon, Pennsylvania, Rhode Island, Tennessee,
Texas, Utah, Washington, and Wisconsin—and
Puerto Rico and the Northern Mariana Islands.
In the cases we examined, debtors often failed
to appear because they did not receive notice
of the court date or even the existence of the
lawsuit. Others said that they were unable to
pay the judgment and feared that appearing in
court or responding to inquiries would result in
garnishment of their wages or seizure of their
assets, like the car they needed to get to work.
Most of these debtors could not afford to hire a lawyer
and had no idea how to defend themselves in court
proceedings—nor were they advised by the court

how to do so. Some were unable to appear in court
because of work, child care responsibilities, lack
of transportation, physical disability, illness, or
dementia. We documented two cases in which the
debtors missed court hearings because they were
terminally ill; both died shortly after warrants were
issued for their arrest. One Texas man arrested in
connection with an unpaid student loan missed his
scheduled hearing because he was recovering from
open-heart surgery. In other cases, women missed
hearings because they were pregnant and under
doctor-ordered bed rest or home recovering from
childbirth.42
Some collectors summon debtors to court repeatedly
and request arrest warrants when defendants miss
a hearing.43 For example, when an unemployed
Kansas man fell behind on payments for a debt owed
to Nebraska Furniture Mart, the collector repeatedly
requested that the judge order him to appear in court,
with one request made for a hearing only 10 days after
the prior in-court examination.44 When he missed
a hearing after making two court appearances, the
judge cited him for contempt of court and ordered
that a bench warrant be issued for his arrest.45 In
some cases, debtors who missed multiple hearings
were arrested more than once for a single debt in
collection.
In some states, debtors can also be jailed when they
fall behind on payments promised under courtordered payment plans. If they fail to keep up with the
payment plan, they may be arrested for contempt of
court.
Only a fraction of the warrants issued actually result
in jailing because local law enforcement often wait
to execute the warrants until the individuals show
up in a database search triggered by a traffic stop
or other contact with law enforcement, and in some
cases judges order the person released on their own
recognizance or taken directly to court upon service
of the warrant. But some debtors languish in jail for
weeks until they can arrange to pay the bail set in
their cases.
In most places, when warrants are executed, debtors
are jailed until they pay cash bail or post a bond.
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13

Often the bail money is turned over to the debt
collector or creditor as payment against the judgment.
Depending on the jurisdiction, the amount debtors
have to pay to get out of jail may be set at the exact
amount of the judgment, which includes not only the
amount of the original debt but also attorney fees and
costs, interest, late fees, and other expenses that are
arbitrarily determined by the collection company and
can far exceed the amount owed.
Bail may be even higher than the judgment amount
when courts tack on post-judgment interest,
supplemental attorney’s fees, and other costs at the
debt collectors’ request. For instance, the ACLU
found cases of medical debt collections in Idaho
in which judges set the bond at more than double
the amount of the default judgment, which itself
was already padded with fees. Judges sometimes
require that bail be paid in cash, which means that
incarcerated debtors cannot use a bail bondsperson.
In other cases, bail may be set at an amount the debtor
still cannot afford.

44

Laws in
states and the federal
rules of civil and
bankruptcy procedure
expressly authorize
debtors to be arrested
and incarcerated for
contempt of court.

State and Federal Laws That Allow the Jailing
of Debtors
For nearly two centuries, debtors’ prisons—
institutions where debtors were incarcerated until
they paid their debt—have been prohibited in the
United States. In 1833, the federal government
abolished imprisonment for debt under federal
law.46 The states followed by issuing similar bans on
debtors’ prisons, and in 1948, Congress prohibited
incarceration for debt anywhere that it has been
outlawed by state law.47 In United States v. Rylander,
the Supreme Court held that courts do not have
“any reason to proceed with a civil contempt action”
when a defendant is unable to comply with an order
requiring payment.48 State courts have also ruled
that holding defendants for failure to pay money
judgments violates their state constitutional or
statutory prohibitions against debtors’ prisons.49
Since every state, either by constitutional provision
or statute,50 currently prohibits imprisonment for
failure to pay civil debts, debtors’ prisons should not
exist in the United States.51

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American Civil Liberties Union

Yet courts can get around these prohibitions by
using their authority to hold debtors in contempt
for failure to comply with post-judgment orders like
in-court examinations, discovery orders, or, in some
cases, court-ordered installment plans.52 In other
words, debtors are subject to jailing for disobeying
court orders concerning proceedings designed to
satisfy the money judgment, but not for the original
money judgment itself.53 For debtors, this technical
distinction matters little.
While contempt power is “inherent in all courts,”54
laws in 44 states, the Federal Rules of Civil Procedure,
and the Federal Rules of Bankruptcy Procedure
expressly authorize debtors to be arrested and
incarcerated for contempt of court in such instances:
Alaska, Arizona, Arkansas, California, Colorado,

Connecticut, Delaware, Florida, Georgia, Hawaii,
Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Maine, Maryland, Massachusetts,
Michigan, Minnesota, Mississippi, Missouri,
Montana, Nebraska, Nevada, New Hampshire, New
Jersey, New York, North Carolina, Ohio, Oklahoma,
Oregon, Pennsylvania, Rhode Island, South
Carolina, Tennessee, Texas, Utah, Vermont, Virginia,
Washington, and Wisconsin, as well as the District
of Columbia and the commonwealths of the Northern
Mariana Islands and Puerto Rico. (The federal and
state laws authorizing the jailing of debtors are
described in Appendix II.)
When Judges Reflexively Issue Arrest
Warrants for Debtors
The practice of issuing arrest warrants varies greatly.
Some judges or courts routinely issue warrants,
some issue warrants occasionally, and others never
do. There can be differences among judges in the
same county or city. For example, most arrests in
federal student loan cases documented by the ACLU
in Texas were on warrants issued by a single judge:
Judge Lynn Hughes of the U.S. District Court for the
Southern District of Texas.55
Who gets arrested also depends on the debt collector.
The ACLU’s research found that the process of
issuing arrest warrants is often driven by the
creditors’ attorneys, debt collectors, or original
creditors. Courts will generally order the arrest of
a debtor only on the request of the creditor or debt
collector, some of whom make it a practice of seeking
warrants, while others eschew it. For instance, in
most of the Texas federal student loan cases, the
arrest warrants were sought and obtained by M.
H. “Butch” Cersonsky, a debt collection attorney,
and his colleagues at the Houston-based law firm
Cersonsky, Rosen & García, P.C., with which the
federal Department of Education has long contracted
to recover unpaid loans.56 In a Collections 101 course
taught by Cersonsky for the State Bar of Texas in
Houston, he even said, “It’s easier to settle when
the debtor is under arrest.”57 Cersonsky and his
colleagues found a willing partner in Judge Hughes.

Some judges reflexively issue warrants at the creditor
attorney’s request. A justice of the peace in Maricopa
County, Arizona, Judge Lenore Driggs, told the
ACLU that she and other judges in the jurisdiction
issue civil bench warrants whenever they are
requested.58 By way of example, she noted that a debt
collector representing debt buyer Roger’s Acceptance
Corporation of Arizona typically requests warrants
for the arrest of debtors, which was confirmed by the
ACLU’s review of dozens of warrants issued by the
Maricopa County Justice Courts.
In Idaho, Medical Recovery Services, LLC, a
collection company that specializes in collecting
medical debts, is responsible for securing the arrests
of more debtors statewide than any other collector,
having obtained 345 arrest warrants from 2010
to 2016 that resulted in the jailing of 222 debtors,
based on the ACLU’s review of court records. In
Washington, a single debt collection attorney, James
Patrick Hurley, has obtained warrants for the
arrest of more than 200 debtors since 2010 and was
observed bragging in court about getting the most
warrants like it was a competition.
In Maryland, corporate entities affiliated with
Kushner Companies, the family real estate business
run by senior White House advisor Jared Kushner
until January 2017, have obtained warrants for the
arrest of 105 former tenants since 2013 that resulted
in the jailing of 22 debtors for failing to appear in
court over unpaid rent, more than any other landlord
in the state over that time, according to an analysis of
Maryland District Court data by the Baltimore Sun.59
And in Massachusetts, debt collection law firms
representing debt buyers—third-party debt collection
companies that buy debts for pennies on the dollar—
are particularly active in securing arrest warrants
as compared with other creditors. For instance, a
lawsuit brought by consumers in Massachusetts
against Midland Funding, a debt buyer, alleged that
the collection company aggressively enforced debt
judgments—usually default judgments—through
arrest warrants.60 The suit was eventually settled.
In interviews with the ACLU, consumer rights
lawyers and court-watchers in states around the
country described how they have witnessed judges
A Pound of Flesh: The Criminalization of Private Debt

15

rubber-stamp scores of warrants in a single day. For
example, Dalié Jiménez, a consumer law professor
at the University of Connecticut School of Law,
observed a judge in the Boston Municipal Court
stamp over 100 warrants for the arrest of debtors in
a single day, so many that the stamp broke.61 This is
not an anomaly: In four other Massachusetts smallclaims courts where data was available (Cambridge,
Pittsfield, Plymouth, and Quincy), arrest warrants
were issued in more than a quarter (28.7 percent) of
the consumer debt cases filed in 2016.62
While waiting for a case to be called in Yakima
County, Washington, Scott Kinkley, a lawyer with
the Northwest Justice Project, observed the judge
sign roughly 30 arrest warrants in about 10 minutes,
all to defendants with Latino names, setting bail at
the alleged amount owed.63 He said the judge and the
collection attorney had an efficient rhythm:
Judge: “Next case is #____________.
Is __________________ present? Okay,
hearing no answer I am going to sign the
proposed bench warrant. How much is
this one?”
Collection attorney: “$_____, your Honor.”
Judge: “Order has been signed.”

there was a default judgment for the plaintiff
or that a capias was being issued without
anyone having to say it.”64
(It is common practice in small-claims court sessions
with a large volume of debt collection cases for one
or two “cover attorneys” to answer for all the large
debt collection plaintiffs who have cases scheduled
on any given day. These attorneys substitute for the
plaintiff’s attorney of record on a case when they do
not appear, while debtors have no such service to rely
upon.)
In some cases, warrants are issued by court staff, not
judges. Katherine Rybak, a lawyer with Indiana Legal
Services, told the ACLU that in Vanderburgh County
Small Claims Court, when a debtor does not show up
at an order to show cause hearing, a warrant is issued
automatically by court staff even before the judge
takes the bench.65 Until Rybak stopped the practice
in 2014 with a letter to the judge, in Dubois County
Small Claims Court it was standard practice to issue
warrants immediately—without an order from a
judge—upon receiving a phone call from the creditor
when a debtor missed a payment or was late paying
under an agreement made at previous hearing.
How Courts Use the Threat of Jail to Extract
Payment

A court-watcher who observed small-claims
proceedings in Dorchester, Massachusetts, similarly
reported that the clerk-magistrate would speed
through a list of cases, maintaining a “steady rhythm”
of ordering either a default judgment or a warrant
after the attorney responded for the plaintiff:

The ACLU’s research found that some small-claims
court judges, justices of the peace, clerk-magistrates,
district court civil judges, and court clerks exceed
their authority by threatening debtors with jail for
contempt of court if they do not pay in full or agree to
payment plans.

In the first couple cases of each section, the
Clerk-Magistrate would say “default” or
“capias” after the cover attorney responded
for the plaintiff followed by a brief silence
indicating that the defendant was absent. But
after uttering each of those words the first
couple times, the Clerk-Magistrate did not
even bother to say that much and just moved
on to the next case. It seemed as though it
was assumed, since the defendant did not
respond, that everyone in the room knew

In Michigan, an officer of the Ionia County District
Court demanded payment in full from a man against
whom an arrest warrant had been issued in 2017 for
missing a debtor’s examination in a lawsuit filed by
his landlord for unpaid rent and damages. The judge
who issued the warrant had set the bond amount at
$1,708.52, to be paid only in cash. When he told the
court clerk he could not pay the bond in full but could
pay $100 a month, she refused to accept an installment
plan and informed him and his legal aid attorney that
he would be arrested if he did not pay in full.66 He says

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American Civil Liberties Union

he is unable to pay the bond; the arrest warrant against
him will remain active until he does so. He has not yet
been arrested because the local court officer agreed not
to execute the warrant while his legal aid lawyer tries to
resolve the case. He is supporting his family on a small
income, working for the apartment complex where
he lives and having money taken from each paycheck
to cover back rent. He says he lives in fear of being
arrested.
In another case, a judge in Perry County, Indiana,
threatened Herman Button with jail if he did not
agree to pay $25 a month toward a $1,865.93
judgment his former landlord obtained for an eightyear-old rent debt. Button was unemployed and living
on disability benefits; he appeared in court without
a lawyer. The judge threatened him with jail even
though he explained that he couldn’t possibly make
the payments:
The Court: So we’re here today for you to
explain what you’re going to do to pay this off.
Mr. Button: I can’t.
The Court: Okay, but you’re going to.
Mr. Button: I can’t do it.
The Court: Okay, Mr. Button.
Mr. Button: Yes, ma’am.
The Court: For some reason we’re not
communicating. Alright, you’re not hearing
me for some reason. I am telling you that,
yes, you will. You’re going to tell me how
you’re going to go about doing that. And I’m
not going to accept I cannot, and if the next
words out of your mouth are I cannot, Mr.
Button, then you’ll sit with Mr. Glenn at the
Sheriff’s Department until you find a way
that, yes, you can. So what kind of payments
can you make to pay this down?
Mr. Button: Five dollars ($5.00) a month.
The Court: Five dollars ($5.00) a month
is—I’m going to be an old woman before this is
ever paid off.

Mr. Button: That’s what I can afford, ma’am.
I live on Social Security disability. I’ve got to
pay my rent and my lights and my gas.
The Court: I’m going to order you pay twentyfive dollars ($25.00) a month until this is
paid off. I’m going to show that we are to
come back March 12, at 1 o’clock, at which
time Miss James is going to tell me that she
has already received fifty dollars ($50.00)
towards this. Okay.67
Button fought back and filed an appeal arguing that
he should not be held in contempt and his assets
should not be garnished to pay the judgment. The
appeals court ruled the trial judge had improperly
threatened Button with imprisonment and had failed
to consider Button’s ability to pay, as there was no
evidence that Button could afford $25 a month.68
The ACLU also documented cases in which sheriffs
and constables tasked with serving warrants
called, wrote, or went to the residences of debtors to
personally threaten to jail them if they did not pay,
agree to payment plans, or voluntarily surrender
themselves at the courthouse. For instance, in
Nebraska, a deputy sheriff drove to a woman’s home
and demanded payment toward a $3,856.61 debt
she originally owed to Wells Fargo. Believing she
had to pay up, she borrowed $30 from her mom, who
happened to be visiting at the time. The sheriff’s
deputy charged $22.82 to collect the $30, so only
$7.18 went toward the judgment. Two weeks later, he
returned to her home and demanded another $30
payment, and he told her that he would return to
collect payment every two weeks until the debt was
satisfied.
In Massachusetts, a form letter sent by two
constables in Haverhill and Lowell to consumers
against whom warrants had been issued for failure to
appear in debt collection cases warned, “It appears
you have chosen to be arrested, put in handcuffs
in front of your family, friends and/or coworkers
and brought before the court.” The letter continued,
“Ignore this notice, and you will be arrested as soon
as you are found; this could be tomorrow morning
coming out of your home, at work, or anywhere you
A Pound of Flesh: The Criminalization of Private Debt

17

are found. You then run the risk of not going home
at the end of the day, but instead going to jail for
Contempt of Court.”69
Abuse of Contempt and the Unlawful Return
to Debtors’ Prisons
The abuse of civil contempt proceedings to extract
payments from debtors violates centuries-old federal
and state laws prohibiting incarceration for debt.70
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.71 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.”72
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.”73 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.”74

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American Civil Liberties Union

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… [I]t 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.75
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.76 Third, the
contempt of court finding is often dropped once the
creditor receives the bond or if the debtor settles with
the creditor.77

For Debtors, the Trauma of Arrest and Jail

Lack of money to pay a small bill, a pile-up of warning
letters, damaged credit scores, personal bankruptcy—
all create enormous stress for people struggling to
make ends meet. But nothing compares with being
arrested and taken to jail for being unable to pay a
debt.
The collection process carries high public costs
in terms of the time and resources required of
law enforcement and court staff. But the effects
on a debtor subject to an arrest warrant because
of a failure to appear at a court hearing can be
emotionally and financially devastating. Many have
never had contact with law enforcement before their
arrest. For those jailed, the psychological distress,
lost wages, and other costs can have severe, longlasting impacts on them and their families.
In interviews with the ACLU, people described the
shock and humiliation of being arrested, booked,
fingerprinted, photographed for a mug shot, stripsearched, and placed in a holding cell. In some cases,
the debtors were arrested at gunpoint. In one case,
a man was Tasered and bitten by a police dog in
the course of his arrest.78 Some people could get no
explanation from either the arresting officers or the
jail staff as to why they had been incarcerated.
In many instances, parents were arrested in front
of their children. 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.79 We found the case of a woman
in Ohio, who was arrested while she was home with

her three-week-old baby.80 In another case, a man in
Washington was arrested for missing a hearing about
an unpaid auto loan deficiency—the debt remaining
after his pickup truck had been repossessed—while
home with his six-year-old disabled son. Police
handcuffed him and immediately placed him in the
squad car, leaving his son alone in the house. For over
an hour, he sat in the police car outside his house,
watching in horror as his son sobbed and ran, scared
and confused, in and out of their home. When his wife
arrived home, sheriff’s deputies arrested her too and
threatened to call Child Protective Services if she
could not find someone to watch over their son.
We found cases of arrest warrants issued against
elderly debtors, including a woman who was 90
years old. In one instance, a Maryland court issued a

For those jailed, the

psychological
distress and
lost wages
can have severe,
long-lasting impacts
on them and their
families.
A Pound of Flesh: The Criminalization of Private Debt

19

warrant for the arrest of a bedridden woman with
advanced Alzheimer’s disease who was unable to
appear in court for an oral debtor’s examination;
she died before she was arrested on the warrant. In
another case, a Massachusetts woman died of ovarian
cancer the day after a warrant was issued for her
arrest for failure to appear. We found cases of people
with disabilities jailed, including 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.
For some, an arrest had catastrophic consequences.
A Utah man committed suicide while jailed for failing
to appear in court over an unpaid ambulance bill; he
killed himself shortly after he was asked whether he
had the money to post bail.81 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.82 An Indiana woman was fired by her
employer after she was arrested at work.
Some suffered medical emergencies while
incarcerated. For example, an 83-year-old Maryland
man jailed over a debt owed to his homeowners’
association began vomiting blood and became nonresponsive while in detention, requiring emergency
medical treatment. A North Carolina man required
four days of treatment in the intensive care unit
after falling ill while jailed.
Humiliation and trauma in jail are not uncommon.
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.83
In many cases that we documented, debtors said they
suffered psychological stress and health effects after
their jailing. Many were deeply embarrassed when
their employers or their children’s teachers learned
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American Civil Liberties Union

CASE STUDY

Jailed for an insurance debt
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.84 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.85

of their arrest. Some reported increased anxiety,
difficulty sleeping, stomach problems, panic attacks,
recurring nightmares, an inability to travel more
than short distances, an inability to remain home by
oneself, and exacerbation of medical conditions like
Crohn’s disease.
Even the issuance of an arrest warrant by itself—
without arrest or jailing—can have significant and
negative effects. In one case, a man in Indiana
with 13 years of experience as a police officer was
passed over for a law enforcement job when the
prospective employer discovered there was an open
arrest warrant for an unpaid school textbook fee.
Non-citizens have reported anxiety and fear about
potential immigration actions because an arrest
warrant had been issued.

No Notice, No Evidence, No Attorney

The arrest and jailing of debtors is all the more
troubling because the underlying debt collection
proceedings are deeply unfair. Courts are often
complicit in debt collection abuses by operating as
mills that exist only to process default judgments,
garnishments, and liens, and to seize the property of
drowning debtors.86
The Fifth and Fourteenth Amendments of the
Constitution protect individuals from the deprivation
of liberty or property by the government without
due process. Although people facing jail for civil
contempt are not afforded the same due process rights
guaranteed to criminal defendants, their procedural
due process rights are infringed upon when there is
inadequate notice, automatic default judgments, or
deficient evidence.87

a suit in as little as four seconds, and one lawyer can file
hundreds of lawsuits a day, according to a deposition
given by a debt collection attorney in New Jersey who
worked primarily for debt buyers.89 According to the
Federal Trade Commission (FTC), the majority of cases
on many state court dockets on any given day are often
debt collection cases.90 In many states, companies that
bought debts from original creditors file more civil
lawsuits than any other type of plaintiff.91

When judges automatically award default judgments
without scrutinizing the merits of debt collectors’
claims, these judgments may be for the wrong
amount, for debts that are not subject to collection, or
against the wrong defendant.92 The FTC found that
“the information received by debt collectors is often
inadequate and results in attempts to collect from the
wrong consumer or to collect the wrong amount.”93
Millions of debt collection lawsuits are filed each year
Collectors sometimes seek to collect debts that have
in local courts that have effectively become collectors’
already been settled or paid in full. In other cases, the
courts. These suits flood small-claims courts, turning
statute of limitations has expired or the debts were
them into taxpayer-funded tools of the debt collection
discharged when the debtor filed for bankruptcy.
industry.88 Lawyers working for the industry can review Others attempt to collect from the wrong person or
victims of identity theft.94

90%

of debt cases conclude
in a default judgment
against the defendant.

Once a lawsuit is filed, the process is stacked against
the defendant, whether the amount is owed or not.
Debt proceedings are plagued by substantial due
process deficiencies, including failure to serve the
defendant with adequate and legal notice of the suit,
lack of evidence of the underlying debt, and falsified
or improper affidavits such as robo-signed affidavits.95
Beyond that, debt collectors benefit from expedited
judicial process in small-claims courts, which provide
limited due process protections to debtors.
A Pound of Flesh: The Criminalization of Private Debt

21

Courts overburdened with cases churn through
these collection lawsuits with astonishing speed and
minimal scrutiny. The vast majority of them—an
estimated 90 percent96—conclude in a default judgment
against the defendants, in which the debt collector
automatically wins because the defendant did not
contest the case. Most did not appear in court to defend
themselves or respond to the litigation at all.97
People sued for debts often do not receive notice of
the legal action against them or of subsequent court
orders to appear at court proceedings.98 Consumer
rights lawyers around the country have reported that
notices are sent to outdated addresses or places where
the debtor never lived. This is a particular problem
for low-income defendants, who may move frequently
because of job loss, eviction, changes in household size,
homelessness, and illness. Collection companies have
very little incentive to maintain accurate records and
provide proper notice because doing so would mean
giving the debtor a chance to challenge the action.
And because courts rely on plaintiffs (i.e., creditors
and debt collectors) for service of process, judges are
left unable to adequately evaluate whether defective
service is a significant problem in their jurisdiction.99
The most vulnerable debtors are often targets of
“sewer service”—when a debt collector or process
server falsely claims to have served the notice of the
complaint or summons for an upcoming proceeding.100
In one example documented by the ACLU, an 83-yearold man and his 78-year-old wife were jailed for failing
to appear at a post-judgment hearing in Maryland.
Even though they were out of the country at the time
of the alleged notice, the process server reported that
they had been successfully notified; the server wrongly
described the elderly couple as a 41-year-old man and
his 28-year-old roommate.
The Supreme Court requires that notice must be
“reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the
action and afford them an opportunity to present
their objections.”101 If plaintiffs know that service
will be unsuccessful, then notice is insufficient
under the law.102 When plaintiffs are aware that their
first attempt at notice did not reach the party, they
are obligated to take additional reasonable steps
22

American Civil Liberties Union

Debtors are
represented by
lawyers in fewer than

2%

of collection cases.
to provide notice.103 Creditors and debt collectors
frequently fail to meet these standards, violating the
debtors’ due process rights.
Other debtors fail to show up in court because
they cannot get time off from work or secure child
care. Some are confused by notices, even having
received several in the mail. Many are unaware of
the consequences of missing the court date. In cases
brought by companies that have purchased the debt
from the original creditor, the plaintiff’s name on the
summons will be unfamiliar to the debtor, creating
more confusion. According to consumer rights
advocates, some debt collectors repeatedly request
trial continuances, postponing the case whenever the
debtor shows up in court and then moving for default
judgment the one time the debtor fails to appear.
Even when aware of the suit, debtors almost never
have lawyers and don’t know how to defend themselves
in a legal proceeding. There is no constitutional right
to an attorney in collection actions and civil contempt
actions, and most debtors cannot afford to hire one. As
a result, debtors are represented by lawyers in fewer
than 2 percent of collection cases.104
Companies that buy debt for pennies on the dollar
can win default judgments even though they lack any
evidence because the alleged debtors aren’t equipped
to mount a competent defense.105 A study of lawsuits
brought by debt buyers in Maryland found that more
than 95 percent of these cases end in favor of the
collector, yet in 90 percent of cases the collector lacked
the requisite proof.106 An Urban Justice Center study in

New York City in 2007 found that in 99 percent of cases
in which default judgments were entered, the evidence
supporting those claims was inadmissible and did not
meet the state’s legal standards.107
Even when parties fail to appear, judges are expected
to consider, at a minimum, whether the creditors’
claims are lawful and appear to have merit.108 But
because many judges don’t perform this evaluation,
debt collectors often prevail even when they lack
evidence to support their claims, or when creditors
have marked the evidence as unreliable.109 Courts also
often fail to verify whether debt collectors actually own
the debt at issue or are legally entitled to sue.110 When
judges automatically rule in favor of creditors and debt
collectors despite deficient evidence, alleged debtors’
due process rights are violated.
The default judgments are routinely padded with
interest charges and attorneys’ fees, so the amounts
end up being far more than the original debt. Once
a debt collector gets a court judgment, it gains the
power to garnish wages, seize property, clean out
bank accounts, or put a lien on a home. Four million
American workers had wages seized to pay off
consumer debts in 2013,111 and a study by the National
Consumer Law Center found that no state provides
adequate legal protections to prevent garnishment and
property seizures from driving families into poverty.112
Judgments can remain valid for a decade or longer,
and in some states creditors are allowed to continue
to charge a high interest rate on the judgment amount
until it is paid.
Many cases are settled out of court. Debt collectors
will often negotiate agreements in the courtroom
hallways, without any oversight or supervision
by a judge or court clerk. Some courts even have
“judgeless courtrooms”—specially designated rooms
in the courthouse that creditors are allowed to use
for settlement negotiations. In practice, courthouse
negotiations give debt collectors the upper hand
in pressuring defendants to give up their right to a
hearing or to sign payment agreements for debts that
they are not legally obligated to pay or cannot pay.113
In some cases, these due process deficiencies result in
wrongful arrests. A Maryland woman was arrested on

a warrant issued for failure to appear at a hearing that
she had in fact attended. The collector, CACH, LLC,
did not appear at the hearing, but nine months later
it nonetheless requested that the woman be arrested
for missing the hearing. The court issued the warrant
and she was arrested a week later, causing her “severe
mental anguish.”114 An investigation by the Harford
County District Court clerk’s office later determined
that the warrant had been improperly issued.115
In Oregon, an alleged debtor’s father was wrongfully
arrested by a local sheriff and his deputy on a warrant
obtained by Quick Collect, Inc., a collection agency
in Portland with an estimated $1.7 million in annual
revenue.116 Even though the debt was owed by his
son, the father was transported to jail, booked, and
incarcerated for seven hours. In another case, a woman
in Louisiana was jailed for two nights for failure to
appear in court over a high-interest payday loan she
had already paid in full.117
The ACLU also documented numerous cases of arrest
and jailing of debtors in violation of the automatic
stay on collection actions triggered when they filed
for bankruptcy. For instance, a man in Minnesota
who had filed for bankruptcy was jailed for six days
in 23-hour-a-day solitary confinement on a warrant
obtained by a debt collector. He says he told the police
officers and jail staff that because of his bankruptcy
filing no action could be taken to collect the debt, which
he owed to American Family Insurance Group after he
was involved in a car accident. Because he was denied
access to a phone for several days of his incarceration,
he was not able to contact his attorney.
Violations of Right to Counsel When Liberty Is
at Stake
Alleged debtors are not guaranteed the right to
a lawyer even when they face the possibility of
incarceration in cases concerning private debt. The
nearly ubiquitous lack of counsel in state and local
court debt collection proceedings means there is
no check against the well-documented error and
abuse that pervades debt collection litigation. Tens
of thousands of alleged debtors are under threat of
incarceration each year for failure to appear or comply
with post-judgment debt collection proceedings.
A Pound of Flesh: The Criminalization of Private Debt

23

CASE STUDY

Jailed for unpaid rent
Kristy Sprayberry was
jailed in Georgia for a
six-year-old debt her
landlord claimed she
owed after evicting her
from her trailer home.
In 2009, Sprayberry
signed a lease for
$490 a month and
fully paid first and last
months’ rent. Three
weeks later, she was jailed for an unrelated
probation violation. During the less than two
months she spent incarcerated, her landlord
evicted her and threw out all her belongings.
The landlord also sued her and obtained a
default judgment of about $3,000, for unpaid
rent and cleaning fees for throwing out her
furniture. After her release from jail Kristy
was unemployed and at times was homeless.
She had no idea her former landlord had even
sued her to collect a debt.
Five years later, Whiteside Enterprises, LLC,
a debt collection company, began attempts
to collect the default judgment. Whiteside
Enterprises is known in Douglas County,
Georgia, for buying up default judgments from
old eviction cases and using post-judgment
legal procedures to threaten people into
paying. It filed a series of interrogatories –
forms inquiring about Kristy’s finances and
assets – but was unable to serve them on her
because she had no stable address. She was

Having counsel would help indigent debtors navigate
the law, assert their rights to debtors’ exemptions
and other protections, and seek remedies to abusive
actions by debt collectors, including improper and
false claims of service and requests for warrants to
coerce payments toward debts. Counsel can help
courts avoid erroneous determinations and assist
indigent debtors in achieving better outcomes,
including vacating improperly reached default
judgments and accessing existing legal protections for
income for basic needs.
24

American Civil Liberties Union

trying to rebuild her life and married, but in
March 2015 her new husband died suddenly
of a seizure. One month later, the collector
requested contempt proceedings for her
failure to answer the interrogatories, and the
Douglas County Magistrate Court issued a
warrant for her arrest in June.
In August 2015, Kristy was gathered with
her children and extended family attending
to her mother, who was terminally ill with
lunch cancer. A family argument got heated
and a relative called the police. The two
police officers responding to the call quickly
left without taking action, but 10 minutes
later, they returned and arrested Kristy
after discovering the open arrest warrant.
The officers handcuffed her in front of her
children, including her five-year-old daughter.
Kristy says the timing made her arrest and
incarceration particularly traumatic. “I just
knew my mom was going to die while I was
in jail,” she said. “It was the time when my
children needed me the most.”
Kristy was first jailed at the Cobb County Jail
and then transported to Douglas County Jail
the next day, where she was booked and had
to fill out the financial statement forms before
she was released that evening. Two days later,
her mom died.
A year and a half later, in March 2017, the debt
collector threatened to have her arrested again.
This time, a lawyer who met Kristy through his
church helped her avoid incarceration.

In criminal proceedings, indigent defendants have a
Sixth Amendment right to court-appointed lawyers
if they face actual or suspended incarceration and
cannot afford to pay for a lawyer.118 Indigent debtors
should similarly be afforded the right to appointed
counsel when their liberty is at stake—even in civil debt
collection or civil post-judgment proceedings. Sound
public policy and the basic constitutional principle of
fair treatment weigh in favor of appointing counsel to
assist indigent debtors in these circumstances.

While the Supreme Court has not specifically ruled
on the right to counsel for consumer debtors in civil
contempt proceedings, it has ruled that due process
favors a right to counsel in civil proceedings in
which an individual’s liberty is at stake. In Lassiter
v. Department of Social Services, the Supreme Court
recognized a presumption that indigent litigants have
a due process right to appointed counsel in cases
when they may be deprived of physical liberty.119 In
Turner v. Rogers, the Supreme Court carved out an
exception in civil contempt cases involving unpaid
child support when both parents are not represented
by a lawyer, even when it resulted in the incarceration
of the non-custodial parent.120 The Supreme Court
recognized, however, that due process did not
require the appointment of counsel for the indigent
non-custodial parent in this context in part because
the custodial parent was herself not represented;
appointment of counsel for one parent would therefore
create an asymmetry of power between the parents.121
The Supreme Court explicitly distinguished that
type of civil contempt proceeding from “debtcollection” proceedings in which “[t]he government
is likely to have counsel or some other competent
representative.”122
The right to an attorney in civil proceedings, when it
applies, derives from the due process clauses in the
Fifth and Fourteenth Amendments. The Supreme
Court uses a three-factor test to decide whether
parties have a due process right to counsel in civil
proceedings: (1) the nature of the private interest
that will be affected, (2) the risk of an erroneous
deprivation of that interest without the additional
or substitute procedural safeguards, and (3) the
nature and magnitude of any countervailing interest
in not providing additional or substitute procedural
requirements.123
An analysis using this three-part test weighs strongly
in favor of a right of indigent debtors to appointed
counsel in civil contempt proceedings when the
debtor’s liberty is at stake. First, the individual’s
interest of preserving liberty weighs in favor of the
right to counsel.124 Second, the comparative risks of
a wrongful deprivation of liberty with and without
counsel weigh in favor of a right to counsel in debt

collection proceedings. Due process deficiencies, the
frequency of default judgments, and information
asymmetry, among other factors, all increase the
risk that an unrepresented indigent debtor will be
unlawfully incarcerated.
Third, affording counsel to indigent debtors would not
implicate any of the countervailing interests that the
Supreme Court noted in the child support context.125
The court explicitly distinguished such child support
cases brought by an unrepresented custodial parent
from debt collection proceedings.126 In debt collection
proceedings, debtors with lawyers are less likely to be
coerced into giving up exempt assets or taking other
measures not required by law. Providing lawyers in
these proceedings could reduce the government’s
costs, like jailing and other enforcement actions, and
help correct a system currently filled with error and
abuse.
Finally, it is important to note that even civil debt
collection cases can involve court exercise of criminal
contempt authority to incarcerate debtors as
punishment for noncompliance with court orders to
provide information or otherwise comply with orders
to enforce money judgments. It is well established
that the Sixth Amendment requires the appointment
of counsel in criminal contempt proceedings other
than summary proceedings for misconduct in open
court.127 Criminal contempt “is punitive,” and it seeks
“to vindicate the authority of the court.” In contrast,
civil contempt “seeks only to coerc[e] the defendant to
do what a court had previously ordered him to do.”128
When a debtor is unable to comply with a court order
concerning civil debt collection—such as an order to
provide responses to interrogatories concerning assets
and income without having received actual notice of
the order—any subsequent order to incarcerate the
person for a fixed term would constitute criminal
rather than civil contempt, and the Sixth Amendment
would require the appointment of counsel in such
circumstances. In at least one federal circuit, sentences
that contain elements of both criminal and civil
contempt are treated as criminal contempt for purpose
of appeal.129 Appellate courts have recognized that a
contempt sentence containing a purge condition can
nevertheless constitute criminal contempt.130
A Pound of Flesh: The Criminalization of Private Debt

25

Partnerships Between Prosecutors and Check
Collection Companies

Some coercive debt collection practices are explicitly
sanctioned by local prosecutors. Around the
country, private debt collectors contract with county
district attorney offices to threaten people with
criminal prosecution for bounced checks. Under
these partnerships, private companies seeking
to enforce collection of bad checks send letters on
district attorney letterhead to people who have
written bounced checks—effectively masquerading
as county district attorneys—to threaten them with
prosecution, jail, and fines if they do not pay up. This
routinely occurs despite evidence that prosecutors
fail to review cases sent to these private companies to
ensure that any threats of prosecution are supported
by probable cause to believe the individual actually
committed a crime, as required by law.

“Successful completion of the program
requires that you comply with all of the Bad
Check Restitution Program requirements
including full restitution, all fees and
attendance of the Financial Accountability
class.”

More than 200 district attorneys’ offices nationwide
allow private collection companies to use the seal and
signature of local prosecutors for these repayment
demand letters. Letters sent to consumers have
contained the following language, posing as official
communications when the cases have not been
reviewed by district attorneys:

Subsequent letters contained the heading,
“CASE FORWARDED FOR POTENTIAL
CRIMINAL PROSECUTION.”

“OFFICIAL NOTICE—IMMEDIATE
ATTENTION REQUIRED”
“You have been accused of violating” a state
criminal statute.
A “conviction under this statute is
punishable by…imprisonment and/or a fine.”
“The Bad Check Restitution Program…is
a pre-charge program designed to allow
26

American Civil Liberties Union

people accused of having violated the
above referenced statute to avoid the
possibility of further action against the
accused by the District Attorney’s office.”

“Our records indicate that you have failed
to respond or fully comply with the [DA’s]
Official Notice.”
“Your case has been reviewed and
forwarded to the [DA] for consideration
of prosecution…due to your failure to
complete the requirements of the Bad
Check Restitution Program.”

In interviews with the ACLU and in sworn
depositions, consumers said they were bewildered
and scared by these collection letters. Most said they
were afraid they were going to jail and understood
that they had been accused of a crime that would
result in incarceration if they did not pay the amounts
demanded. They said they believed the letters had
been sent by a prosecutor and had no idea they had
been sent by a private company. And when they
dialed the phone numbers listed on the letters, they
mistakenly believed they were talking with an
employee of a government agency.

In all cases, the check collection companies demand
not only payment for the unpaid check, but also
tack on a variety of fees, including fees to attend a
diversion program run by these same companies.
These programs usually involve taking a class on
budgeting and financial responsibility for which
check writers must pay anywhere from $145 to
$235. Some portion of these fees is then funneled
to the district attorneys’ offices, depending on the
contract, but the bulk of the fees go to the private
companies. One company, CorrectiveSolutions, for
example, charges California consumers the following
fees, even charging consumers for overpaying:
Administrative fee: 	

$50

Diversion seminar fee:	$191 with automatic 3%
annual increase
Restitution fee: 	$15 maximum, based on
merchant’s bank charge
Credit/debit card fee:	

$10

Payment plan late fee:	

$10

Class rescheduling fee:	

$25

Overpayment refund fee:	 $5
Collecting these fees is the primary or even sole
revenue stream for these companies.131 This profit
structure creates an incentive for them to maximize
the number of individuals enrolled in the diversion
seminars—even when there is no probable cause
to believe that a particular individual actually
committed a bad check offense or that the district
attorney would prosecute the alleged conduct. The
potential for abuse is clear: Falsely and aggressively
threatening consumers with criminal prosecution
can increase the fees and profits these companies
collect.
For example, one prominent company offering badcheck diversion programs circulated guidance to its
“recovery agents” outlining the tactics to use in phone
calls to targets. It advised them to “[e]xplain you
are trying to hold their case back from prosecution
review, and the only way you can do that is with
money.”132 The same document instructed agents

CASE STUDY

Threatened with jail for a
$41 check to Goodwill
A mother of three in Washington wrote a
$41.19 check to Goodwill to buy clothing
for her children, but the check bounced
because of a banking mix-up. She received
a letter that looked like it had been sent by
the Kitsap County Prosecuting Attorney
and bore the prosecutor’s seal, telling her
that she had been accused of a crime and
she had to pay the amount of the check
plus $185 in fees within 10 days “to avoid
the possibility of criminal charges being
filed.”135 The letter was actually sent by
Bounceback, Inc., and there is no evidence
that the prosecutor even reviewed any
evidence related to the bounced check
or that the prosecutor’s office would
prosecute her if she did not pay the fees.
She ultimately paid the $41 plus nearly
$220 in fees.

to “[m]ake sure you add all failure to comply fees. . . .
This is not discretionary. This money belongs to the
company, and will DRASTICALLY change your
numbers.”133
Few, if any, of the bounced checks that trigger these
collection letters qualify for criminal prosecution.
One study found that there is only a 0.4 or 1.2
percent chance a consumer would be prosecuted for
the bounced checks subject to collection by these
companies. In the vast majority of cases, check
writers have inadvertently bounced checks without
criminal intent, or the amount of the bounced check
is too low to warrant prosecution.
The ACLU documented cases in which threatening
letters were sent for bounced checks as low
as $2, clearly too low to meet the criteria for
criminal prosecution. One internal email from the
prosecutor’s office in Kitsap, Washington, showed
that checks for $5 and $8 were to be referred for
collection even though the office never prosecutes
for a bounced check less than $50.134 Paul Arons, a
Washington-based lawyer who has been fighting
A Pound of Flesh: The Criminalization of Private Debt

27

these check collection tactics in the courts since 2001,
told the ACLU he has documented over 10,000 checks
for under $10 that triggered letters threatening
consumers with jail, including bounced checks for as
little as one penny.136
District attorneys are required by law to review
the case files and determine if they are eligible for
prosecution, but the threatening letters are usually
sent before district or state attorneys have even
examined the files. In the case of one of the largest
check diversion companies, the Consumer Financial
Protection Bureau (CFPB) found that less than 1
percent of cases were reviewed by a prosecutor for
possible criminal prosecution.137 In some cases,
prosecutors are allowed 24 hours to review checks
before the collection company proceeds. And even
then, they may only look at a monthly list of bounced
checks with the check writer’s name and address,
without evaluating the reason the bank returned the
check unpaid or the check writer’s intent.
Consumer rights lawyers estimate that more than 1
million consumers are targeted nationwide each year
through district attorney-debt collector partnerships
for collection on bounced checks written to local
merchants and national retailers including Best Buy,
Costco, CVS Pharmacy, Goodwill Industries, Kroger,
Lowe’s, Safeway, Staples, Target, Walgreens, and
Walmart.138 These retailers generally do not contract
directly with the check collection companies. Instead,
major retailers usually contract with check guarantee
companies such as Certegy and Telecheck, which
pay the merchant the full face value of the bounced
check and then attempt to collect the check from the
consumer.
The ACLU documented many cases in which
consumers had unintentionally written a check
against insufficient funds and were subsequently
threatened with criminal prosecution and jail (see
details in Appendix I). These include the following
cases:
•	 A wheelchair-bound retiree living in a senior
living facility on a modest fixed income was
threatened with jail for bouncing a check for
$108 at Walmart for household goods.
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American Civil Liberties Union

More than

1consumers
million
are
targeted nationwide
each year through
the district attorneydebt collector
partnerships.

•	 A check writer in Los Angeles who
inadvertently bounced a check for $3.87 to
Ralphs grocery store ultimately paid $444.87
to a private check diversion company after she
was threatened with criminal prosecution and
jail time. Among other fees, she was charged
$225 in missed class fees for a class for which
she was also charged $150.
•	 A mother of three was threatened with criminal
prosecution for bouncing a $41 check when she
bought clothing for her children at Goodwill.
•	 A single mother was threatened with criminal
prosecution and up to one year in jail for
inadvertently bouncing a check for $48 when
she purchased groceries at Walmart.
•	 A 75-year-old woman living on $800 monthly
Social Security checks had to go without her
medications to pay the fees she believed were
required to avoid jail time for bouncing a check.
These bounced check programs began in the late
1980s139 and have been subject to numerous lawsuits
since 2000.140 The Federal Trade Commission took
enforcement action against one company, Check
Investors, Inc., which bought more than 2.2 million
checks for pennies on the dollar and collected more
than $10.2 million from 2000 to 2003.141 After Check

Investors, Inc., was shuttered by court order in 2005
and lawsuits were filed against other companies
in this industry in several states, prosecutors and
lobbyists for these companies turned to Congress.
Congress created a loophole that took effect in
2006 for collection agencies working on behalf of
law enforcement, exempting them from the Fair
Debt Collection Practices Act, which regulates
the actions of third-party debt collectors. Other
companies continue to operate despite regulators’
and consumers’ attempts to challenge these practices.
As check-writing has dropped off among consumers
in the past decade, some of these companies have also
partnered with prosecutors to run misdemeanor and
felony diversion programs.142
One company, National Corrective Group, Inc.,
currently has contracts with more than 140 state
and local district attorney offices.143 Doing business
as CorrectiveSolutions and formerly known as
American Corrective Counseling Services (ACCS),
the California-based company reincorporated under
a new name in 2009 after declaring bankruptcy
following four class-action lawsuits brought against
it. Several related entities, Victim Services Inc. and
American Justice Solutions, Inc., purchased the
company’s contracts and assets and took over its
operation when the Consumer Financial Protection
Bureau (CFPB) was investigating its practices in
2014. The company was valued at over $31 million and
brought in over $8.8 million in revenue in 2012.144 The
CFPB took enforcement action against the company
in 2015, entering into an agreement requiring that
CorrectiveSolutions disclose its identity on letters
sent to consumers and that prosecutors first review
cases before letters are sent to debtors. Although that
agreement was reached in March 2015, at year’s end,
CorrectiveSolutions reported it sent only 10 cases out
of 3,175 to the prosecutor’s office in Orange County,
California, for review in 2015.145
The company now prints “Victim Services, Inc.”
above the formal district attorney letterhead on its
letters. As of January 2018 it had contracts in 13
states: Arizona, California, Colorado, Florida, Illinois,
Indiana, Iowa, Maryland, Michigan, Minnesota,
Nevada, New Mexico, and Pennsylvania.146

Bounceback, based in Missouri, is another check
collection company that, according to its website,
has contracts with more than 250 district attorneys’
offices in 29 states, including California, Colorado,
Florida, Idaho, Illinois, Iowa, Maine, Michigan, New
Mexico, New York, Oregon, Virginia, Washington,
and West Virginia.147 Under these contracts,
Bounceback sends out letters on district attorney
letterhead explaining that the prosecutor has
received a complaint for a bounced check, that this
can constitute criminal intent, and a warrant for
the check writer’s arrest can be issued. The letters
do not disclose that they are being sent by a private
company. The letters explain that the recipient can
avoid criminal prosecution by playing the full amount
listed in the letter and participating in a financial
education program, plus other fees and charges.
Bounceback charges $145 or more for the financial
training course, which it operates. This is often the
first demand notice the consumer receives about the
bounced check.
Diversion Solutions, formerly known as Financial
Crimes Services, likewise has contracts with
prosecutors and police departments in Wisconsin
and Minnesota for its Check Diversion Program.
In 2009, it reported receiving around $1.7 million
in annual payments through its 140 various
diversion programs in those two states.148 In 2010,
the Minnesota attorney general filed suit against
Financial Crimes Services, leading the Ramsey
District Court to issue an injunction, and in 2013
the state Commerce Department issued a cease-anddesist order against Check Diversion Program for
operating without a debt collector’s license.149
How Prosecutors Profit From Contracts With
Check Collection Companies
Under these contracts, prosecutor’s offices generally
receive half of the administrative fees, while
the check collection company receives the other
half plus the full cost of the mandatory financial
education course.150 For example, as of November
2015, the district attorney’s office in Orange County,
California, had received $2.54 million in total
A Pound of Flesh: The Criminalization of Private Debt

29

revenue from its check collection program operated
by CorrectiveSolutions.151
Revenues the district attorney’s offices receive from
these schemes are dropping as fewer people write
checks. For instance, revenue generated for the Kent
County, Michigan, prosecutor in 2016 was less than
one-fourth of what it drew four years earlier.152 The
proposal that Bounceback submitted to the San Diego
County District Attorney before it was awarded a
contract in 2011 estimated that the program would
generate $1.3 million over five years in addition to
the amount it would recover in restitution, but the
prosecutor’s office reported it actually received
$90,142 under its contract with Bounceback over a
three-year period from 2012 to 2014.153
Our research found that as of January 2018,
prosecutors in the following 200 counties and 17
sheriffs’ and police departments had contracts with
check collection companies. Some prosecutors
have recently terminated their contracts, including
Carroll County, Indiana; Sierra County, California;
and Pierce and Spokane Counties, Washington. In
2013, the Oregon Legislature prohibited public
agencies from allowing debt collectors to use their
seal or letterhead, which prompted some prosecutors
in that state to terminate their contracts. Also in
2013, several prosecutors in Massachusetts ended
their programs after the Boston Globe reported on
them. Because the district attorneys’ offices and the
companies do not generally publicize these contracts,
there may be other prosecutors’ offices with such
contracts that are not listed here.

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American Civil Liberties Union

PROSECUTORS CONTRACTING WITH
BOUNCEBACK
California: Mendocino, San Diego, Siskiyou, Sutter,
and Yuba Counties
Colorado: 6th Judicial District (Archuleta, La
Plata, and San Juan Counties), 13th Judicial District
(Kit Carson, Logan, Morgan, Phillips, Sedgwick,
Washington, and Yuma Counties), and 20th Judicial
District (Boulder County)
Idaho: Ada and Kootenai Counties
Illinois: Boone, Kankakee, Logan, McLean, and Mercer
Counties
Indiana: Greene County
Iowa: Pottawattamie County
Maine: Cumberland and Kennebec Counties
Massachusetts: Northwestern District (Hampshire
and Franklin Counties and town of Athol)
Michigan: Clare, Marquette, Montcalm, Shiawassee,
and Washtenaw Counties
New Mexico: 5th Judicial District (Chaves, Eddy, and
Lea Counties)
New York: Albany, Allegany, Monroe, Onondaga, St.
Lawrence, Warren, and Washington Counties
Virginia: Chesterfield, Henrico, Loudoun, Orange, and
Richmond Counties, and Hampton
Washington: Adams, Kitsap, Mason, Thurston, Walla
Walla, and Yakima Counties
West Virginia: Cabell and Kanawha Counties
Wisconsin: Columbia, La Crosse, and Monroe
Counties

PROSECUTORS CONTRACTING WITH
VICTIM SERVICES, INC.
Arizona: Pinal County
California: Colusa, Glenn, Imperial, Los Angeles,
Madera, Marin, Mariposa, Nevada, Orange, Placer,
Riverside, San Bernardino, San Joaquin, San Mateo,
Santa Barbara, Santa Clara, Santa Cruz, Siskiyou,
Sonoma, Tulare, and Tuolumne Counties
Colorado: Denver, 14th Judicial District (Grand, Moffat,
and Routt Counties), 17th Judicial District (Adams and
Broomfield Counties), 18th Judicial District (Arapahoe,
Douglas, Elbert, and Lincoln Counties), and 21st
Judicial District (Mesa County)
Florida: Broward County, Miami-Dade County, 12th
Judicial Circuit (DeSoto, Manatee, and Sarasota
Counties), and 15th Judicial Circuit (Palm Beach
County)
Illinois: Christian, Clinton, Cook, DeKalb, Edgar,
Effingham, Jersey, Kendall, LaSalle, Macon, Madison,
Moultrie, Putnam, Rock Island, Sangamon, St. Clair,
Vermilion, Will, and Winnebago Counties
Indiana: Allen, Boone, Delaware, Gibson, Hendricks,
Lake, Marion, Noble, Porter, Vanderburgh, and Vigo
Counties
Iowa: Dallas, Dubuque, Jefferson, Polk, and Warren
Counties
Maryland: Anne Arundel, Baltimore, Carroll,
Frederick, Harford, Howard, Kent, Prince George’s,,
and Wicomico Counties
Michigan: Barry, Bay, Genesee, Isabella, Kent,
Livingston, Macomb, Midland, Saginaw, and Wayne
Counties
Minnesota: Wright County
Nevada: Carson City and Lyon Counties
New Mexico: 2nd Judicial District (Bernalillo County),
7th Judicial District (Catron, Sierra, Socorro, and
Torrance Counties), 9th Judicial District (Curry and
Roosevelt Counties), and 13th Judicial District (Cibola,
Sandoval, and Valencia Counties)
Pennsylvania: Allegheny, Armstrong, Berks, Blair,
Bradford, Butler, Delaware, Huntingdon, Lackawanna,
Lancaster, Lawrence, Lehigh, McKean, Monroe,
Montgomery, Northampton, Somerset, and York
Counties

PROSECUTORS, SHERIFFS, AND POLICE
CONTRACTING WITH CHECK DIVERSION
PROGRAM
Minnesota District Attorney offices: Adams,
Alexandria, Chisholm, Oneida, Pine, Polk, and Todd
Minnesota sheriff and police departments: Carlton
County Sheriff’s Office and Burnsville, Cottage Grove,
Grand Rapids, Hastings, Henning, Inver Grove Heights,
Menahga, Minneapolis, Orono, Plymouth, Red Wing,
Roseville, St. Paul, Virginia, Wadena, and Waseca
Police Departments
Wisconsin District Attorney offices: Adams,
Chippewa, Franklin, Kenosha, Lincoln, Milwaukee,
and Winnebago Counties

According to the American Bar Association Standing
Committee on Ethics and Professional Responsibility,
these programs violate basic standards of
professional conduct for prosecutors. In an opinion
issued in November 2014, the ABA declared that
prosecutors violate ethical rules when they provide
letterhead to a debt collection company to threaten
prosecution when no lawyer from the prosecutor’s
office has reviewed the case file to determine whether
a crime has been committed. Without meaningful
review, these letters, the ABA found, are deceptive
and “misuse the criminal justice system by deploying
the apparent authority of a prosecutor to intimidate
an individual.”154
Check collection companies’ partnerships with
prosecutors’ offices also raise serious due process
concerns under the U.S. Constitution. In effect, a
private party is permitted to use the prestige and
power of prosecutors’ offices to coerce individuals
into surrendering property or putting their liberty in
jeopardy. By lending its authority to a private entity
seeking to extract these payments, the state actors
who authorize the programs may violate the due
process rights of collection targets.155

A Pound of Flesh: The Criminalization of Private Debt

31

Abusive Practices in a Poorly Regulated Industry

Arrest and jailing are the most extreme tactics, but
other abusive practices used by debt collectors—
including harassment and deceit—are more
widespread and equally effective. The Federal Trade
Commission (FTC) now receives more consumer
complaints about debt collectors than about any
other single industry.156 The agency received 897,655
complaints about debt collection in 2015, more
than triple the number of complaints it received the
previous year.157 The Consumer Financial Protection
Bureau (CFPB) received 88,000 debt collection
complaints in 2016.158 In a national survey of
consumer experiences with debt collectors, the CFPB
found that one in four consumers contacted by debt
collectors felt threatened.159
These abusive practices remain largely unchecked
because there is minimal government oversight and
scant protection from federal and state laws. The
primary consumer protection law is the federal Fair
Debt Collection Practices Act (FDCPA),160 but that
1977 law was last amended more than a decade ago. In
2009, the FTC urged Congress to improve consumer
protections and to update the law to reflect changes
in technology and the evolving industry.161 That same
year, the Government Accountability Office also
issued a report to Congress finding that the FDCPA
did not adequately address these challenges.162 To
date, Congress has failed to heed these and other calls
to amend the FDCPA to better protect consumers.
The FDCPA solely governs the practices of debt
collectors. It does not govern the conduct of original
creditors, who are exempt from its provisions, nor
does it cover check collection companies working in
32

American Civil Liberties Union

The FTC received

897,655
complaints about debt
collection in 2015.

conjunction with law enforcement. It also does not
control how courts should safeguard the rights of
consumers sued by debt collectors, a responsibility
that falls to state legislatures and court systems,
which have largely failed to take action to protect
consumers.
Policymakers and regulators rarely intervene to stop
abusive practices. The FTC filed 115 actions against
debt collection companies in 2015, up from only six
in 2013.163 While the CFPB has played a vital role in
regulating debt collectors, it monitors only about
2 percent of debt collection companies. And that
limited protection may soon disappear: President
Donald Trump has said that he wants to repeal or
dismantle nearly all of the Dodd-Frank Wall Street
Reform and Consumer Protection Act, the law that
created the CFPB. If Dodd-Frank is repealed, the
CFPB may be eliminated, or at a minimum defunded
and defanged. In February 2017, a panel of the Court
of Appeals for the District of Columbia Circuit ruled
against the CFPB’s independent leadership. On
January 31, 2018, the full court reversed this ruling
and rejected the constitutional challenge to the

structure of the CFPB, siding against the Trump
administration, which filed a brief against the CFPB.
The court’s divided decision may be reviewed by the
Supreme Court.
Monitoring collection agencies falls almost entirely
on the overburdened offices of state attorneys
general. They are tasked with enforcing state laws
that prohibit individuals and companies that collect
debts from engaging in unfair and deceptive acts and
practices. But those offices are often overmatched by
debt collectors’ lawyers and their lobbyists. Bills that
place tighter restrictions on debt collection practices
are often killed or watered down in state legislatures.
The industry has also been vocal in trying to weaken
the CFPB.164
Without meaningful regulation and enforcement,
the use of arrest warrants is rampant and underlies
a range of coercive and abusive collection practices.
Even when debt collectors cannot possibly secure
criminal prosecution or jailing for an unpaid debt,
some have falsely threatened debtors with such
sanctions anyway, especially when collecting payday
loans. And even before bringing collection actions,
some have pretended to have legal authority or falsely
threatened debtors with criminal prosecution if they
do not pay the debt.
For instance, one debt collection company in
Pennsylvania, Unicredit America, Inc., hired
employees to dress as sheriff’s deputies to deliver
fake subpoenas, falsely decorated its office to look
like a courtroom, and held fake legal proceedings
to convince debtors that they were being criminally
prosecuted, in an attempt to scare them into
paying.165 Collectors working for a California-based
company, Broadway Global Master Inc., posed as
law enforcement officers from fake government
agencies with names like the “Federal Crime Unit of
the Department of Justice.” The FTC sued Broadway
Global Master Inc. for tricking people into paying
debts they did not owe. Under a settlement agreement
reached in 2015, the company was banned from the
collection business and ordered to pay more than $4.3
million, of which the company paid only $608,500 due
to inability to pay.166

Such examples abound. One Texas-based collection
agency, Goldman Schwartz, was shut down by
the FTC for its abusive tactics, including telling
consumers “we can take you to jail” or “we’ll send
the sheriff’s department to your job and take care
of this the hard way.”167 Collectors with Audubon
Financial Group, another collection company in
Texas, impersonated law enforcement, identifying
themselves as a “law enforcement debt agency.”168
Collectors working for payday lenders in South
Dakota were using false titles designed to sound
like law enforcement agencies.169 Employees of a
Georgia-based firm, Williams, Scott & Associates,
claimed to be detectives or investigators for local
law enforcement agencies and threatened debtors
who took out payday loans with immediate arrest
and imprisonment if they didn’t pay.170 West Asset
Management Inc., a Nebraska-based company with
collectors in 13 states, settled a lawsuit brought by
the FTC for abusive practices, including threatening
to arrest people who owed money.171
Millions of consumers were targeted by Northern
Resolution Group LLC and Enhanced Acquisitions
LLC (later Delray Capital LLC), which purchased
tens of millions of dollars of consumer debt for
pennies on the dollar and engaged in illegal collection
practices, including impersonating law enforcement
and court officials and threatening borrowers with
arrest if they didn’t pay up.172 The CFPB and the New
York attorney general sued this network of companies
in November 2016, alleging that they had violated
the FDCPA and the Dodd-Frank law, which prohibits
unfair and deceptive acts or practices in the consumer
financial marketplace. The suit is moving forward,
and the plaintiffs recently asked a judge to force the
defendants to turn over documents.
In 2015, the FTC and the New York Attorney General
sued Vantage Point Services LLC—a Buffalo-based
company—and two of its affiliates for pressuring
debtors into paying $45 million by threatening arrest
and criminal prosecution. Based on thousands of
audio recordings, dozens of telephone scripts used
by collectors, hundreds of consumer complaints, and
corporate documents, the suit alleged the companies’
employees told debtors that they were working
A Pound of Flesh: The Criminalization of Private Debt

33

CASE STUDY

Jailed for four days for a credit
card debt
Helen Brown173 was jailed for four days after
she was found in civil contempt for failing to
answer interrogatories sought by a collection
agency. The Court of Common Pleas of
Dauphin County, Pennsylvania, ordered her
to pay $250 in attorney’s fees and issued a
bench warrant directing the sheriff to arrest
her. In the early morning hours of February
17, 2013, she was arrested, handcuffed, and
taken away from her home. A single mother,
she told the police that her 15-year-old son
was sleeping in the house, and despite
her pleas, the police did not allow her to
tell her son what was happening to her.
Brown was jailed for four days in Dauphin
County Prison. None of the prison guards or
officials could tell her why the warrant had
been issued against her, and she was not
allowed to use a telephone for the first 48
hours of her incarceration. She was housed
in a large common area of the jail with 10-15
other prisoners, some of whom were yelling
and two of whom were showing withdrawal
symptoms. Fearful for her safety, anxious
about the whereabouts of her son, and
deeply worried she would lose her job, she
did not eat or use the bathroom. She was
subjected to 15-minute bed checks by a

for or on behalf of district attorney’s offices or the
“Financial Crimes Division,” and that if they didn’t
pay, uniformed officers would come to arrest them.174
The ACLU found numerous other cases in which
alleged debtors were subjected to abusive collection
practices, including the following examples:
•	 Oxford Management Services, Inc., was sued
by a woman in Huntsville, Texas, for repeatedly
calling her while her husband was in Iraq,
threatening her with jail and loss of custody of
her children if she did not pay a debt that she
had previously arranged to pay with a home
equity loan.175 The debt collection company
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American Civil Liberties Union

guard, disrupting her sleep, and she suffered
multiple insect bites and bruises.
A Pennsylvania-based collection company,
Commonwealth Financial Systems, Inc., had
obtained a default judgment for $23,307
against Brown and pursued collection even
though the collection agency knew she had
filed for bankruptcy. She worked as a bar and
table server at a veterans’ organization for $9
an hour. She missed 40 hours of work while
in jail, plus an additional 20 hours of work
because her employer couldn’t schedule
her for work when her whereabouts were
unknown. She suffered embarrassment
about her arrest when meeting with
teachers at her son’s school and when she
explained to her son and her employer
what happened to her. Her elderly mother
received an anonymous mailing of a list of
prison detainees, which included her name.
She continued to suffer anxiety, difficulty
sleeping, and stomach problems after her
incarceration, but because she did not have
health insurance she was unable to seek
medical treatment. A court later awarded her
$10,000 in damages for emotional distress
caused by her incarceration.176

agreed to pay her $17,500 under a settlement
agreement.177
•	 A 78-year-old woman in Dayton, Ohio,
reported that she received multiple phone
calls from a debt collector claiming to be with
a prosecutor’s office, falsely claiming that a
prosecutor had issued a warrant for her arrest
due to unpaid medical bills.178
•	 A single mother in Detroit, Michigan, who had
struggled to pay her car loan after she lost her
job and was no longer able to pay when her
unemployment checks ran out, complained
to the CFPB that she was contacted by a debt

collector who claimed to be a detective and told
her that they were coming to arrest her and
that she was going to jail for car-napping.179
•	 An Arizona couple who fell behind on the
auto loan for the family’s only vehicle, which
they both used to get to work and to take
their children to school, received numerous
threatening calls from their auto lender. Even
though they had filed for bankruptcy, the debt
collector threatened to proceed with criminal
charges, to send law enforcement officials to
their home, and to have the husband arrested.
A court later awarded the couple $3,000 each
for emotional distress and $480 in lost wages.180
•	 A Texas couple sued a debt-buying company for
threatening them with jail time in an attempt
to collect an old credit card debt the collector
knew had been discharged when the couple
filed for bankruptcy. The couple presented
23 threatening voicemails as evidence in
their lawsuit, including several in which
the company’s collectors misrepresented
themselves as various legal authorities. The
court awarded them $17,000 in actual damages
and attorneys’ fees.181
•	 A Georgia woman sued a debt collector for
repeatedly threatening to put her in jail if she
did not make immediate payments toward an
$800 loan the company claimed her daughter
owed. She testified that she was so afraid of
incarceration that she borrowed money to
make biweekly payments, even when her power
was turned off because she didn’t have the
money to pay her utility bill. When she missed
a payment, the collector claimed to have
contacted the local Sheriff and demanded she
pay $1,200. The court awarded her $26,600 in
damages and attorneys’ fees.182
In some instances, collectors have called debtors and
falsely claimed that a warrant for their arrest has
been issued and could be recalled if they immediately
make a payment.183 In other cases, collectors have
sent fake arrest warrants to coerce people to pay.184
In the most extreme cases, people have reported that

debt collectors threatened to kill their dog or have
their children taken away by child welfare services
if they did not pay.185 In one case, an elderly woman
subsisting on Social Security benefits was told that if
she did not pay the funeral expenses for her husband,
the collection firm would get a court order to dig
up her husband’s body and repossess the casket.186
These threats and tactics are all plainly illegal under
the FDCPA.
Violations of Federal and State Consumer
Protection Laws
The exploitative and abusive practices of many
creditors and debt collectors described in this report
violate several federal and state statutes, including
exemption statutes, consumer protection laws, and in
extreme cases, criminal extortion statutes.
Even when debtors are not arrested and jailed, the
threat of a warrant being issued is often enough
to coerce them into paying even when they are
subsisting on Social Security or disability benefits or
other income that is legally shielded from collection.
In many cases, debtors took out high-interest
payday loans, borrowed from friends or relatives,
surrendered public benefits, or went without food or
medication to avoid the threat of jail.
While laws exempting certain assets from collection
differ from state to state, they generally protect
Social Security payments, pension income, veterans’
benefits, child support and alimony, unemployment
compensation, worker’s compensation, disability
benefits, and certain percentages of wages.187 Debtors
who survive solely on income that is exempt from
attachment are not required to make payments until
their financial situations change.188 Exemption laws
exist to prevent debtors from becoming solely reliant
on taxpayer support for basic subsistence.189 For lowincome debtors with salaries, wage garnishment may
be unavailable because federal and state laws protect
much of the disposable income of the poorest earners.
Creditors and debt buyers often request debtor’s
examinations and arrest warrants automatically,
regardless of a debtor’s financial circumstances, and
judges often issue warrants without first evaluating
A Pound of Flesh: The Criminalization of Private Debt

35

whether the debtor has any non-exempt assets to pay
the judgment.190 For instance, according to a lawsuit
filed by the Attorney General of Massachusetts, one of
the largest debt collection law firms in Massachusetts
arranged for a sheriff or constable to serve
consumers with civil arrest warrants even when the
firm was aware they subsisted only on exempt income
like disability payments. The firm, Lustig, Glaser &
Wilson, P.C., told consumers that they could “avoid
the need for the further involvement of the Constable
or Sheriff” if they would make voluntary payment
arrangements. In one case, the firm obtained a civil
arrest warrant against a 90-year-old woman. The
state’s suit argued that the firm, which filed 100,000
lawsuits over four years, sought arrest warrants
“in order to frighten and harass consumers, and to
coerce consumers into making payments from Social
Security benefits, and other exempt income.”191
Under a consent judgment reached in July 2017, the
firm agreed to pay $1 million in restitution and to
stop seeking warrants when it has reason to believe a
consumer has only exempt income or assets.192
Many debtors are unaware of exemption laws, a
significant problem because debtors must affirmatively
claim exemption rights.193 But deficiencies in notice
and the lack of access to counsel leave most debtors
without a way to learn about these rights. This
makes it imperative that judges review payment
plans, including out-of-court settlements, to ensure
that debtors are not coerced into forfeiting exempt
assets. Further, creditors and debt collectors should
be held accountable each time they unlawfully receive
payments from exempt sources.
Many of the practices documented in this report
clearly violate the FDCPA and similar state statutes.
Under the FDCPA, debt collectors may not engage
“in any conduct the natural consequence of which
is to harass, oppress, or abuse.”194 Debt collectors
may not “use any false, deceptive, or misleading
misrepresentation.”195 They may not represent or
imply that nonpayment of any debt will result in
arrest or imprisonment unless such action is lawful
and the collector intends to do it.196 Debt collectors
are prohibited from misrepresenting themselves as
being affiliated with the U.S. or any state including by
36

American Civil Liberties Union

use of a “badge, uniform or facsimile thereof;” falsely
representing or implying that “nonpayment of any
debt will result in the arrest or imprisonment of any
person” or that the “consumer committed any crime;”
or using written communication that “is falsely
represented to be a documented authorized, issued,
or approved by any court, official or agency of the
United States or any State.”197 When debt collectors
pose as law enforcement, send documents as if they
are from the court, threaten criminal charges, and
wrongly assert their power to send debtors to jail,
they violate the law.
Check collection companies’ partnerships with
prosecutor’s offices also likely violate the FDCPA
except insofar as the private companies fall within
the limited statutory exemption for certain entities
operating “a pretrial diversion program for alleged
bad check offenders.”198 However, the companies
operating these programs should qualify for the
statutory exemption only if they are subject to
meaningful oversight by a prosecutor’s office on
each individual bad check case. To the extent that
communications from private companies create the
false or misleading impression that they emanate
from a prosecutor’s office or other state agency, they
violate the law.199 Similarly, to the extent that such
communications falsely represent that they have
been sent by an attorney, or that nonpayment of the
debt will result in arrest or imprisonment, they also
violate the law.200
While prohibiting a wide range of abuses, the FDCPA
only applies to debt collectors and excludes original
creditors that collect their own debts.201 Given
such restrictions, more stringent state consumer
protection laws act as critical tools to hold creditors
accountable. For example, California, Iowa, and
Texas define debt collectors to include creditors.202
Other state laws are less explicit, but many state
courts have interpreted such statutes as applying
to creditors.203 Some states have laws that prohibit
creditors and debt collectors from threatening to
have debtors arrested unless permitted by law.204 The
FDCPA recognizes that certain states afford greater
protections to consumers and explicitly affirms that
persons are not exempt from such state requirements

as long as they are consistent with the FDCPA.205
Although some states have broader statutes,
consumers in other places without expansive laws
may lack basic protections from abusive creditors.206
In the most egregious cases, the abuses may
constitute criminal coercion or extortion.207 While
each state’s laws are different, many statutes
prohibit the extortion of money or property by a
number of means, including by threatening to accuse
a person of committing a criminal offense or by
subjecting them to humiliation, hatred, or ridicule.208
As shown in this report, creditors and debt collectors
sometimes intimidate debtors by threatening to
press charges or have them thrown in jail. When
creditors or debt collectors extract payments through
such practices, their actions may constitute a crime
when criminal intent can be proven.209

A Pound of Flesh: The Criminalization of Private Debt

37

Breaches of Fundamental Human Rights

The abuse of contempt proceedings and the subsequent
incarceration of debtors implicate a range of fundamental human rights. Article 9 of the International
Covenant on Civil and Political Rights (ICCPR), which
the United States ratified in 1992,210 recognizes the
right to liberty and prohibits arbitrary detention.211
The Human Rights Committee, the treaty body that
monitors the implementation of the ICCPR, broadly
interprets arbitrariness to include elements of
“inappropriateness, injustice, lack of predictability
and due process of law, as well as elements of
reasonableness, necessity and proportionality.”212
Without adequate protections for debtors, their
incarceration may constitute arbitrary detention in
violation of the ICCPR.
Moreover, Article 14 of the ICCPR states that all
persons are equal before courts and tribunals, and it
entitles all individuals to a “fair and public hearing
by a competent, independent, and impartial tribunal
established by law.”213 As this report describes, the
systemic deficiencies in state court debt litigation—lack
of judicial scrutiny, the proliferation of automatic
default judgments, deficient evidence, and the
incarceration of debtors as a result of pervasive abuses
of the contempt process—all raise significant concerns
about the fairness and competency of these court
proceedings.
Further, the guarantee of equality before the courts
in the civil context requires that “each side be given
the opportunity to contest all the arguments and
evidence adduced by the other party.”214 The Human
Rights Committee recognized that legal assistance,
which often determines whether an individual can
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American Civil Liberties Union

meaningfully participate in the proceedings, remains
essential for the right to a fair trial. The Committee
encourages states to provide free legal aid in civil cases
where individuals are unable to afford it.215 Access to
legal counsel would provide an important check against
the abuse of contempt proceedings and protect debtors
from unlawful coercion by creditors and debt collectors.
The right to counsel for incarcerated individuals,
regardless of whether the incarceration is a result of
a civil or criminal process, is enshrined in additional
human rights instruments and may constitute
customary international law. For example, Principle
17 of the Body of Principles for the Protection
of All Persons under Any Form of Detention or
Imprisonment, passed by the U.N. General Assembly
in 1998, states that a “detained person shall be entitled
to have the assistance of a legal counsel.”216 Principle
9 of the Basic Principles and Guidelines on Remedies
and Procedures on the Right of Anyone Deprived of
His or Her Liberty by Arrest or Detention to Bring
Proceedings Before Court states that any “persons
deprived of their liberty shall have the right to legal
assistance by counsel.”217 Arrest warrants issued
against debtors and their subsequent incarceration
most often occur without assistance of counsel, in
violation of these standards.
The United States has signed but not ratified the
International Covenant on Economic, Social and
Cultural Rights (ICESCR),218 and so while it is not fully
bound by the treaty, it is required to refrain from acts
that would defeat the object and purpose of it.219
The ICESCR provides for the right to an adequate
standard of living, including adequate food,

CASE STUDY

Jailed for a medical debt
Denise Zencka, a
cancer survivor and
mother of three, was
arrested in Indiana
in January 2013 for
outstanding medical
bills for her cancer
treatment. Diagnosed
with thyroid cancer
and unable to work
for four months due to
the cancer treatment, she was staying with
her parents in Florida as she was recovering
from the treatment. While she was out of
state during that period, she was unaware
of and unable to attend small-claims court
hearings in Lake County, Indiana, to recover
medical bills for her cancer treatment
that she was unable to repay. Three arrest
warrants for civil contempt were issued
against her for failure to appear. Even though
Zencka had filed for bankruptcy, officers
of the Lake County Sheriff’s Department
came to her home in Crown Point, Indiana,
to arrest her. Still dressed in her pajamas,
she was arrested in front of her eight-yearold autistic son, four-year-old son, and
12-year-old daughter. She was incarcerated
overnight. She was initially held in a large
holding cell with several men before she
was told to climb stairs to a holding cell for
women. She says her blood pressure rose
to a high level, which concerned her given
her history of seizures and strokes. Because
Zencka was unable to climb the stairs to the
women’s section, she was held in a men’s
mental health unit of the jail with glass
walls that allowed the male prisoners to see
everything she did, including use the toilet.
She says she was verbally abused, denied
medicine, denied 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.221

clothing, housing, medical care, and the continuous
improvement of living conditions.220 This minimum
protection is often violated by creditors and debt

collectors who use the threat of incarceration and
abuse the justice system to secure arrest warrants to
extract payments from debtors. Such behavior uniquely
affects indigent defendants, who may be forced to
subsist below an adequate standard of living. In a 2016
ruling, the Constitutional Court of South Africa found
that the lack of judicial oversight of post-judgment
collection actions to extract payments violates debtors’
rights and poses a threat to “the livelihood and dignity
of low-income earners, a distinctly vulnerable group in
our society,” and that “taking away the basic income
that indigent debtors rely on for subsistence, without
court supervision, rubs right up against the right to
dignity (which underlies all the socio-economic rights of
housing, food and health care).”222
Creditors and debt collectors should also respect
human rights. Specifically, the U.N. Guiding Principles
on Business and Human Rights calls on businesses
to avoid causing adverse human rights impacts,
prevent and mitigate such impacts, and cooperate
with remediation processes when human rights
abuses occur.223 Under such principles, creditors and
debt collectors are obligated to refrain from coercive
practices. These Guiding Principles also require
states to enforce laws that require businesses to
respect human rights and to encourage and require,
when appropriate, that businesses report how they
are addressing their human rights impacts.224 This
obligation also applies to federal and state judicial
systems, which must work to ensure that creditors and
debt collectors do not abuse the contempt process to
unlawfully extract payments from debtors.
Lastly, as this report describes, the incarceration of
debtors disproportionately affects communities of
color.225 Many human rights instruments, including
the Universal Declaration of Human Rights, ICCPR,
ICESCR, and the International Convention on the
Elimination of All Forms of Racial Discrimination
(ICERD), require that rights be recognized “without
distinction of any kind,” including by race.226 The
disparate impact of abusive private debt collection
practices on communities of color represents
a violation of the international standard of nondiscrimination, which explicitly recognizes evidence of
disparate impact as indicative of discrimination.
A Pound of Flesh: The Criminalization of Private Debt

39

Recommendations

The ACLU makes the following recommendations
to preserve the integrity of the courts and protect
alleged debtors against the unconstitutional and
abusive debt collection practices documented in this
report.

Arrest Warrants—Recommended
Reforms
Prohibit the issuance of arrest warrants in
debt collection cases.
(Recommendation for state legislatures and
state and local courts)
•	 Prohibit courts from issuing any “body
attachment,” “capias warrant,” “writ of
attachment,” or warrant for contempt, failure
to appear, or failure to comply for the arrest of a
debtor in debt collection cases.
Enact federal legislation prohibiting the use
of arrest warrants in debt collection cases.
(Recommendation for the U.S. Congress)
•	 Amend the Fair Debt Collection Practices Act
(FDCPA) to prohibit debt collectors from using
or seeking warrants for the arrest of alleged
debtors.

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American Civil Liberties Union

In the absence of a complete ban on the
issuance of arrest warrants in debt collection
cases, strictly limit the use of arrest warrants
for judgment debtors.
(Recommendations for state legislatures and
state and local courts)
•	 Issue an order giving the judgment debtor 90
days to 1) appear at the court or 2) provide the
post-judgment discovery if the judgment debtor
fails to appear for the post-judgment hearing or
comply with the court-ordered discovery order.
Explain in the order that the court may
issue a warrant if the judgment debtor does
not comply.
Require the order to be served by certified
mail or in hand.
•	 Issue a warrant at the end of the 90-day period
only if the judgment creditor 1) submits
proof that notice was actually received by the
consumer and 2) submits a proffer of evidence
that the judgment debtor has non-exempt
income or assets.
•	 Defendants should not be taken into custody
pursuant to any new or pre-existing warrant.
Instead, release judgment debtors on their own
recognizance, with no conditions, upon service
of the warrant or hold the post-judgment
hearing the same day they are taken into
custody. 

•	 Clarify that the warrant is fully satisfied once
the judgment debtor provides information
about income and assets.
•	 Require that the warrant expire 180 days after
it is issued.

•	 Require any post-judgment discovery to include
a list of all types of income and assets that are
exempt. This form should explain how to claim
these exemptions.
•	 Require judgment creditors to pursue all out-ofcourt post-judgment discovery options before
requesting a post-judgment hearing.

•	 State and local courts should codify the
aforementioned protections by issuing a
judicial bench card that creates guidelines
for judges to prevent the abuse of contempt
of court authority in civil debt collection
proceedings.

Provide effective notice of the post-judgment
hearing and alternative means of appearance.

States that permit judgment debtors to be
held overnight for a post-judgment hearing
must adopt additional protections.

•	 Require service of the notice of the postjudgment hearing by certified mail or in hand.

(Recommendations for state legislatures and
state and local courts)

•	 Require the notice to include a list of all types of
income and assets that are exempt. This form
should explain how to claim these exemptions.

•	 Set bail the same day that the individual is
taken into custody.
•	 Set bail based on an individual’s ability to pay.
•	 Set bail at the minimum required to secure
attendance at the hearing (including $0), not
the amount of the debt.
•	 Prohibit money bonds from being turned over
to judgment creditors.
•	 Prohibit requirements that judgment debtors
post bail in cash.
•	 Provide court-appointed counsel to indigent
defendants in post-judgment proceedings at
which a warrant may be issued that may result
in their incarceration.
Decrease the likelihood that consumers need
to appear in court post-judgment.
(Recommendations for state legislatures and
state and local courts)

(Recommendations for state legislatures and
state and local courts)

•	 Provide alternatives such as telephonic or
video appearances to allow people to attend the
hearing without physically appearing in court.
Ensure due process protections at postjudgment hearings.
(Recommendations for state legislatures and
state and local courts)
•	 Require the court to engage in a colloquy to
review any settlement agreement and confirm
that it does not require payment from exempt
income or assets.
•	 Require that post-judgment proceedings be
conducted entirely in the judge’s presence and
memorialized through court reporting and/or
audio recording.
•	 Prohibit the court from scheduling any further
post-judgment hearings unless the judgment
creditor provides evidence that there may be
additional income or assets.

•	 Develop robust options for discovery of
income and assets outside of court, such as
standardized forms that can be filled out by
mail, phone, or online.
A Pound of Flesh: The Criminalization of Private Debt

41

Prohibit courts from issuing orders to pay.
(Recommendation for state legislatures and
state and local courts)

stipulate that they will not seek or threaten to
seek warrants for the arrest of debtors.

•	 Prohibit courts from ordering a judgment
debtor to pay or imprisoning an individual who
fails to comply with an order to pay.227

Bad-Check Enforcement Programs—
Recommended Reforms

Take enforcement action to curb the abusive
use of warrants in debt collection cases.

End bad-check enforcement programs run by
private check collection companies.

(Recommendations for state attorneys general,
the Consumer Financial Protection Bureau,
and the Federal Trade Commission)

(Recommendations for district attorney offices
and state legislatures)

•	 Bring enforcement actions against creditors
and debt collectors who use warrants to
frighten consumers or to coerce them into
making payments from exempt income, or
who falsely claim to have legal authority to jail
consumers in order to coerce payments.
•	 Enter into consent or remediation agreements
with creditors and debt collectors, to ensure
they do not use warrants in collection cases.
•	 Investigate whether the use of post-judgment
warrants has a disparate impact on particular
communities.
Issue regulations or advisory opinions to curb
the abusive use of warrants in debt collection
cases.
(Recommendations for state attorneys general,
the Consumer Financial Protection Bureau, and
the U.S. Department of Education)
•	 Issue regulations or advisory opinions
clarifying that using a warrant to coerce
payment or frighten alleged debtors violates
state and federal consumer laws.
•	 Publish know-your-rights information for
consumers regarding their rights under federal
and state law when threatened or served with a
warrant in debt collection cases.
•	 Ensure that all contracts with attorneys
collecting unpaid federal student loans
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American Civil Liberties Union

•	 District attorney offices should terminate
contracts with private companies for the
administration of bad-check enforcement
programs.
•	 State legislatures should pass legislation
prohibiting district attorney offices and
other public agencies from contracting with
private companies to operate check diversion
programs.
In the absence of a complete ban on badcheck enforcement programs run by private
companies, enhance consumer protections.
(Recommendations for state legislatures and
district attorney offices)
•	 Prohibit district attorney offices and other
public agencies from allowing private debt
collectors to use their seal or letterhead.
•	 Prohibit referral if the balance is less than the
minimum dollar threshold for prosecution
under state law.
•	 Require individual review by the district
attorney for each account that goes to the check
diversion program and set up a mechanism to
audit this internal review. 
Require that for a debt to be referred, the
district attorney must first confirm that
1) the consumer received at least two
notices of the unpaid check, 2) the district
attorney’s office would otherwise prosecute

this case but for the check diversion
program, 3) there is no evidence that the
consumer stopped payment for a reason
that is legal under federal law U.CC. §
4-403, and 4) the consumer is not listed in
any government databases as receiving
government benefits.
•	 Require standard language in letters that can
be set by regulation.
•	 Limit the fees that private collectors can
charge to no more than the amount of the notsufficient-funds (NSF) checks fee set by state
law.
•	 Require any money generated by bad-check
enforcement programs beyond restitution
be paid to a legal services fund to represent
individuals with consumer debts.
•	 Prohibit requirements for diversion seminars
or require free online alternatives.
•	 Adopt transparent reporting requirements
for district attorney offices, including the
number and details of cases referred for private
collection, the terms of its diversion program
agreements, and revenue generated for the
government and the company.
Take enforcement action and issue
regulations to curb private companies’
misuse of bad-check enforcement programs.
(Recommendations for the Consumer Financial
Protection Bureau and state attorneys general)
•	 Issue regulations or advisory opinions to
clarify which actions by bad-check enforcement
programs violate federal and state consumer
protection laws.
•	 Bring enforcement actions against debt
collectors operating bad-check enforcement
programs outside the limited exemption
embodied in 15 U.S.C. § 1692p(a).

Other Due Process Deficiencies in
Debt Collection—Recommended
Reforms
Ensure due process protections for
defendants in debt collection lawsuits to
reduce default judgments.
(Recommendations for state and local courts)
•	 Amend court rules to increase judicial
scrutiny over applications for default
judgment by requiring debt buyers to produce
documentation that the lawsuit was brought
prior to expiration of the statute of limitations
and to disclose if the debt is time-barred.
•	 Modify rules to permit entry of default
judgment against a defendant only after the
defendant has received timely and actual notice
of the summons and subsequently fails to
appear at a trial setting.
•	 Require plaintiffs filing petitions to collect
consumer debt to provide evidence of the
debt, e.g., documentation of all assignments
demonstrating the plaintiff’s right to collect the
debt from the consumer.
•	 Chief justices or presiding judges of higher
courts should exercise their administrative
oversight authority to more closely supervise
local or municipal courts, to determine whether
they are complying with existing law and court
rules in the adjudication of debt collection
lawsuits, and to recommend best practices.
•	 State bar associations and legal aid offices
should create projects that provide sameday legal assistance in the courthouse for
consumers in civil debt collection cases. At a
minimum, they should provide legal advice for
pro se litigants and offer limited assistance
representation at their court appearances.

A Pound of Flesh: The Criminalization of Private Debt

43

Acknowledgments

This report was researched and written by Jennifer
Turner, Principal Human Rights Researcher in
the ACLU’s Human Rights Program. Terry Tang,
Director of Publications and Editorial, edited
the report. It was also reviewed by Jamil Dakwar,
Director, Human Rights Program; Nusrat Choudhury,
Senior Staff Attorney in the ACLU’s Racial Justice
Program; and Dennis Parker, Director of the ACLU’s
Racial Justice Program. Legal intern Sara Robinson
provided invaluable legal research and writing
assistance. Technology intern Dhruv Mehrotra
provided invaluable research assistance by finding
and analyzing court records data. Legal assistant
Thaddeus Talbot provided invaluable administrative
and research assistance for this report.
The ACLU thanks the numerous consumer rights,
legal aid, and poverty rights lawyers and advocates
who assisted us in our research. In particular, we
thank April Kuehnhoff, National Consumer Law
Center; Emanwel Turnbull, The Holland Law
Firm, P.C.; Marceline White, Maryland Consumer
Rights Coalition; Amy Hennen, Maryland Volunteer
Lawyer Service; Katherine Rybak, Indiana Legal
Services; Michael Tafelski, Georgia Legal Services
Program; John Smith and Katie Johnson, Legal
Aid of Western Michigan; Lorray Brown, Michigan
Poverty Law Program; Nadine Cohen, Matthew
Brooks, and Jade Brown, Greater Boston Legal
Services; Thomas Beauvais, Volunteer Lawyers
Project; Ginger Haggerty, The Midas Collaborative;
George K. Weber, Northeast Legal Aid; Catherine
Rizos, Massachusetts Legal Assistance Corporation;
Marie DeFer, Lakeshore Legal Aid; Michael
Nelson, Mike Nelson Law; Ian Lyngklip, Lyngklip &
44

American Civil Liberties Union

Associates; Scott Kinkley, Northwest Justice Project;
Jennifer Gaughan, Legal Aid of Nebraska; Kevin
Ruser and Ryan Sullivan, Nebraska College of Law
Civil Clinic; Allen Schwartz, Coordinated Advice
& Referral Program for Legal Services (CARPLS);
Michelle Weinberg, Legal Assistance Foundation
of Metropolitan Chicago (LAF); John Roska, Land
of Lincoln Legal Assistance; Carla Leticia SanchezAdams, Texas RioGrande Legal Aid, Inc.; Paul Arons,
Law Office of Paul Arons; Blythe Chandler, Terrell
Marshall Law Group PLLC; Christina Henry, Henry,
DeGraaff & McCormick, P.S.; Michael A. White,
The Law Offices of Michael A. White, LLC; Michel
Phillips; Thomas Gokey, Laura Hanna, Luke Herrine,
and Astra Taylor, The Debt Collective; Susan Shin,
New Economy Project of New York; Lisa Stifler,
Center for Responsible Lending; Dalié Jiménez,
University of Connecticut School of Law; and Martha
Bergmark, Voices for Civil Justice.
The ACLU extends its deepest gratitude to the
consumers who shared their stories for this report.

Appendix I: Case Studies

Case Studies: Arrest Warrants and
Jailing in Debt Collection Cases
Medical Debts
The ACLU documented the arrests of people in
connection with post-judgment proceedings to collect
debts to ambulance services, pharmacies, addiction
service providers, radiology offices, surgery centers,
women’s health care providers, urgent medical
care providers, pediatric clinics, rehabilitation
services, doctors, and dental offices. We documented
numerous cases of arrest warrants and jailing for
medical debts in Maryland, Nebraska, and Idaho, as
well as some cases in Arkansas, Indiana, Kansas,
Tennessee, Utah, and Washington. For instance, in
Maryland we documented hundreds of cases in which
people were jailed for medical debts of under $1,000,
including cases in which people were arrested in
cases involving debts of $217.50 and $230 owed to an
addiction service provider.
In Nebraska, Ms. R,228 a single mother who works as
a waitress, was arrested in her home in front of her
children one evening for failure to appear in court
over a $176.50 medical debt. When she asked law
enforcement officers at the time of her arrest and
when she was booked at the county jail what she was
being arrested for, they told her they didn’t know. She
had been summoned to court for a “debtor’s exam” to
answer questions about her income and assets, but
she had not received notice of the hearing (called an
“Order in Aid of Execution”). In Nebraska, debtors
often are not aware that they have been ordered to
appear in court, as the law does not require personal

service or proof of actual notice of the order to
attend the debtor’s exam; rather it requires only an
attempt to serve the order at the person’s last known
residence or place of employment. In Ms. R’s case,
the order to appear in court was left with a colleague
at the restaurant where she worked and it was never
given to her, and there was no proof of service in the
court file. An arrest warrant was issued against her
for contempt of court for failure to appear. She was
searched, forced to change out of her clothing and
into a jail uniform, and placed in a locked jail cell
with plywood covering the window. Because she did
not have the money to pay bail, she was jailed for two
hours until her father could arrive with the $100 to
bail her out.
Ms. W229 of Lawrence, Kansas, was arrested three
times on civil bench warrants for contempt for
failure to appear at a hearing to provide information
about her income and assets. She owed a medical
debt to Stormont Vail Healthcare Inc. in Topeka for
a hospital stay while she was uninsured, and the
creditor was seeking to collect on a judgment for
$5,236.59. Each time Ms. W did not appear in court,
the Shawnee County District Court issued a bench
warrant for her arrest at the request of the creditor.
She was arrested in October 2013 and required to
post a $150 cash bond. She had previously been
arrested by the Shawnee County Sheriff on bench
warrants in July and August 2012, and after each
arrest she was required to pay cash bonds of $50 and
$100. In all three cases, the cash bonds she paid were
forfeited to the creditor.

A Pound of Flesh: The Criminalization of Private Debt

45

Ms. W worked as an outreach and enrollment
specialist at the Heartland Community Health
Center in Lawrence, Kansas, helping people enroll
in and navigate the Affordable Care Act (ACA).
She was working to pay off the medical debt and
support her family while trying to help others
without adequate medical insurance avoid similar
troubles. When a local press outlet discovered the
existence of an outstanding arrest warrant, the
ensuing local and national press coverage tarred
her. Journalists incorrectly suggested the warrant
was criminal rather than civil in nature, and some
media outlets and political pundits used the existence
of the warrant against Ms. W to argue that ACA
navigators posed a risk of identity theft. A state
senator subsequently introduced new legislation to
place more stringent restrictions and regulations
governing ACA navigators. Ms W. had in fact passed
a background check and was unaware of the warrant
until the media coverage, and she hastened to satisfy
the warrant by appearing in court and paying the
bond. Ms. W’s employer defended her, issuing a
statement that said, “We support her commitment
of helping the uninsured to obtain coverage that
could help prevent the difficult circumstances she has
experienced first-hand.”
Rex Iverson got a knock on his door early one
Saturday morning in January 2016. A deputy
sheriff was there to serve Iverson with a $350 bench
warrant issued by a Utah justice court shortly after
Christmas. Iverson was arrested and jailed at Box
Elder County Jail. Jail officials asked Iverson whether
he had the money to post bail; because he did not, they
took him to a holding cell to wait while the booking
process was completed. Later that afternoon, Iverson
was found unresponsive, alone in the holding cell.
He was declared dead shortly afterward. A police
investigation later determined that Iverson, who
was 45 years old, had killed himself with strychnine
poison rather than stay in jail.230
Iverson had committed no crime. He was
incarcerated for failing to appear in court over an
unpaid bill for a ride to the hospital on Christmas Eve
two years earlier that cost him more than $2,000.231
Iverson had no means to pay the medical debt, even
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American Civil Liberties Union

after he was sued in small-claims court and had a
default judgment entered against him. The creditor’s
attempt to garnish his wages failed because he was
unemployed. He did not show up after the court
issued a notice to appear at a hearing regarding the
unpaid debt, and a Tremonton Justice Court judge
issued a bench warrant for his arrest. Iverson had
struggled financially since the death of both his
parents in a car crash, and though he had previously
worked as a welder and a heavy equipment operator,
he was out of work and living in his parents’ home at
the time of his arrest. The court did not appoint an
attorney to represent Iverson.
In the two years before Iverson’s death, 13 people had
been jailed on civil bench warrants in the northern
Utah county jail where Iverson was held. The county
has fewer than 50,000 people, and that court handled
only 410 civil cases during the previous year.232
Statewide, in 2016, Utah district court and justice
court judges issued 5,831 bench warrants in civil
cases, a 6 percent increase over the previous year,
according to state courts system data.233
Student Loans and Other Education Debts
The ACLU documented cases of arrest warrants
issued to collect unpaid federal and private student
loans, online for-profit education course fees, school
textbook fees, and two cases in which parents were
arrested in cases to collect preschool fees. We
found arrest warrants issued by federal judges for
contempt of court—either for failure to appear at a
judgment debtor exam or for failure to comply with
a court order compelling discovery responses—in
student loan collection cases in California, Florida,
Minnesota, and Texas. The Department of Education
had sued and obtained judgments against these
alleged debtors for defaulted student loans. We
also documented cases in which judges threatened
to issue arrest warrants in federal student loan
collection cases in California, Connecticut, and
Tennessee.
According to the U.S. Marshals Service in Houston,
its office processed 25 arrest warrants for people
who missed court appearances in connection with
unpaid federal student loan debts during 2015.234

Over the last 10 years, there have been an estimated
225 arrests in student loan cases in the U.S. District
Court for the Southern District of Texas alone.2358 The
U.S. Marshals Service did not adequately respond
to a Freedom of Information Act request filed by the
ACLU seeking information about arrests made in
student loan collection cases nationwide, but we have
documented cases of arrests made in 2015 and 2016
in California and Texas. In 2003, U.S. marshals in
Minnesota conducted “Operation Anaconda Squeeze”
to arrest student loan debtors who failed to appear
in court; in that operation, 10 warrants were issued
for the arrest of student loan debtors who failed to
appear at a debtor’s examination, four of whom were
arrested. At the time, U.S. Attorney Robert Small
told the Minnesota Chronicle, “We don’t do it very
often. The bottom line is that the threat of arrests is
an effective tool.”236
In Texas, Paul Aker was arrested in February 2016
by seven armed U.S. marshals at his Houston home
for an unpaid $1,500 student loan he had borrowed 29
years earlier.237 Aker says he received no certified mail
or notices about the debt or the court case brought by
a private debt collection attorney seeking to collect
the debt on behalf of the federal government. After
his arrest, he had to sign the repayment plan for the
student loan and was ordered to pay more than twice
the amount of the original loan, including interest,
court fees, and $1,258.60 as reimbursement to the
marshals for his arrest.238
Tracie Mozie was arrested in Texas for failing to
appear in court over a federal student loan she took
out in 1986 to pay for truck driving school. Her mom
had applied for a $1,500 loan on Mozie’s behalf, which
grew to more than $13,000 with interest and fees.
Because Mozie is unemployed and subsists only on
disability benefits totaling $700 a month, she has
been unable to repay the loan. She had no idea that
she had been sued to collect the debt. She initially
was served at an incorrect address and when she did
receive notice of a post-judgment proceeding in the
case, she did not understand why she was summoned
to court. She missed a December 2014 court date, and
at the collection attorney’s request, a federal judge

issued a warrant for her arrest. Mozie says she didn’t
know that a warrant had been issued until she was
arrested.
Three armed U.S. marshals knocked on her
apartment door while she was sleeping. Her
boyfriend opened the door and two marshals
entered her bedroom with their weapons drawn.
Mozie, who uses a prosthetic leg due to a congenital
birth defect, was lying in bed and not wearing her
prosthesis. She said, “They had a warrant for my
arrest and I asked them for what, he didn’t say what
it was for. He said, ‘He’ll tell you later.’”239 After she
put on her prosthetic leg and got dressed, the U.S.
marshals handcuffed her and put shackles on her
feet and waist, then walked her outside in front of her
neighbors. “Where was I running to?” she asks. “I
was so embarrassed.” Mozie was jailed overnight
at the courthouse jail in downtown Houston, where
she also was photographed and fingerprinted. She
was brought before a federal judge the following day,
who found that she had no ability to make payments
on the judgment. She continues to be afraid of being
arrested again: “I’m scared someone is going to come
to my door and get me again. I just want this to be
over.”240
We also documented cases in Indiana, Maryland,
and Massachusetts in which debt collectors obtained
arrest warrants for debtors with private student
loans. In these cases, we have no documentation
of an arrest having been made. For instance, in
Maryland, the Baltimore City District Court issued
a body attachment in August 2014 for the arrest of
a man who allegedly owed $23,860.84 in student
loan debt owed to SLM Private Credit Student Loan
Trust. The student loan lender, which is associated
with Sallie Mae, had obtained a default judgment
against the man and requested and obtained the body
attachment after he missed an oral examination and
repeated show cause hearings.
In Massachusetts, Mr. W241 surrendered himself
to court on a capias warrant for an alleged student
loan debt. In 2011, he had a contract with a for-profit
company offering education courses for college credit
by mail. The company sold educational tutorials that
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47

it promoted as providing students with the necessary
prerequisites to enroll in a program from which they
ultimately could obtain a license, and it charged
thousands of dollars in upfront costs financed by longterm personal loans. Mr. W took out a private loan
through the company to cover the $4,000 program
cost. He received one book from the company. When
he called to complain that the book was useless and to
ask for the rest of the materials, he was assured that
he would receive more materials in the mail. After
receiving nothing further, Mr. W thought he had been
scammed and refused to pay anything further on the
loan. The educational company then sold the loan to
a debt collector who sued Mr. W to collect on the debt.
Mr. W had received several harassing phone calls
and letters from the debt collector and had stopped
opening mail he did not recognize. In January 2016,
he received a call from the local sheriff’s office telling
him to come to court the next day because he had
a small-claims case for which a warrant had been
issued against him. Mr. W met an attorney from
Greater Boston Legal Services while he was in smallclaims court for the warrant, and the attorney helped
him to secure an order from the court vacating the
default judgment, defend against the lawsuit, and
obtain a settlement in his favor. The company has
since been shuttered after being sued by two state
attorneys general and the Federal Trade Commission.
An Indiana court issued an arrest warrant in a case
to collect an unpaid school textbook rental fee. Mr.
K’s242 son had transferred to a school in Warrick
County in southern Indiana during the school year
and had to share school textbooks with another
student because they did not have textbooks for him.
The Warrick County School Corporation sent him
a bill for $101 for the use of the rented books for the
year. He says that he and his wife both worked 60 or
more hours a week at that point and were busy and
stressed out, and they forgot about the book fee and
did not pay it. He also believed he should not have
to pay the fee since their son was having to share
the books and did not have books of his own. They
eventually moved from Warrick to Vanderburgh
County and were completely unaware that the
Warrick County School Corporation had sued them
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American Civil Liberties Union

for the unpaid textbook rental fee. According to Mr.
K, they were never served with papers, called, or
contacted in any way. The Warrick County School
Corporation obtained a default judgment of $301 plus
court costs of $102, so the total Mr. K owed was $403—
far more than the original $101 bill. Bench warrants
were issued by Warrick County Superior Court for
Mr. K and his wife on February 20, 2014, for failure
to appear at proceedings supplemental to execution,
and a cash-only bond on the warrant was set at $210
each.
Mr. K remained unaware of the lawsuit and the bench
warrants until he applied for a law enforcement
job. He had worked as a police officer for 13 years in
Tennessee and applied for a part-time position with
a local law enforcement agency. “I was prime for the
position and was told that they wanted me. I was
excited to get back on the job. When they went to do
my background check, they advised me that I had a
writ warrant for my arrest,” Mr. K said. “I was passed
up for the job, naturally. Because of this stupid law, I
missed out on getting back into a law enforcement
officer position.” Outraged, he added, “I understand
that when people owe money for a legitimate bill, they
should pay it, and if not be held accountable for it.
Isn’t that what judgments and garnishments are for?”
Mr. K ultimately paid the fee to clear the warrant
because he “had no other choice but to pay it.”
Housing Debts
We documented cases of arrest warrants and jailing
for unpaid rent, rent owed due to broken leases, fees
assessed for alleged damage to rental property,
unpaid homeowners’ association fees, and unpaid
mortgage foreclosure deficiencies.
Mr. B243 was arrested in Maryland and jailed twice
for back rent the landlord said he owed. At age 21, Mr.
B got his first apartment of his own, but he fell behind
on his rent payments after he lost his full-time job a
few months later and his mother became very ill. He
sometimes had to pay the rent late, and he had to pay
large late fees some months. But he says he thought
he was keeping up with what he owed. In 2008, while
he was still living in the apartment, a friend called

saying that he had seen Mr. B’s name on a docket at
the courthouse in Towson, Maryland. According to
Mr. B, he had never received any papers telling him
to appear in court and this was the first he had heard
about the case brought against him to collect back
rent. He went to the courthouse to find out what he
needed to do, and he was arrested and detained for
about a day before he was released without a bond.
Four years later, in April 2012, he was surprised to
learn that he had again been ordered to appear in
court over rent the debt collector said he still owed.
He went to the courthouse in Essex to try to resolve
the situation. He said, “When I told the clerk about
the issue, this time I was immediately handcuffed
and shackled and put under arrest. The police drove
me, in handcuffs, in a squad car to the police station
where I was booked and put into the system.”
The booking process took hours, and Mr. B said, “It
was very humiliating—especially because I was trying
to do the right thing and get the situation resolved.”
After he was booked, the police drove him back to the
courthouse in Essex, where he was jailed and put in
a holding cell. After several hours in the cell, he was
taken before a judge, who set bail at $2,500. Mr. B
was jailed at Baltimore County Jail for about a day
and a half. It took his mother, whom Mr. B describes
as “an older woman who’s sick and doesn’t have
much money,” more than a day to post a bond of
$250. When Mr. B appeared in court again, the judge
ordered that the $250 bond be handed over to the debt
collector. “Being arrested and shackled made me
feel like an animal in a cage. And it was really unfair
because I turned myself in to the court to try to do
the right thing and find a way to resolve the situation.
They didn’t have to arrest me that way,” Mr. B said.
“The experience put a huge strain on me for many
months. The whole thing has been very painful and
unfair for me and my mother and only made it harder
for me to find work and pay my bills.”
Ms. C,244 a disabled Indiana woman with three
children, was sentenced to 30 days in jail for failing
to obey a court order to pay $110 on a housing debt.
The small-claims court had ordered her to pay $10
a month on a $445 debt owed to her landlord, Grace
Whitney Properties, but she was unable to make

a number of the monthly payments. When Ms. C
was unable to make payments, the creditor filed for
contempt against Ms. C at least 12 times, and she
appeared for numerous hearings on the matter in
the Vanderburgh County Small Claims Court. The
creditor asked for a writ of attachment to be issued
for Ms. C’s arrest, and the court complied. Even
though Ms. C told the court she was disabled, had
no money, and her only source of income was Social
Security disability benefits, which was legally exempt
from collection, the small-claims court ordered Ms.
C to serve 30 days in jail. The magistrate informed
Ms. C that she could “purge herself of contempt” and
get out of jail if she paid the $110. Because she could
not pay, deputies handcuffed Ms. C, who was crying,
took her out of the courtroom, patted her down in the
hallway, and were going to take her to jail. A woman
in the courtroom who had never met Ms. C was so
horrified by the situation that she gave her $100 to
prevent her from being jailed. The Indiana Court of
Appeals ruled the procedure violated the Indiana’s
Constitution’s provision that “there shall be no
imprisonment for debt.”245
A warrant was issued for the arrest of a Washington
man for failure to appear in court over the amount he
still owed to his mortgage lender, Zions First National
Bank, after his home had been seized in foreclosure.
The lender had sold the home in a trustee sale for less
than the outstanding balance on the mortgage. The
bank sought payment for the mortgage foreclosure
deficiency judgment of $92,607.10 plus interest,
attorneys’ fees and other costs. He missed a single
scheduled hearing for supplemental examination to
provide information about his income and assets. In
March 2014, the Lewis County Superior Court issued
a bench warrant directing the sheriff to arrest him
for failure to appear and set bail at $3,000. He only
avoided arrest because the warrant was quashed
after he filed for bankruptcy.246
A warrant was issued for the arrest of Ms. B,247 a
Maryland woman who missed a court hearing that
she had asked to be rescheduled because she was
taking her sick child to the hospital. A property
management company sued Ms. B, a former tenant
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49

who had left the property three years earlier. The
company claimed she owed them almost $2,200 in
various charges, including rent, water bills, late
fees, court costs, post office charges, and clearing
out the property. The company did not provide any
documentation of these charges other than a letter
it had mailed to the former tenant at the apartment
she had already vacated. The court awarded a default
judgment in September 2013 and only one month
later the creditor asked for an oral examination of
Ms. B in court, at which she was to bring “All papers
relating to assets, income, expenditures, property,
credits and business transactions since [January
2012], including bank books, checking accounts,
income tax returns, auto purchase, television,
furniture, real estate purchases, etc.” Ms. B did not
appear in court and the creditor asked for a hearing
to show cause why she should not be held in contempt.
In the meantime, the creditor garnished Ms. B’s
wages, but she lost her job two months later.
On the morning of the April 2014 hearing, Ms. B
called the court and asked to postpone. The court file
says “On the way to hospital / Univ. of MD w/ sick
child [illegible] Pediatrics / Request new date to come
in.” She also told the court that she had not received
service on anything, which the file reflects as well.
The court denied her request and instead issued a
body attachment ordering her arrest in June 2014.
Household Debts
In cases documented by the ACLU, arrest warrants
were issued and debtors were jailed in post-judgment
collection actions on household debts such as unpaid
utility bills, heating repairs, and furniture purchases.
James Davis was jailed for money he owed on a line
of credit extended to him by Nebraska Furniture
Mart in Kansas. He bought a bed, mattress, and
computer on the account, but he later lost his job and
his financial situation deteriorated. He fell behind in
payments, and the store sold the debt to a collection
agent, the law firm Evans & Mullinix, which sued
Davis and won a judgment for $1,987 plus $827.90
in interest and attorney fees. Davis later got a job
and worked to make payments on the debt, but he
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American Civil Liberties Union

lost that job as well and fell behind again. The debt
collector sought and obtained from the Wyandotte
County District Court an Order for Hearing in Aid of
Execution requiring Davis to appear in court for an
Examination of Judgment Debtor. Davis repeatedly
appeared in court for these hearings to examine his
ability to pay, and the collector requested a hearing
only 10 days after the prior in-court examination.
Davis was unemployed, had no assets to satisfy the
judgment, and was subsisting on unemployment
benefits that Nebraska Furniture Mart had already
garnished even though they were exempt from
collection; the collector had no reason to believe his
financial circumstances had changed.
When Davis eventually missed a hearing, the judge
cited him for contempt of court and ordered that a
bench warrant be issued for his arrest. The collector
sent Davis a letter notifying him of the judge’s order
authorizing an arrest warrant and, “as a courtesy,”
giving him the opportunity to set up a payment plan
to pay the balance of the debt. Davis agreed to a new
payment plan and struggled to make the monthly
$100 payments for the next three months, but he
missed one payment and was 10 days late in making
another payment. Four days after Davis made the late
payment, the collection lawyer filed an order asking
the court to issue the bench warrant and provided
a draft warrant. The judge signed the warrant the
same day. Davis was jailed when the collection agent
had the warrant processed. Two Wyandotte County
sheriff’s deputies knocked on his door at 9:30 p.m. as
he was watching the State of the Union in January
2011. They arrested him, handcuffed and shackled
him, and took him to jail. He was jailed for several
hours until, with the help of his girlfriend, he was able
to pay the cash bond of $250 to secure his release. The
judge ordered the $250 bond handed over to Nebraska
Furniture Mart.
In Massachusetts, Iheanyi Daniel Okoroafor, a
73-year-old retired mental health case manager, was
ordered jailed in 2014 when he appeared in smallclaims court over a $508 debt for a furnace repair.
Okoroafor had paid $350 of the bill for repairs to
his boiler, and the unpaid portion of the repair bill
totaled $459.65; court costs increased the debt to

$508. Okoroafor said the repair was improperly done
and had not fixed the problem with his furnace. The
heating contractor sued Okoroafor and obtained a
default judgment against him for $508.27; Okoroafor
says he was never notified of the April 2013 hearing.
At the June 2014 hearing in Belchertown District
Court, he also told the judge that he did not have the
funds to make the payments or hire an attorney, as
his main source of income is a $2,000 monthly state
pension. Okoroafor explained that after paying
monthly bills, including medical bills for his wife who
suffers from dementia and tithing of 10 percent of
his income to his church, he is “left almost without
anything.” Three months earlier, he began visiting a
food bank once a week because he could not afford to
buy enough food. He was behind on utility bills, and a
bank had foreclosed on and taken a rental property he
owned.
Okoroafor thought he would have a chance to explain
why he did not pay the bill, but the judge concluded
that Okoroafor could pay the debt, ruled him in
contempt of court for failing to do so, and ordered him
jailed for 30 days or until he paid the full amount owed.
As Okoroafor was taken away in handcuffs, he begged
the judge not to incarcerate him so he could see his
hospitalized wife, pleading, “My wife is in the hospital.
I need to go and see her.” He was held at Hampshire
County Jail for 12 hours before his daughter paid his
debt to secure his release at about 2:00 a.m. the next
day. The judge erred in ruling that Okoroafor could
pay, as state pension income is exempted from debtor
judgments under state law:
Judge: Have you paid the amount owed?
Mr. Okoroafor: No, I don’t even have the
money.
Judge: Have you retained a lawyer?
Mr. Okoroafor: I tried to. I came to the DA’s
office to get help with representation and
they said they don’t do any civil matters.
That the only thing they do is criminal. And
I went to the Clerk’s office and they said
the same – that they don’t help people with
small claims cases….

Judge: Are you employed?
Mr. Okoroafor: No, I am retired.
Judge: What is your source of income?
Mr. Okoroafor: My pension, that’s all…from
the Commonwealth of Massachusetts….
Judge: Do you own your own home?
Mr. Okoroafor: Yes, but it is shaky now….
My wife is in the hospital right now as we
speak…. Other expenses I have is to pay my
tithe in my church…10% of what I get.
Judge: Do you have a mortgage?
Mr. Okoroafor: Yes I have a mortgage…I pay
$1,100 [a month].
Judge: Do you have any other sources of
income?
Mr. Okoroafor: My wife gets Social Security.
Judge: You have ignored an order of the
court.… This court has made an order for
you to pay the money.
Mr. Okoroafor: And I didn’t have the ability
to pay that money.
Judge: Why?
Mr. Okoroafor: Because of my expenses,
which I have enumerated. I pay, my wife has
been, her health has been in jeopardy for a
long time and is always in the hospital, in
and out…. The medicine, the medication we
pay.
Judge: How much?
Mr. Okoroafor: On a monthly basis I would
say $200.… The other evidence that I have
is that, after paying all my bills like my
electric bill, my cable bill, and sewage bill,
I am left almost without anything…. I was
not served with any invitation to come to
a hearing…. I have done everything that I
could. And I have evidence to prove that
they have not sent me any hearing notice….
Judge: Your response to that denial cannot
be, “I refuse to pay,” sir. You will be taken
into custody for 30 days or until you pay
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51

the amount owed to this person. Take the
defendant into custody.
[Sound of handcuffs.]
Judge: I find by clear and convincing
evidence that he has an ability to pay…. I
find that he willfully refuses to pay. He
will be held in custody unless and until he
removes the contempt by paying the money
owed to the plaintiff in this case.
Mr. Okoroafor: My wife is in the hospital. I
need to go and see her.
Bailiff: It’s not going to happen unless you
pay.

In Nebraska, Ms. W,248 62, was arrested for
failure to appear in court over a $1,800 debt owed
to Heartland Construction for home repairs. Police
came to her apartment at 5:30 a.m. in April 2017
to arrest her on a warrant. The sheriff was doing a
sweep of outstanding warrants for public housing
tenants, and an outstanding warrant issued for her
arrest 15 years earlier came up. The warrant had
been issued in June 2002 for failing to appear at a
debtor’s exam. She lives in public housing, has no
car, and her only income is Social Security Disability
benefits (SSDI). The officers let her leave her
apartment and walk outside before handcuffing her.
She was transported to the jail, where she was booked,
fingerprinted, and photographed for a mug shot.
Bond was set at 10 percent of the debt. She says she
was incarcerated for almost five hours before a friend
bailed her out.
Credit Card and Other Consumer Debts
In Tennessee, Mr. B249 was Tasered three times
and bitten by a dog when he was arrested in October
2013 in connection with a credit card debt owed to
Discover Bank. Mr. B had received collection calls
about the debt years earlier, but he says he reached an
agreement with Discover and considered the matter
resolved long ago. His wife later testified that she had
opened the account and used the card without his
knowledge and did not tell him about the civil lawsuit

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American Civil Liberties Union

that was subsequently filed to collect the debt. A civil
warrant was issued for his arrest. After attempting to
serve the arrest warrant 22 times over about a month,
a Knox County sheriff’s deputy thought he saw Mr. B
walking on the driveway of his mother’s house, where
he had a workshop for his optical lens business. The
deputy called in a captain, sergeant, three deputies,
a K-9, and a helicopter as backup. The defendant’s
mother testified that five police cruisers were in her
driveway, three additional cruisers were next door,
and there were other unmarked cars parked in her
backyard. The sergeant arrived and asked Mr. B’s
mother for permission to enter, but she refused. Even
though they had no search warrant, she later testified
that the captain said that if she had probable cause,
she could go in and make an arrest for “evasion of
service, obstruction of justice.”
Several police officers entered the home and searched
her entire house. Not finding Mr. B, the officers set
up a full perimeter around the house. Mr. B says that
after the deputies made threatening statements to
his mother, he hid in the basement crawl space. He
recalls the sergeant came downstairs and said, “I’m
going to get you, you little shit.” The deputies sent
in a police dog. Mr. B says the dog bit his feet and
hands, latched on to his arm, and dragged him three
feet. Two deputies Tasered him three times in his leg,
chest, and arm, leaving him unable to breathe. Photos
of his injuries show four lacerations on his upper arm
and two large lacerations, puncture wounds, and
other abrasions on his ankles. In response to a civil
suit subsequently filed by Mr. B, the police claimed
he refused to show his hands and two officers then
used their Tasers. He was convicted of misdemeanor
obstructing and preventing service of process and
arrest and sentenced to six months’ probation and
10 days in jail, but the appeals court vacated the
convictions because his conduct amounted only to
avoiding civil process servers.250
A Nebraska woman who is unable to work due to a
disability had an arrest warrant issued against her
for a $1,500 debt to a local store. After her husband
lost his job—and their sole source of income—in a
downsizing at the medical center where he worked,

they struggled to make ends meet and they lost their
home in a foreclosure. She and her husband begged
the store to agree to a partial payment plan, but the
store put a lien on their home and pursued her arrest.
Her Legal Aid of Nebraska lawyer got the arrest
warrant squashed when the store’s attorney did not
appear in a subsequent court hearing.
After being pulled over for a traffic violation in 2012,
a pregnant woman in Colorado was arrested and
jailed on an outstanding arrest warrant for contempt
of court. The warrant was issued for failure to enter
interrogatories in a proceeding to collect a default
judgment for unpaid credit card debt. Her bond
was set at $5,806—the exact amount of the default
judgment against her plus interest. After she spent
the night in jail, she was presented before a court and
released on a personal recognizance bond.
In Illinois, Vivian Joy was jailed in 2011 after being
stopped for driving with a broken taillight. There was
an outstanding warrant for Joy’s arrest because she
had not appeared in court after Champaign Heights
Finance Corp. obtained a $2,200 default judgment
against her. Joy said she did not know about the
lawsuit or the judge’s order. She was handcuffed in
front of her children and jailed until she posted a
$120 bond. She said she could not afford to pay the
judgment because she is unemployed.
In Massachusetts, a capias warrant was issued for
the arrest of Ms. L251 for failure to appear in court
over a credit card debt she did not owe. She had not
received the notice to appear in court for a payment
review hearing in a small-claims debt collection case
brought by a debt buyer. Because she had missed
the court date, the court entered a default judgment
against her. She received a notice from the sheriff’s
office at her home informing her of the warrant for her
arrest and ordering her to turn herself in to the civil
court during the next small-claims session. When she
arrived in court on the morning of the session, she
was met by a constable from the sheriff’s office. After
gathering some information from her, he turned her
over to the debt collection attorney, who produced a
copy of the court’s agreement for judgment form for

her to sign. Because a default judgment was already
in place, the attorney had indicated on the form that
Ms. L had no ability to pay and asked Ms. L to sign.
Ms. L, a Vietnamese immigrant with little English
proficiency, tried to explain that it was not her credit
card, but she signed the document anyway. Ms. L had
missed the prior court dates because she had been
hospitalized due to serious medical problems, and
she was out of work due to her poor health. She was
limping and complaining of severe pain when she met
a Greater Boston Legal Services attorney who was
providing free legal services at the courthouse that
day. The attorney helped her to file a motion to vacate
the default judgment. If Ms. L had left after signing
that she had no ability to pay and had not contested
the debt that day, it would have made it more difficult
for her to convince a clerk later on that it was not her
debt. Ms. L won the motion, and ultimately the debt
buyer plaintiff dismissed the case.
Michael Flanagan was jailed in Nebraska over a
$326 overdraft debt he owed to a credit union. He
was never served notice of the hearing at which the
court granted default judgment against him. When
he missed a subsequent debtor’s exam scheduled
on a Friday in February 2017 because he was sick
and forgot about the court date, the court issued
a warrant for his arrest and set bail at $202. On
the following Monday, Flanagan realized he had
missed the hearing, called the courthouse to try to
reschedule and learned of the warrant. Afraid he
could be arrested at any moment, he recalls, “It made
my skin crawl that there’s a warrant for my arrest.
There’s a document out there that says ‘seize him’! I
just couldn’t handle it.”
Flanagan contacted the debt collector, who refused
to reschedule the hearing and told him he would have
to pay the debt in order to avoid jail. He had been
unemployed for six months and was living on food
stamps and “the grace of friends.” Flanagan said it
was “unbelievably stressful knowing that I had to pay
$202 that I can’t find the money for. I didn’t even have
something I could sell. I had nothing—no income, no
savings, not even pocket change.” He borrowed the
bail money and spent a week making calls in a futile
attempt to find a way to clear the warrant without
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53

being arrested. He tried paying the bail to the county
and the sheriff’s office, but both refused to accept
his payment. Officials at the Lancaster County
Sheriff’s office and the Department of Corrections
told Flanagan that his only options were to wait to
be arrested or to show up at the jail to be arrested.
He turned himself in to the jail and was handcuffed,
arrested, booked, and held while his bail payment
was processed. As part of the booking process he
was strip-searched and photographed for a mugshot.
After several hours in jail, he was released.
In the Commonwealth of the Northern Mariana
Islands, Mr. M252 was sentenced to 10 days in jail
for failing to make court-ordered payments toward a
debt he owed on a consumer line of credit from a bank.
The bank, Pacific Financial Consumer Corporation,
obtained a default judgment for $8,176 that included
a payment plan of $60 a month. Mr. M failed to make
any payments for eight months and was ordered to
appear at a hearing to show cause why he should not
be held in contempt of court and jailed. At the March
2005 hearing he appeared without a lawyer and
testified that he had not made payments because he
was unemployed for the first nine months after the
court had issued the judgment and had only recently
found a job that paid $3.50 an hour, a net income of
$248 every two weeks. He said he could not afford the
payment plan because he supported his girlfriend and
their four minor children. The trial court ruled that
he had the ability to comply with the court-ordered
payments, found him in contempt, and sentenced
him to 10 days in jail. The sentence was suspended
on the condition that he pay $30 per month until the
debt was paid in full. Mr. M appealed the order and
the Supreme Court of the Commonwealth of the
Northern Mariana Islands ruled that the trial court
had failed to advise Mr. M of his right to a lawyer and
vacated the contempt order.253
Auto Debts
Courts have issued arrest warrants for various auto
and transportation debts, including debts for car
repairs, towing services, auto loans, unpaid car rental
fees, fuel expenses, and subrogation claims owed to
auto insurance companies.
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American Civil Liberties Union

Ms. R254 was arrested by sheriff deputies at her Ohio
home while caring for her three-week-old baby. She
had not appeared in Bowling Green Municipal Court
for a debtor’s exam in connection with a judgment
entered against her in a lawsuit by Dr. Auto Care
for car repairs.255 Even though Ms. R had filed for
bankruptcy and therefore the proceedings should
have been automatically stayed, the creditor sought
the bench warrant from the court. The court granted
the request, issuing the warrant for contempt of court
for Ms. R’s failure to appear at the debtor’s exam.
When Ms. R appeared in court following her arrest,
the creditor’s attorney demanded payment, asked Ms.
R to propose a payment arrangement, and scheduled
her for a second debtor’s exam to be held just nine
days later. Ms. R sued the creditor for violating the
automatic stay imposed by her bankruptcy filing.
A Washington couple, Michael Gray and Nicole
Hart, were arrested and jailed overnight for missing
a hearing in a case to collect an auto loan deficiency
they owed to Zions First National Bank. When they
defaulted on the auto loan, the bank repossessed
their pickup truck and filed a lawsuit against them for
the balance they owed on the loan, $3,650.90, which
ballooned to $5,090.29 with interest and fees. After
nearly a full year of having their wages garnished to
pay down the debt, the couple filed for bankruptcy,
primarily because they were unable to pay back
this debt and feared further garnishment. They
missed a March 2016 supplemental proceeding—a
debt examination for the purposes of collecting the
judgment—and the Cowlitz County Superior Court
issued bench warrants for their arrest two weeks later,
setting bail at $1,000 each. The warrants and the
judge’s order granting the bench warrants were not
served on the couple, and the debt collector did not
even notify the couple that they had applied for and
obtained the warrants. Instead, two months later, in
May 2016, five sheriff’s deputies came to their house
one evening after 7:00 p.m. When Gray opened the
door, the deputies immediately pulled him out of the
house, handcuffed him on his lawn, and placed him
in the back of a squad car while they waited for his
wife to return home so that they could arrest her as
well. For over an hour, Gray sat helpless in a police

car outside his house, watching as his six-year-old
disabled son cried and ran in and out of their home.
When Hart arrived home, she was also arrested, and
the deputies informed her that they would have to
call Child Protective Services if she could not find
someone to watch their young son. Eventually their
older son, himself a minor, came home to watch the
six-year-old.
Gray endured a humiliating strip-search and Hart
underwent an invasive pat-down and search that
required the removal of her false teeth and underwire
bra. Both spent a night in jail before posting bail.
The entire time Gray and Hart were in jail, they had
no idea why they were there. The deputies never
informed them, and it was only just prior to their
arraignment hearing the next morning (which they
were forced to attend without lawyers) that they
discovered the arrest was associated with the debt
owed to the bank. Gray and Hart had to tell their
employers that they would have to miss work. Hart,
a clerk at the local Target, had to tell her employer
that she had been arrested. Once back at work a
few days later, Hart was required as part of her job
duties to serve several of the sheriff’s deputies and
correctional officers who had participated in her
arrest and incarceration. According to a lawsuit she
filed against the bank and the collection company,
each time she had to assist these law enforcement
officers, she had to relive the experience of being
jailed, and these instances have caused her to have an
emotional meltdown on the job.256
In Indiana, Mr. S,257 the owner of a concrete
company, was jailed in September 2009 for failure to
appear at a post-judgment proceeding for $4,024.88
he owed on an auto loan for his pickup truck. The loan
was owed to a subsidiary of American International
Group, the financial institution that received $122.8
billion in federal bailouts. He was arrested in front of
his four young children, strip-searched, sprayed for
lice, and jailed for two nights. He was released only
after agreeing to pay $1,500 to the loan company. He
says he did not know he had been sued.

Payday and Other High-Interest Loans
In Missouri, Ms. S258 was jailed for three days
for failure to appear in a case to collect involving
a high-interest $425 payday loan. The creditor,
Sunshine Title and Check Advance, sued and
obtained a judgment against her, and then requested
an “examination of judgment debtor.” Ms. S, the
single mother of a toddler, did not show up for the
examination, a court hearing at which a judge would
determine what assets the creditor could seize to
pay the debt. The payday lender asked for a body
attachment order to arrest Ms. S. The St. Louis
County circuit judge issued a body attachment,
setting bail at $1,250. Two weeks later, when Ms. S
learned that the St. Louis County police were looking
for her, she and her mother went to the police station,
where she was arrested. By then, the $425 debt had
ballooned to $855 with interest and legal fees. Ms. S
was required to post bail in cash and could not pay
through a bondsperson. Her mother had to borrow
the money to post the $1,250 bond to secure her
release, which was subsequently paid over to the
payday lender. “I had to get out or I’d lose my job,” Ms.
S., who works as a clerk, said. Of her three days in the
city jail, she said, “It was horrible…They tell you when
to wake up and they tell you to go to sleep. The beds
are hard.”
A few months later, Ms. S filed for bankruptcy. Her
bankruptcy petition revealed that she survived in
part on child support payments, an exempt source
of income that the payday lender couldn’t have
garnished. The petition also revealed that she did not
own a home and did not have any assets the payday
company could have seized by law. Her vehicle was
subject to a car title loan and even her daughter’s
bedroom furniture was purchased on credit and was
subject to repossession by the lender.259
Ms. E260 was mistakenly jailed for two nights for
failure to appear in court over a high-interest payday
loan in Louisiana. In May 2013, Ms. E was arrested
by sheriff’s deputies when she visited a prisoner at
Caddo Correctional Center in Shreveport and the
law enforcement officers there claimed she had an
outstanding warrant from 2008. However, she had
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55

already paid the debt in full and the warrant had been
recalled a year and a half before her arrest. The night
after her arrest, she was transferred to Shreveport
City Jail because the warrant originated from
Shreveport City Court. After two nights in jail, she
was booked with contempt of court and released on
bond. She was provided with a summons to appear
in court. She retained counsel and arrived at the
scheduled time, only to discover that she was not on
the court’s docket. Eventually, the court uncovered
minutes from a civil case filed in 2006 that indicated
that a warrant had been issued following Ms. E’s
failure to appear at judgment debtor exam. Ms. E
owed $485.23 to Advantage Finance Corporation, a
payday lender. She had already paid back $122.70
toward the principal, but the lender had sued her and
her husband in 2006 and obtained a default judgment
against them for the remaining debt and for attorney
fees fixed at $200. After Ms. E and her husband failed
to appear at a judgment debtor rule hearing, the court
issued a bench warrant for her arrest and set bond
at $200. Throughout 2007 and 2008, the creditor’s
lawyers filed a number of letters into the record to
reset the bench warrant, and by October 2011 she
had paid the debt in full and the creditor’s attorney
recalled the bench warrant. It appears the warrant
database had not been properly updated, leading to
her arrest in 2013.261
A Maryland woman was ordered arrested only a year
after taking out a high-interest check loan. The lender,
Mariner Finance LLC, sends out valid checks in the
mail offering quick cash. By signing the back of the
check and cashing it, the consumer accepts the loan
and all the conditions outlined in the accompanying
letter, including a high interest rate just below the
legal maximum in Maryland. The finance company
sued her because she did not make payments on the
loan. After getting a default judgment for $1,250, it
sent her written interrogatories asking about her
income and assets and when she did not answer, a
hearing was held to show cause why she should not
be held in contempt. She missed that hearing. In July
2014, only 13 months after she signed the check, the
court issued a warrant—called a body attachment—
ordering police to arrest her.
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American Civil Liberties Union

Case Studies: Abuses by Check
Collection Companies in
Partnerships With Prosecutors
The ACLU documented cases of elderly retirees on
fixed incomes, people with disabilities subsisting on
disability benefits, struggling single parents, and
college students who had unintentionally written
a check against insufficient funds and received
threatening letters purporting to be from prosecutors
but that were sent by private check collection
companies. The cases we documented in California,
Florida, Illinois, Pennsylvania, and Washington
include the following:
Ms. P,262 a wheelchair-bound retiree living on a
modest fixed income in a senior living facility in
Washington, bounced a check for $108.10 that she
wrote to the local Walmart store for household goods.
She received a threatening letter on the letterhead of
the Clallam County Prosecuting Attorney demanding
she pay $321.85 and take a financial training course
in order to avoid criminal prosecution.263 “When I
first received the letter that I thought came from the
prosecutor, I was frightened about having to go to
court, and worried that police would come to arrest
me,” said Ms. P. “When I later learned that the letter
was from a debt collector, not the prosecutor, I was
very disappointed in our county officials.”264 The
letter she received said, in part:
WARNING OF CRIMINAL CHARGES
The Prosecuting Attorney’s Office has
received a complaint against you for issuing
a worthless check(s)…. Under Washington
Statutes, this can constitute criminal intent
and a Warrant for your arrest can be issued.
It is still possible to avoid a CRIMINAL
CONVICTION

Ms. C,265 a disabled retiree living in Washington
on a modest fixed income with her son and his wife,
inadvertently bounced an $80.43 check to her local
Safeway store for household goods. Ms. C received
a letter purporting to be from the Grant County

Prosecuting Attorney, threatening to criminally
prosecute her if she did not pay $211.43 and complete
a financial training course. Unaware that the letter
had actually been sent by Bounceback, Inc., she paid
the $211.43. Ms. C goes to doctors’ appointments at
least five times a month because of her disabilities
and was unable to attend the scheduled financial
training class. According to a lawsuit she filed
against the company, Bounceback nonetheless
charged her $145 for the class but never bothered to
reschedule it.
An elderly Pennsylvania woman who wrote a check
for $27 to Kmart that bounced was told she would
have to pay fees of $72 to avoid prosecution, plus
another $170 for a required financial accountability
class.266
An elderly man in Pennsylvania, was sent a
threatening letter signed by the Beaver County
District Attorney over a bounced check for $10,
alleging that he had engaged in “criminal activity” by
“issuing a fraudulent check.” His granddaughter who
was handling his finances received the letter, though
it was addressed her grandfather. A $10 check she
had written for one of her grandfather’s prescriptions
had bounced because her grandfather’s nursing home
had taken an unexpected payment from his checking
account on the same day. She had already repaid the
$10 and the pharmacy’s $35 returned-check fee when
she received the letter on the prosecutor’s letterhead.
A subsequent letter sent weeks later bore the heading,
“Warning of Criminal Charges.”267
A physically disabled single mother in California
who also supports her elderly father, wrote a check
for $165.87 to the local Safeway market for groceries
for her family. The check did not initially clear,
even though she had overdraft protection for the
account, but it cleared 13 days later when it was
redeposited. Nonetheless, she received a letter on
Placer County District Attorney letterhead accusing
her of committing a crime punishable by up to a year
in jail and informing her she could avoid jail only if
she attended a financial accountability class and paid
a total of $407.12, including $190 for the class and

other fees. Even though she had paid the check and
provided written proof that the check had cleared, she
received two more threatening letters on the official
letterhead of the DA’s office and bearing the district
attorney’s signature.268
A Pennsylvania woman wrote checks for $23.31
and $36 that bounced because her employer had
mailed her paycheck rather than deposit it directly
in her bank account. She received a threatening
letter that purported to be from the district attorney,
demanding $319.91 to avoid criminal prosecution.
In reality, the letter was from National Corrective
Group, Inc. She could not afford to pay the full
amount demanded; she called the private company,
believing she was speaking with someone from the
district attorney’s office, and arranged to pay in two
installments.269
A Florida man who bounced a $14 check at a drug
store, received a letter and voicemail purporting to be
from the state’s attorney, demanding more than $200
in fees to avoid prosecution, including a $160 fee for
a financial management class.270 He ultimately paid
$295 in order to avoid criminal prosecution.
A college student in California who bounced a
$92 check she had written to her school bookstore,
received a letter telling her she had committed a
crime and faced up to a year in jail and a $2,500
fine unless she paid the $92 plus $215 in fees and
scheduled a financial accountability class within 10
days. Scared and unaware she had bounced the check
until she received the threatening letter with the seal
of the Santa Barbara County’s District Attorney, she
paid the fees and took the five-hour class in order
to avoid prosecution. She had no idea that she was
dealing with a private company and that the district
attorney’s office explicitly did not prosecute bounced
checks under $100 as a matter of policy.271
An elderly retiree in Illinois who bounced a $46.49
check at a supermarket where she had been a
customer since 1971, received a letter purporting
to be from the Cook’s County district attorney

A Pound of Flesh: The Criminalization of Private Debt

57

threatening her with criminal prosecution and jail if
she did not pay $271.49.272
An elderly woman in California with significant
medical problems and a small monthly income
who bounced checks for $11.13 to a grocery store
and $26.62 to a tobacco store, was threatened with
prosecution if she did not pay up, plus fees and $125
for a financial accountability class. Believing she
faced arrest and jail if she did not comply, she paid
$262.95 in restitution and fees. Her physical and
medical conditions made it difficult for her to attend
the hours-long class, and she was instructed by the
check collection company that she could complete
a home study course only if she produced a doctor’s
note. She had to travel to her doctor and pay for a note
excusing her from attending the class in person.273
Ms. O,274 a single mother in California living on
disability benefits, bounced a check for $91 at a
grocery store. She received a letter purporting to be
from the district attorney and demanding $333.51,
including $175 for a financial accountability class, to
avoid criminal prosecution and up to one year in jail.
In reality the letter was from National Corrective
Group, Inc. Ms. O had accidentally bounced the
check and tried to pay the grocery store a few days
later when she realized she had overdrawn her
account. The grocery store had already sent the debt
into collections and was unable to accept payment
under the terms of the check diversion agreement
with National Corrective Group, Inc. Unable to
work because of a leg injury and unable to afford the
surgery to repair her injury without health insurance,
Ms. O could not afford the financial accountability
class and offered to repay the $91 and a $50 fee, but
she continued to receive the threatening letters.275
Ms. S,276 a California woman who was pregnant with
her sixth child and unable to work because of her
pregnancy, was threatened with criminal prosecution
for two bounced checks. Ms. S had a checking account
with overdraft protection, and although she tried to
keep accurate track of her account, she sometimes
made mistakes. She overdrew the account when she
made an ATM withdrawal, and she began getting
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American Civil Liberties Union

overdraft charges of $20 every time she wrote a check,
used her debit card, or made an ATM withdrawal. She
says this had a snowball effect, leaving the checking
account continually overdrawn, even though she
made deposits. In one month the overdraft protection
charges alone totaled $560, and she said these
constant charges made it difficult to catch up on
her family’s bills. That month she wrote a check to
FoodMaxx in Ukiah, California, for $83.41 and a
check to Walmart for $69.26, both to purchase food
and other things for her family. The bank rejected
these checks because there was not enough money in
her checking account to cover the checks when her
bank received them.
Four months later, she began receiving letters from
the “Check Restitution/Prosecution Program” of the
Mendocino County District Attorney, the Mendocino
County Sheriff, and the Mendocino County Chief of
Police. The letters stated that she had been accused of
a crime, specifically “a violation of Penal Code Section
476a (Passing a worthless check),” that she was being
criminally investigated, and that to stop the criminal
investigation she had to pay the check amount, a bank
charge of $5 (for the Foodmaxx check) and $10 (for
the Walmart check), a $35 administrative fee for each
check, and an $85 diversion fee. A subsequent letter
she received stated:
FINAL NOTICE PRIOR TO REFERRAL
FOR
POSSIBLE ARREST WARRANT
She said, “I concluded that I would be arrested and
prosecuted if I did not do what I was being told to do
in the letters. I was in a panic. I had never been in
trouble with the law before. I did not know that I had
committed a crime, but I assumed that I must be in a
lot of trouble if I was getting a letter from the district
attorney stating that I could be arrested.”277
Ms. S called the phone number listed on the letters
and spoke with a woman whom she thought was
in the district attorney’s office, who reinforced the
urgency of her situation. “I was so scared that I said
that I would try to pay, even though we did not have

enough money to pay the checks and the fees being
demanded,” she said. She continued to receive letters
from the “district attorney,” but her family’s financial
situation continued to worsen. Ms. S said “there was
nothing I could do but just hope that I would not be
arrested.”
While driving in Ukiah with her children, Ms. S was
pulled over by a police officer. “I was terrified,” she
said. “I thought I was going to be arrested for the
checks in the letters, and that my children were going
to see me get handcuffed and taken away. I was giving
my children instructions on calling their father to
come pick them up.” When she spoke with the officer
she found out that she was just being warned for not
coming to a complete stop at an intersection.
During this period, her family’s financial stability
was in a downward spiral. Her husband had been
laid off from a good-paying job, and he was not able
to find steady employment that paid the same wages
and benefits. Although he continued to work, he was
periodically laid off, and he was not able to earn as
much money as they needed to support their family.
They borrowed money from family members to pay
bills, but they had fallen so far behind that it was
impossible to catch up. They had debts they could
not repay, including thousands of dollars in unpaid
medical bills.
Finally, she and her husband consulted a bankruptcy
attorney who informed them that the letters were
from a private company, not from the district
attorney, and that the real district attorney had
not investigated Ms. S or considered filing charges
against her. Even after declaring bankruptcy,
she received a letter from the “District Attorney
Restitution/Prosecution Program.” The letter
stated that unless the checks had been dishonored
by the bank as a result of receiving notice of their
bankruptcy, she still had to pay to avoid “criminal
sanctions.”

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59

Appendix II: Federal and State Laws Authorizing
the Arrest and Jailing of Debtors

While contempt power is “inherent in all courts,”278
federal and state law expressly authorizes debtors to
be arrested and incarcerated for contempt of court in
certain instances.
Under federal law, Federal Rules of Civil Procedure
37(b) and 45(g) allow federal courts to hold
individuals in contempt for failing to cooperate with
discovery or obey subpoenas,279 and Rule 70(e) allows
contempt to be used against disobedient parties in
enforcing a judgment.280 Federal bankruptcy courts
also possess contempt power281 and can order the
marshal or other authority to bring the debtor before
the court.282 In certain situations, this includes
placing the debtor into custody to ensure compliance
with court proceedings.283
In Alaska, a judgment creditor may obtain
discovery from a judgment debtor using proceedings
supplementary to and in aid of execution.284 Under
Alaska discovery rules, a party that fails to appear or
submit an interrogatory may be held in contempt of
court.285 In situations of contempt, judges can order
the accused party to show cause or shall issue an
arrest warrant.286
In Arizona, a judgment creditor can request at any
time an “order for appearance of debtor,” whereby
the court will issue a subpoena compelling the
judgment debtor to appear for deposition upon
oral examination to answer questions about their
property.287 Compliance “may be enforced by the
court by the power to punish for contempt.”288 In
cases of warrants issued for failure to appear at a
judgment debtor exam, bonds are typically set at
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American Civil Liberties Union

$250 or the amount of the judgment, depending on
the court.
In Arkansas, a judgment creditor may obtain
discovery from the judgment debtor pursuant
to Arkansas’ discovery proceedings.289 Failure to
comply with discovery orders, including failure to
appear or failure to serve answers or objections to
interrogatories, may be considered a contempt of
court. Further, the court can require the disobedient
party “to pay the reasonable expenses, including
attorney’s fees, caused by the failure,” unless the
court finds that the failure was substantially justified
or that other circumstances make an award of
expenses unjust.”290
In California, a debtor may be held in contempt for
failure to appear for a judgment debtor examination.
If the failure to appear was without good cause, the
debtor may have to pay attorney’s fees in addition
to the judgment amount.291 Following the contempt
order, superior court judges may issue civil bench
warrants. Debtors are expected to go to the court to
contest the warrant and pay bail.292
In Colorado, if the judgment debtor fails to appear,
the court issues a bench warrant commanding the
local sheriff to arrest and bring the judgment debtor
before the court.293
In Connecticut, a judgment creditor may obtain
discovery from the judgment debtor, starting with
interrogatories. If the judgment debtor does not reply
to an interrogatory within 30 days, the judgment

creditor may move for supplemental discovery orders,
including an order for compliance and an order for
examination. These orders contain a notice that
failure to comply may subject the debtor to contempt
of court.294
In Delaware, in aid of judgment or execution,
judgment creditors may take discovery by deposition,
interrogatories and requests for production.295
Failure to comply with such discovery may lead to the
judgment debtor being held in contempt of court.296
The penalty for civil contempt in Delaware includes
a fine not exceeding $100 or imprisonment not
exceeding 170 days.297
In Florida, judgment creditors may request the court
order the judgment debtor to fill out a disclosure form
or comply with other forms of discovery.298 Failure to
appear or comply with an order may be considered a
contempt of the court.299
In Georgia, in aid of the judgment or execution,
a judgment creditor may examine any person,
including via depositions or interrogatories, and may
compel the production of documents.300 If the debtor
fails to comply, the court may make such orders as
are just and the debtor must pay reasonable expenses,
including attorney’s fees, in addition to the judgment
debt.301
In Hawaii, judgment creditors, in proceedings
on and in aid of execution, may obtain discovery
pursuant to the Hawaii Rules of Civil Procedure.302
These rules include contempt in cases where parties
fail to obey a discovery order.303 Further, if a court
suspects that a debtor has disposed of or otherwise
concealed property, the court may compel attendance
for examination and may punish a “willful hindrance
to, or obstruction or disobedience of, any order of the
court as contempt.”304 A warrant of commitment may
be issued against contemnors who refuse to comply
with discovery proceedings.305
In Idaho, the court requires creditors to use writs
of attachment to seize non-exempt assets or garnish
a debtor’s wages or bank account.306 When such

efforts are unsuccessful, the creditor can pursue in
personam remedies starting with a debtor’s exam.
Failure to appear at the debtor’s exam may result in
the court issuing a writ of bodily attachment.307 Some
judges have recently started requiring creditors
to file a motion to compel before issuing the writ of
bodily attachment.
In Illinois, judgment creditors are entitled to
prosecute “supplementary proceedings” and to have
a judgment debtor examined in court for purposes
of discovering property and assets, with arrest and
imprisonment as punishments for failure to appear.308
Illinois’ 2012 Debtors’ Rights Act requires courts to
send two notifications to debtors before issuing an
arrest warrant. Prior to its enactment, some county
courts issued warrants immediately upon a debtor’s
failure to appear, while others required a rule to show
cause served on the debtor before warrants could be
issued.309
In Indiana, debtors can be ordered to appear before
the court to answer as to non-exempt property
subject to execution or proceedings supplemental
to execution.310 Failure to appear may result in
contempt. In such cases, courts can issue writs
of attachment, which direct the sheriff to take the
debtors into custody.311 Incarcerated debtors must be
brought before the court that issued the writ within
48 hours, excluding weekends and holidays.312 Courts
usually set a cash-only bond in these cases.
In Iowa, debtors that had been served with notice but
fail to appear in proceedings auxiliary to execution or
fail to make full answers to interrogatories are guilty
of contempt and “may be arrested and imprisoned
until the debtor complies with the requirements of the
law in this respect.”313
In Kansas, the court may issue a bench warrant
for contempt of court if a debtor fails to appear for a
proceeding in aid of execution of a judgment against
them.314
In Kentucky, after an execution of fieri farcias (a
judgment), supplemental proceedings may include
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61

“full and explicit discoveries” which are enforced
by a process of contempt.315 Such supplemental
proceedings include examinations, and in cases
where debtors fail to appear, courts “may as in cases
of contempt punish a disobedience.”316
In Louisiana, the judgment creditor in aid of
execution of the judgment may examine the judgment
debtor and their “books, papers or documents.”317
If a judgment debtor refuses to appear for an
examination or refuses to answer a question held
pertinent by the court, the judgment debtor may be
punished for contempt.318
In Maine, if a judgment debtor fails to appear at a
disclosure hearing, the judgment creditor decides the
next steps. The creditor can state that it is unaware
of infirmity, disability, or good cause preventing
the appearance of the debtor and request that the
court issue a civil order of arrest. Alternatively, the
creditor can request that the court issue an order
of appearance for further disclosure proceedings
or file a motion for contempt for failure to appear. If
the debtor fails to appear at the contempt hearing,
the court issues a civil order of arrest.319 When a
debtor is arrested pursuant to such a civil order, the
debtor is taken to court for the disclosure hearing. If
the hearing cannot be held that day, the individual
is released on a personal recognizance bond. It
is a crime under Maine law to fail to appear at a
disclosure or contempt hearing after being released
upon personal recognizance.320
In Maryland, creditors may obtain discovery to
aid in enforcement of a money judgment by use of
interrogatories or by examination before a judge.
Creditors may obtain additional examinations once
a year, or upon a showing of good cause.321 If a debtor
fails to appear at an oral examination, the creditor
can file for a show case hearing. If the debtor fails
to appear at this hearing, the creditor may request
the court issue an attachment for contempt, which
directs a peace officer to place the debtor under arrest
and deliver the debtor under bond.322

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American Civil Liberties Union

In Massachusetts, courts issue capias warrants for
debtors who fail to appear at payment hearings. If a
debtor who has made an out-of-court agreement with
the creditor or debt collector has stopped paying and
fails to appear for a payment review hearing, then
the court may issue a capias warrant for the debtor’s
arrest. A capias warrant is issued after a judgment
has been obtained in a civil suit and the creditor then
files an action for Supplementary Process where a
sheriff serves a “summons to judgment debtor” to
appear at court and the debtor fails to appear on the
appointed date. In such cases, the creditor must
give the capias to a sheriff or constable with a fee of
$300 to have the debtor arrested; this fee can later be
recovered from the defendant in court. This contempt
of court is punishable by fine or by imprisonment
in the common jail for not more than 30 days.323
The debtor is to be discharged from custody upon
payment in full to the creditor, including the costs
of the proceedings, or upon agreement of a payment
plan bond for the amount due to be paid within 60
days or within a time allowed by the court.324
In Michigan, if a debtor fails to appear at a debtor’s
exam, some courts will issue a bench warrant, while
others will require the defendant to appear at a show
cause hearing. If the debtor fails to appear at this
hearing, the court will issue a bench warrant for
contempt of court. Some judges set the bond at the
amount of the judgment or more, while other judges
set the bond at $500.325
In Minnesota, judgment creditors can request
that the court order the judgment debtor to fill out a
court form about the nature, amount, identity, and
locations of all the debtor’s assets, liabilities, and
personal earnings. Failure to complete the form and
mail it to the creditor within 10 days may result in a
citation for civil contempt of court. Cash bail posted
as a result of the citation may be ordered payable
to the creditor to satisfy the judgment.326 In cases
of consumer debt for personal, family, or household
purposes, contempt for failure to comply with the
disclosure requirement is set at $50 and must be
returned to the judgment debtor.327

In Mississippi, a judgment creditor can examine
the judgment debtor, his books, papers or documents
to aid in the satisfaction a judgment of more than
$100.328 Further, judgment creditors may utilize
discovery procedures as set forth in the Mississippi
Rules of Civil Procedure.329 According to these Rules,
individuals who fail to appear or fail to serve answers
to interrogatories may be held in contempt.330 In
cases of contempt, the state courts have the power to
fine contemnors up to $100 or incarcerate them for no
longer than 30 days.331
In Missouri, judgment creditors may petition the
court to enter an order requiring the judgment debtor
to appear and be examined under oath concerning
their means to satisfy the judgment.332 Failure to
appear at the examination may result in contempt.333
In Montana, judgment creditors are entitled, at
any time, to order from a judge that judgment
debtors appear inside the county where they
reside and answer regarding their property.334
Judgment debtors that fail to comply with discovery
proceedings may be held in contempt.335 A court
may issue a warrant of commitment against a
contemnor, which may include incarceration, a fine
of no more than $500, or both, until the contemnor
has performed the act.336 A person arrested for a
contempt not committed in the immediate view of
a judge does have the opportunity to be heard at
a hearing.337 Additionally, if a debtor is deemed to
be unjustly refusing to apply property towards the
satisfaction of the judgment, they may be arrested
and committed to prison.338
In Nebraska, a judgment creditor is entitled at any
time to an order requiring the judgment debtor to
appear and answer questions about their finances.339
A judge may preemptively issue a warrant for the
arrest and jailing of the debtor if “there is danger of
the debtor leaving the state or concealing himself to
avoid examination.”340

appear at an examination. If a debtor fails to appear,
the court can hold that person in contempt and issue a
bench warrant.341
In New Hampshire, according to the court rules,
judgment creditors can obtain discovery in aid of the
judgment or its execution.342 Additionally, following
the court’s rendition of a judgment, the court can
order the defendant to make periodic payments
as the court deems appropriate. Failure to make
such periodic payments constitutes civil contempt,
absence good cause.343 Courts can issue attachments
for contempt at any time upon evidence of a debtor’s
violation of an order and parties may be arrested
upon order of the court.344
In New Jersey, in aid of judgment or execution, a
judgment creditor may examine the judgment debtor
pursuant to discovery procedures.345 If a judgment
debtor fails to obey an order for discovery, the
judgment debtor can file proceedings supported
by an affidavit or certification directing that if the
judgment debtor fails to appear in court or return the
required answers, he shall be arrested and confined
to the county jail until he complies.346 If the judgment
debtor fails to comply, the court will issue an arrest
warrant.347 If the warrant for arrest is not executed
within 24 months, the warrant shall be deemed to
have expired.348
In New York, judgment debtors may be served with
subpoenas requiring attendance at depositions, the
production of books or papers, or the completion
of information subpoenas. Judgment creditors
are allowed to submit requests for information
subpoenas only if they have a reasonable belief
that the debtor has information that will assist the
creditor in collecting the judgment. Permission by
the court is required before creditors can compel
debtors to appear at a deposition for a second time in
the same year.349 Failure to comply with a subpoena
is punishable by contempt of court, and the court
may issue a warrant directing the sheriff to bring the
individual to court.350

In Nevada, a judgment creditor is entitled at any
time to an order requiring the judgment debtor to
A Pound of Flesh: The Criminalization of Private Debt

63

In North Carolina, judgment debtors who fail to
appear at hearings are directed to appear at a show
cause hearing. Failure to appear at this hearing may
result in civil contempt.351
In Ohio, failure to comply with a debtor examination,
known as proceedings in aid of execution, may be
punished as contempt of court.352
In Oklahoma, a judgment creditor can request at
any time that the court order the judgment debtor to
appear and answer questions about their property,
income, or liabilities. A judgment creditor’s attorney
at any time may also serve interrogatories, requests
for admissions, or requests for production of
documents from the judgment debtor. If the debtor
fails to appear, the judge may authorize either a
contempt citation or bench warrant. The debtor is
required to pay the cost of service and attorney’s fees,
up to $300 per calendar year.353 If a bench warrant
or body attachment is issued, the bond made by the
debtor is disbursed to the creditor, not the state.354
In Oregon, a judgment creditor at any time can file
a motion to obtain an order requiring the judgment
debtor to appear before the court to answer questions
about the debtor’s property.355 A judgment creditor
may also at any time serve written interrogatories
on a debtor regarding that person’s financial affairs.
Failure to answer the interrogatories results in
contempt of court.356
In Pennsylvania, a creditor at any time may
take testimony via oral examination or written
interrogatories from the debtor. All reasonable
expenses in connection with this discovery may be
charged to the debtor.357 Failure to appear at such
a hearing may result in the court issuing a bench
warrant for the arrest of the debtor.358
In Rhode Island, court clerks begin supplementary
proceedings in aid of execution of the judgment by
issuing citations that require debtors to appear. At
these citation hearings, judgment creditors make
inquiries into judgment debtors’ financial ability,
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American Civil Liberties Union

including assets, income, and other circumstances.
A judge may issue a civil body attachment against a
judgment debtor who fails to appear.359
In South Carolina, judgment creditors can use
proceedings supplementary to and in aid of a
judgment, including examination of the debtor, in
the manner provided in the South Carolina Rules
of Civil Procedure.360 A court may hold a judgment
debtor in contempt following failure to attend such
an examination or answer an interrogatory.361
Civil contempt may result in the commitment of
the individual, although in cases of the inability
to perform the act in question or the inability to
endure imprisonment, the court may discharge the
individual from incarceration.362 Additionally, if a
judge is satisfied that a judgment debtor may leave
the state or that he is unjustly refusing to apply
property to the judgment, he may issue an arrest
warrant.363 Although South Carolina limits arrests
in civil actions,364 these limitations do not apply to
proceedings for contempt.365
In Tennessee, judgment creditors may utilize
discovery in aid of execution.366 A debtor who fails to
comply with discovery may have to pay reasonable
expenses in addition to the judgment debt, and arrest
is an available remedy for securing satisfaction of the
judgment.367
In Texas, courts can utilize contempt proceedings to
enforce an order for debtors to turn over property to
satisfy a judgment.368
In Utah, the court may conduct hearings as
necessary to identify and apply property toward the
satisfaction of the judgment or order.369 The court
may issue bench warrants for debtors who fail to
appear at such hearings. In Washington County in
Utah, bail is typically set at $250-$500 dollars, and
jailing for contempt can be up to 30 days.370
In Vermont, judgment creditors that won judgments
in small claims court may file a motion to hold
judgment debtors that fail to comply with payment
orders following a financial disclosure hearing in civil

contempt.37136 If a judgment debtor fails to appear at
the hearing on the motion for civil contempt, they
may be held in contempt.37237 Civil contemnors may be
incarcerated.37338
In Virginia, execution creditors may request
that debtors appear before the court to answer
interrogatories.374 If the debtor fails to appear or
answer, the court may issue a capias directing
the sheriff to deliver that person to the court. The
individual may be incarcerated until answers are
given or the conveyance demanded is made.375
In Washington, a judge may order the sheriff to
arrest a judgment debtor who fails to appear at a
scheduled examination. The debtor may be jailed
until bond is posted or the debtor is brought to
court.376

In the Commonwealth of Puerto Rico,
judgment creditors may initiate supplementary
procedures, including oral examination and written
interrogatories, against the judgment debtor.386
The court may compel enforcement with such
proceedings by its power of civil contempt.387
In Washington, D.C., a judgment creditor can
initiate proceedings supplementary to and in aid
of a judgment, including oral examination and the
production of papers, records, or other documents.
If the judgment debtor fails to appear, the judgment
creditor may request that a bench warrant be issued
for the person’s arrest.388

In Wisconsin, judgment debtors are required
to execute disclosure statements with financial
information to the judgment creditor.377 Debtors may
also be examined under oath and compelled to answer
as to property.378 Failure to appear or comply, except
in cases involving consumer credit transactions,379
may result in the court issuing civil body attachments
against debtors.380 Manitowoc County in Wisconsin
allows plaintiffs to seek the issuance of bench
warrants against judgment debtors who fail to appear
for supplemental examinations or fail to submit
disclosure statements.381
In the Commonwealth of the Northern Mariana
Islands, a judgment creditor may utilize proceedings
supplementary to and in aid of execution of a
judgment.382 After an oral or other examination,
the court makes an order in aid of judgment “as is
just.”383 This often occurs in the form of court-ordered
installment plans. A debtor who fails to appear or
answer a question after being directed to do so by
the court may be considered in contempt of court.384
If a debtor fails to comply with an order in aid of
judgment and after notice to show cause, the debtor
is committed to jail until the debtor complies with the
order or serves for a period as fixed by the court, but
not more than six months.385
A Pound of Flesh: The Criminalization of Private Debt

65

Appendix III: Documents
Indiana warrant in case to collect ambulance fee

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American Civil Liberties Union

Kansas sample bench warrant form

(Revised 7/05)

File Stamp Date
Case Number ______
Prepared by:
Filer’s name, SC#
Filer’s address
Filer’s phone number
{Filer’s fax phone number}
{Filer’s e-mail address}
Attorney for Plaintiff
In The District Court of ______ County, Kansas
Plaintiff’s name

Plaintiff

vs.
Defendant’s name
Defendant’s address

Defendant

Case No. ______

Pursuant to Chapter 61 of
Kansas Statutes Annotated
BENCH WARRANT
To the Sheriff of __________ County, or any other law enforcement officer in the state of Kansas:
You are hereby commanded to arrest and bring before this Court the person,
_______________, judgment debtor herein. Said person is to be brought before this Court for failure
to appear as directed by this Court on ________________, ______, and to show cause, if any, why
__________________________ should not be found in contempt of court. Bond for the release of
__________________________ pending appearance before this Court is set at $______.
Identifiers:
______________________________
Judge of the District Court
WARRANT RETURN
Received this writ on ______________________, _______, at __________ o’clock __.m. and on
_____________________, _________, executed the same by arresting the within named
_________________________ and

(1) holding him/her in custody under the same; whereupon he/she entered into a recognizance for
his/her own appearance as required by law, to answer to the within named charge which
recognizance is herewith returned;
(2) have committed him/her to the jail of ____________ County.
___________________________________
Sheriff
___________________________________
Deputy

A Pound of Flesh: The Criminalization of Private Debt

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Massachusetts capias arrest notice from sheriff

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American Civil Liberties Union

Massachusetts capias arrest warrant letter from constable

A Pound of Flesh: The Criminalization of Private Debt

69

Massachusetts capias arrest warrant letter from constable (continued)

70

American Civil Liberties Union

Sample warrant of arrest letter from Superior Court of California Marin County

A Pound of Flesh: The Criminalization of Private Debt

71

Massachusetts constable letter threatening debtor

72

American Civil Liberties Union

Onandaga County District Attorney / Bounceback letter

A Pound of Flesh: The Criminalization of Private Debt

73

Onandaga County District Attorney / Bounceback letter (continued)

74

American Civil Liberties Union

Yakima County District Attorney / Bounceback letter

A Pound of Flesh: The Criminalization of Private Debt

75

Yakima County District Attorney / Bounceback letter (continued)

76

American Civil Liberties Union

Yakima County District Attorney / Bounceback letter (continued)

A Pound of Flesh: The Criminalization of Private Debt

77

Yakima County District Attorney / Bounceback letter (continued)

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American Civil Liberties Union

Yakima County District Attorney / Bounceback letter (continued)

A Pound of Flesh: The Criminalization of Private Debt

79

Endnotes

1. 	

Jailing for unpaid child support; income taxes; or fines, fees, and
restitution imposed for criminal offenses or civil infractions,
including traffic tickets, are outside the scope of this report.
“Fees” include courts costs, state and local assessments, and
surcharges intended to help fund the justice system, such
as fees for jail booking, diversion programs, public defender
applications, drug and DNA testing, bail investigation, public
defender recoupment, jail per-diems, and probation. See, e.g.,
American Civil Liberties Union (ACLU), In for a Penny: The Rise
of America’s New Debtors’ Prisons (2010), available at
https://www.aclu.org/sites/default/files/field_document/
InForAPenny_web.pdf; Alicia Bannon, Mitali Nagrecha, Rebekah
Diller, Criminal Justice Dept: A Barrier to Reentry (2010),
available at http://www.brennancenter.org/sites/default/files/
legacy/Fees%20and%20Fines%20FINAL.pdf; Guilty and Charged
Investigative Series, National Public Radio (May 2014), available
at http://www.npr.org/series/313986316/guilty-and-charged;
Alexandra Bastien, Policy Link, Ending the Debt Trap: Strategies
to Stop the Abuse of Court-Imposed Fines and Fees (March 28,
2017), available at http://www.policylink.org/sites/default/files/
ending-the-debt-trap-03-28-17.pdf; Eli Hager, Debtors’ Prisons,
Then and Now: FAQ, Marshall Project (February 24, 2015),
available at https://www.themarshallproject.org/2015/02/24/
debtors-prisons-then-and-now-faq#.oXAE7D3Se.

2. 	

Consumer Financial Protection Bureau, Consumer Experiences
with Debt Collection: Findings from the CFPB’s Survey of
Consumer Views on Debt (2017), available at http://files
.consumerfinance.gov/f/documents/201701_cfpb_DebtCollection-Survey-Report.pdf; Press Release, Consumer
Financial Protection Bureau, “CFPB Survey Finds Over One-InFour Consumers Contacted by Debt Collectors Feel Threatened”
(Jan. 12, 2017), available at https://www.consumerfinance.gov/
about-us/newsroom/cfpb-survey-finds-over-one-four-consumerscontacted-debt-collectors-feel-threatened/.

3. 	

Fed. Trade Comm’n, Repairing A Broken System: Protecting
Consumers in Debt Collection Litigation and Arbitration 5 (July
2010), available at https://www.ftc.gov/sites/default/files/
documents/reports/federal-trade-commission-bureau-consumerprotection-staff-report-repairing-broken-system-protecting/
debtcollectionreport.pdf.

4. 	

Paul Kiel, So Sue Them: What We’ve Learned About the Debt
Collection Lawsuit Machine, ProPublica, May 5, 2016, available
at https://www.propublica.org/article/so-sue-them-what-wevelearned-about-the-debt-collection-lawsuit-machine.

80

American Civil Liberties Union

5. 	

Jorge Ramos, Rob Wile, Dan Lieberman, One Texas Judge
is Responsible for Most of the Student Debt-Related Arrests in
America, Fusion, Apr. 14, 2016, available at http://fusion.net/
story/291271/student-debt-arrests-houston/.

6. 	

Capias is Latin for “bring me the body.” Historically, under
common law a writ of capias ad satisfaciendum required the local
sheriff to arrest a judgment debtor and keep them imprisoned
until the debt was paid. David G. Epstein & Jonathan M. Landers,
Debtors and Creditors: Cases and Materials 96 (1978).

7. 	

Outside the scope of this report is jailing for civil or criminal
contempt for unpaid child support. E.g., Turner v. Rogers,
564 U.S. 431 (2011); Tina Griego, Locking Up Parents For Not
Paying Child Support Can Be a Modern-Day “Debtor’s Prison,”
Washington Post, September 26, 2014, https://www
.washingtonpost.com/news/storyline/wp/2014/09/26/
locking-up-parents-for-not-paying-child-support-can-be-a-modernday-debtors-prison/?utm_term=.852ed81d555c; Frances Robles,
Shaila Dewan, Skip Child Support. Go to Jail. Lose Job. Repeat,
New York Times, April 20, 2015, https://www.nytimes
.com/2015/04/20/us/skip-child-support-go-to-jail-lose-jobrepeat.html; Carmen Solomon-Fears, Alison M. Smith, Carla
Berry, Congressional Research Services (2012), available at
http://www.ncsea.org/documents/CRS-Report-on-CSE-andIncarceration-for-Non-Payment-March-6-2012.pdf. Also outside
the scope of this report is jailing for civil contempt of court in
civil suits that are not debt collection actions, such as divorce
proceedings or fraud cases. In such cases, imprisonment can
continue for years; we documented six cases in which defendants
were jailed for over a year and as long as 14 years for not turning
over assets owed under civil judgments, usually for unpaid
alimony, unpaid legal fees, or for refusal to turn over assets:
Manuel Osete was jailed for nearly three years in Arizona when
he failed to turn over more than $800,000 in assets during a
divorce proceeding, Pennsylvania lawyer H. Beatty Chadwick
was jailed for 14 years for refusing to turn over $2.5 million to an
ex-wife, Florida options trader Steven Jay Lawrence was jailed for
six years when he refused to turn over $7 million in an offshore
trust he created after incurring personal debts of $20 million,
Tim Blixseth was jailed for over a year in Colorado, Martin
Armstrong spent seven years in prison when he failed to produce
$15 in gold and antiquities, and Warren Matthei was incarcerated
on a writ of capias for 10 years in New Jersey for unpaid legal fees.

8. 	

ACLU interview with Paul Arons, April 12, 2017.

9. 	

Compl., Consumer Financial Protection Bureau v. National
Corrective Group, Inc. (D. Md. March 30, 2015), available at

http://files.consumerfinance.gov/f/201503_cfpb_complaintnational-corrective-group.pdf.
10. 	

State Bar of Texas Collections 101 Course, “Post-Judgment
Discovery and Strategies,” April 30, 2014, available at http://
www.texasbarcle.com/Materials/Events/12844/161970.pdf.

11. 	

See 2012 Debtors’ Rights Act; Press Release, Illinois Attorney
General, “Madigan: New Laws Ban Sending Debtors to Prison
for Debts, Protect Consumers from High Costs of Refund
Anticipation Loans” (July 25, 2012), available at http://www
.illinoisattorneygeneral.gov/pressroom/2012_07/20120725
.html; Press Release, Illinois Attorney General, “Madigan:
Legislature Passes Debtors’ Rights Act” (May 30, 2012),
available at http://www.illinoisattorneygeneral.gov/
pressroom/2012_05/20120530c.html; Press Release, Illinois
Attorney General, “Madigan: House Passes Debtors’ Rights Act”
(March 29, 2012), available at http://www
.ag.state.il.us/pressroom/2012_03/20120329c.html; see
also Press Release, Illinois Attorney General, “Madigan:
New Laws Ban Sending Debtors to Prison for Debts, Protect
Consumer from High Costs of Refund Anticipation Loans”
(July 25, 2012), available at http://illinoisattorneygeneral.gov/
pressroom/2012_07/20120725.html; Illinois Debtors Thrown
in Jail: Lisa Madigan Working to Stop Debt Collector Arrest
Warrants, Huffpost, December 13, 2011, http://www
.huffingtonpost.com/2011/12/12/illinois-debtors-throwni_n_1144093.html. Information about current practices in
Illinois based on ACLU interviews and correspondence with Allen
Schwartz, Executive Director of Coordinated Advice & Referral
Program for Legal Services (CARPLS); Michelle Weinberg, Legal
Assistance Foundation of Metropolitan Chicago (LAF); and John
Roska, Land of Lincoln Legal Assistance.

12. 	

Caroline Ratcliffe, Brett Theodos, Signe-Mary McKernan, et al.,
Urban Institute, Debt in America (2014), available at http://www
.urban.org/sites/default/files/alfresco/publication-pdfs/413190Debt-in-America.PDF; Stu Kantor, 1 in 3 Americans with a Credit
File Has Debt Reported in Collections, urban Institute (July
29, 2014), available at http://www.urban.org/1-3-americanscredit-file-has-debt-reported-collections; Jeanne Sahadi, 1 in
3 U.S. Adults Have “Debt in Collections”, CNN Money, Aug.
7, 2014, available at http://money.cnn.com/2014/07/29/pf/
debt-collections/.

13. 	

Consumer Financial Protection Bureau, CFPB Spotlights
Concerns with Medical Debt Collection and Reporting (Dec. 11,
2014), available at http://www.consumerfinance.gov/about-us/
newsroom/cfpb-spotlights-concerns-with-medical-debt-collectionand-reporting/. See also Michael Karpman, Kyle J. Caswell,
Past-Due Medical Debt Among Nonelderly Adults, Urban Institute
(March 2017), available at http://www.urban.org/sites/default/
files/publication/88586/past_due_medical_debt.pdf.

14. 	

Consumer Financial Protection Bureau, Consumer Experiences
with Debt Collection: Findings from the CFPB’s Survey of
Consumer Views on Debt (2017), available at http://files
.consumerfinance.gov/f/documents/201701_cfpb_DebtCollection-Survey-Report.pdf.

15. 	

ACA International and Ernst & Young, An Analysis of the
Consumer Financial Protection Bureau’s Current Debt Collection
Complaints, November 2013.


16. 	

IBIS World, Debt Collection Agencies in the US
(December 2016), available at https://www.ibisworld.com/

industry-trends/market-research-reports/administrationbusiness-support-waste-management-services/administrative/
debt-collection-agencies.html; Consumer Financial Protection
Bureau, CFPB Annual Report: Fair Debt Collection Practices
Act (March 2017), available at https://s3.amazonaws.com/files
.consumerfinance.gov/f/documents/201703_cfpb_Fair-DebtCollection-Practices-Act-Annual-Report.pdf.
17. 	

For 2016, Portfolio Recovery Associates (PRA Group) reported
a net profit margin of 10.25 percent and Encore Capital Group
Inc. reported a net profit margin of 7.67 percent, while Walmart
reported a net profit margin of 2.81 percent for that year. See
Wall Street Journal, “PRA Group Inc., Overview: Financials,”
available at http://quotes.wsj.com/PRAA/financials; http://
quotes.wsj.com/ECPG/financials; Wall Street Journal, “WalMart Stores Inc., Overview: Financials,” available at http://
quotes.wsj.com/WMT/financials. See also Encore Capital
Group, Form 10-K, 2016 (filed Feb. 23, 2017), available at http://
investors.encorecapital.com/phoenix.zhtml?c=115920&p=irolreportsannual; PRA Group Inc., Form 10-K, 2016 (filed March 1,
2017), available at http://ir.pragroup
.com/static-files/9bdaef5f-5aaa-4f4a-ae4a-9d1ca345dc57.

18. 	

Federal Reserve Bank of New York, Quarterly Report on
Household Debt and Credit (February 2017) at 18, available
at https://www.newyorkfed.org/medialibrary/interactives/
householdcredit/data/pdf/HHDC_2016Q4.pdf.

19. 	

Consumer Financial Protection Bureau, Consumer Credit
Reports: A Study of Medical and non-Medical Collections
(Dec. 2014), available at http://files.consumerfinance
.gov/f/201412_cfpb_reports_consumer-credit-medical-and-nonmedical-collections.pdf.

20. 	

Senate Report No. 95-382 on the Fair Debt Collection Practices
Act, Report of the Committee on Banking, Housing and Urban
Affairs U.S. Senate Aug. 2, 1977.

21. 	

Nael Gabler, The Secret Shame of Middle-Class Americans,
Atlantic, May 2016, available at http://www.theatlantic
.com/magazine/archive/2016/05/my-secret-shame/476415/;
Federal Reserve, Report on the Economic Well-Being of U.S.
Households in 2013 (2014)­ at 18, available at https://www
.federalreserve.gov/econresdata/2013-report-economic-wellbeing-us-households-201407.pdf; The PEW Charitable Trusts,
What Resources Do Families Have for Financial Emergencies?
(Nov. 18, 2015), available at http://www.pewtrusts.org/en/
research-and-analysis/issue-briefs/2015/11/emergency-savingswhat-resources-do-families-have-for-financial-emergencies;
Federal Reserve, Report on the Economic Well-Being of U.S.
Households in 2013 (July 2014) at 18, available at https://www
.federalreserve.gov/econresdata/2013-report-economic-wellbeing-us-households-201407.pdf; Allison Ross, Financial Security
Index: Saving for a Rainy Day, Bankrate, June 23, 2014, available
at http://www.bankrate.com/finance/consumer-index/savingfor-a-rainy-day.aspx; Dan Mangan, Oh, My Aching Debt! Medical
Bills Top Emergency Savings, CNBC, Sept. 4, 2014, available at
http://www.cnbc.com/2014/09/03/medical-bills-top-emergencysavings-for-many-survey.html.

22. 	

Paul Ausick, Americans’ Debt Total: $12.35 Trillion, Yahoo
Finance, Dec. 15, 2016, available at http://finance.yahoo.com/
news/americans-debt-total-12-35-142053810.html. For minimumwage earners, the real value of their wages has increased only
21 percent since 1990, while the cost of living has increased 67
percent during the same period; see Dave Gilson, Overworked

A Pound of Flesh: The Criminalization of Private Debt

81

America: 12 Charts That Will Make Your Blood Boil, Mother
Jones, July/August 2011, available at http://www.motherjones
.com/politics/2011/05/speedup-americans-working-hardercharts/. Research by the Economic Policy Institute found that
minimum wage workers earn far less than they need to make
ends meet, no matter where they live in the United States; see
Elise Gould, Tanyell Cooke, Will Kimball, What Families Need
to Get By, Economic Policy Institute, Aug. 26, 2015, available at
http://www.epi.org/publication/what-families-need-to-get-byepis-2015-family-budget-calculator/; Fred Imbert, Cost of Living
Is Increasingly Out of Reach for Low-Wage Workers, CNBC, Aug.
31, 2015, available at https://www.cnbc.com/2015/08/31/costof-living-is-increasingly-out-of-reach-for-low-wage-workers
.html. Research by the Center for American Progress found
that for the middle class, real incomes have been stagnant
or declining while the cost of living has risen dramatically
at the same time; see Jennifer Erickson, “The Middle-Class
Squeeze,” CENTER FOR AMERICAN PROGRESS (September
24, 2014), available at https://www.americanprogress.org/
issues/economy/reports/2014/09/24/96903/the-middleclass-squeeze/. Research by EPI also found that since 1979,
low-wage workers’ hourly wages have decreased 5 percent and
middle-wage workers’ wages have increased only 6 percent, while
those with a very high wage saw a 41 percent increase. See Elise
Gould, 2014 Continues a 35-Year Trend of Broad-Based Wage
Stagnation, Economic Policy Institute, Feb. 19, 2015, available
at http://www.epi.org/publication/stagnant-wages-in-2014/;
Josh Bivens, Elise Gould, Lawrence Mishel, et al., Raising
America’s Pay, Economic Policy Institute, June 4, 2014, available
at http://www.epi.org/publication/raising-americas-pay/; Drew
Desilver, For Most Workers, Real Wages Have Barely Budged
for Decades, PEW Research Center, Oct. 9, 2014, available
at http://www.pewresearch.org/fact-tank/2014/10/09/
for-most-workers-real-wages-have-barely-budged-for-decades/.
23. 	

24. 	

25. 	

26. 	

82

PEW Research Center, Views of Job Market Tick
Up, No Rise in Economic Optimism, Sept. 4, 2014,
available at http://www.people-press.org/2014/09/04/
views-of-job-market-tick-up-no-rise-in-economic-optimism/.
Car title loans—sometimes also called car title pawns—are
predatory short-term loans issued to cash-strapped borrowers
who offer the titles of their vehicles as collateral, and they usually
carry high interest rates in the triple digits. When consumers are
unable to repay the loans, they lose their cars, often their biggest
or sole asset. For more information, see e.g., PEW Charitable
Trusts, Auto Title Loans (March 2015), available at http://www
.pewtrusts.org/~/media/assets/2015/03/autotitleloansreport.
pdf; Fred Schulte, Lawmakers Protect Title Loan Firms While
Borrowers Pay Sky-High Interest Rates, Center for Public
Integrity, Dec. 9, 2015, available at https://www.publicintegrity
.org/2015/12/09/18916/lawmakers-protect-title-loan-firmswhile-borrowers-pay-sky-high-interest-rates.
On Views of Race and Inequality, Blacks and Whites Are Worlds
Apart, PEW Research Center, June 27, 2016, available at http://
www.pewsocialtrends.org/2016/06/27/1-demographic-trendsand-economic-well-being/#fn-21776-11.
The racial wealth gap is calculated as the difference between the
net worth (assets minus debts) of a typical white household and
a typical Black household. The gap in white and Black household
wealth is a longstanding problem and has been widening in
recent years. See Rakesh Kochhar & Richard Fry, Wealth
Inequality Has Widened Along Racial, Ethnic Lines Since End of
Great Recession, Pew Research Center, Dec. 12, 2014, available
American Civil Liberties Union

at http://www.pewresearch.org/fact-tank/2014/12/12/
racial-wealth-gaps-great-recession.
27. 	

On Views of Race and Inequality, Blacks and Whites Are Worlds
Apart, PEW Research Center, June 27, 2016, available at http://
www.pewsocialtrends.org/2016/06/27/1-demographic-trendsand-economic-well-being/#fn-21776-11.

28. 	

See, e.g., PEW Charitable Trusts, What Resources Do Families
Have for Financial Emergencies? (Nov. 18, 2015), available
at http://www.pewtrusts.org/en/research-and-analysis/
issue-briefs/2015/11/emergency-savings-what-resources-dofamilies-have-for-financial-emergencies.

29. 	

For instance, the FDIC has found that payday borrowers are
disproportionately Latino or African-American. Federal
Deposit Insurance Corporation, FDIC National Survey
of Unbanked and Underbanked Households: Appendices,
at 83-84 (Oct. 2014), available at https://www.fdic.gov/
householdsurvey/2013appendix.pdf.

30. 	

See, e.g., Rakesh Kochhar & Richard Fry, Wealth Inequality
Has Widened Along Racial, Ethnic Lines Since End of Great
Recession, PEW Research Center, Dec. 12, 2014, available at
http://www.pewresearch.org/fact-tank/2014/12/12/racialwealth-gaps-great-recession/; Paul Kiel, What Small Debts
Matter So Much to Black Lives, ProPublica, Dec. 31, 2015,
available at https://www.propublica.org/article/why-smalldebts-matter-so-much-to-black-lives; Code Switch: Black, Latino
Two-Parent Families Have Half the Wealth of White Single
Parents, National Public Radio, Feb. 8, 2017, available at http://
www.npr.org/sections/codeswitch/2017/02/08/514105689/
black-latino-two-parent-families-have-half-the-wealth-of-whitesingle-parents; Amy Traub, Demos, The Asset Value of Whiteness
(2017), available at http://iasp.brandeis.edu/pdfs/2017/
AssetValue.pdf.

31. 	

PEW Charitable Trusts, What Resources Do Families Have for
Financial Emergencies? (Nov. 18, 2015), available at http://www
.pewtrusts.org/en/research-and-analysis/issue-briefs/2015/11/
emergency-savings-what-resources-do-families-have-for-financialemergencies.

32. 	

Paul Kiel & Annie Waldman, The Color of Debt: How Collection
Suits Squeeze Black Neighborhoods, ProPublica, Oct. 8, 2015,
available at https://www.propublica.org/article/debt-collectionlawsuits-squeeze-black-neighborhoods; Paul Kiel & Annie
Waldman, The Burden of Debt on Black America, Atlantic, Oct.
9, 2015, available at https://www.theatlantic.com/business/
archive/2015/10/debt-black-families/409756/.

33. 	

New Economic Project, The Debt Collection Racket in New York
(June 2013), available at http://www.neweconomynyc.org/wpcontent/uploads/2014/08/DebtCollectionRacketUpdated.pdf.

34. 	

Once a judgment has been entered, many courts refer to the
creditors and debtors as judgment creditors and judgment
debtors.

35. 	

Depending on the jurisdiction, these proceedings are called
“judgment debtor examinations,” “citations to discover assets,”
“supplementary proceedings,” “orders for examination,”
“disclosure hearings,” or “proceedings in aid of execution.” See,
e.g., Lea Shepard, Creditors’ Contempt, 2011 BYU L. Rev. 1509,
1518 (2011).

36. 	

To be clear, debtors are not incarcerated for failure to pay a debt, but
rather they are incarcerated for contempt of court. In these cases,
the judge writes a warrant for arrest on the charge of contempt of
court for a debtor’s failure to appear in court, for failure to supply
information to the court and/or the creditor, or for disobeying a
court order. Depending on the jurisdiction, the arrest warrants are
known as “body attachments,” “capias warrants,” “writs of bodily
attachment,” or simply bench warrants. In some cases, judges may
first order the debtor to appear at a contempt hearing, sometimes
called an order to show cause hearing, and issue the arrest warrant
if they fail to appear for that hearing.

37. 	

These 852 body attachments were issued in contract cases. In
addition, courts issued 43 body attachments in non-contract
cases.

38. 	

Data provided by the Nebraska State Court Administrator’s
Office in response to an open records request filed by the ACLU.

39. 	

Data collected by Erika Rickard, Associate Director of Field
Research at Harvard Law School’s Access to Justice Lab, in
September 2017 using the Massachusetts Trial Court Electronic
Case Access at http://www.masscourts.org/.

40. 	

In FY 2016, 1,886 civil bench warrants were issued by Utah
justice court judges, and 3,945 warrants were issued by district
court judges. In 2015, 3,872 civil bench warrants were issued by
Utah district court judges and 1,610 by justice court judges. Mark
Shenefelt, Utah Courts Increase Use of Civil Bench Warrants
to Compel Debt Payments, Standard Examiner, Mar. 26, 2017,
available at http://www.standard.net/Courts/2017/03/26/
Utah-courts-increase-use-of-civil-bench-warrants-to-compel-debtpayments-jails-Tremonton-Box-Elder; Mark Shenefelt, Box Elder
Jail Inmate’s Death Raises Concerns For Justice System, Not Foul
Play, Standard Examiner, Feb. 23, 2016, available at http://www
.standard.net/Courts/2016/02/22/Box-Elder-jail-death-sparksattention-to-civil-bench-warrants.html.

41. 	

Katie Rogers, Viral Student Loan Nightmare Is Not What It
Seems, Authorities Say, New York Times, Feb. 16, 2016, available
at https://www.nytimes.com/2016/02/17/us/viral-student-loannightmare-is-not-what-it-seems-authorities-say.html?_r=2; Rob
Wile, U.S. Marshals May Have Arrest Warrants For Hundreds
Who Haven’t Paid Their Student Loans, Splinter, Feb. 18, 2016,
available at http://fusion.net/u-s-marshals-may-have-arrestwarrants-for-hundreds-who-1793854803.

42. 	

See, e.g., United States v. Wheeler, S.D. Texas, 4:98-cv-2690; In re
Gabrielova, 527 S.W.3d 290 (Tex. App. 2016).

43. 	

In most jurisdictions, creditors are not required to provide
evidence that a debtor’s circumstances have changed before
requesting additional hearings, even though multiple debtor’s
examinations or written interrogatories are unlikely to lead to
the discovery of additional non-exempt assets. Instead, many
state laws explicitly allow creditors to not only request that
debtors appear “at any time,” but also to enforce compliance
with such proceedings via the court’s contempt power. Creola
Johnson, Prosecuting Creditors and Protecting Consumers:
Cracking Down on Creditors that Extort via Debt Criminalization
Practices, 80 Law & Contemp. Probs. 211, 228 (2017). See, e.g.,
Ariz. Rev. Stat. Ann. § 12-1631 (“… the judgment creditor, at any
time may: [h]ave an order from the court requiring the judgment
debtor to appear and answer concerning his property…”);
Neb. Rev. Stat. Ann. § 25-1565 (“At any time after the entry of
judgment against the judgment debtor… the judgment creditor is

entitled to an order… requiring the debtor to appear and answer
concerning his or her property…”); Okla. Stat. tit. 12, § 842 (“At
any time after a final judgment … on application of the judgment
creditor, a judge … shall order the judgment debtor to appear …
to answer concerning the judgment debtor’s property.”); Or. Rev.
Stat. Ann. § 18.265 (“At any time after a judgment is entered, a
judgment creditor may upon motion obtain an order requiring
the judgment debtor to appear before the court…”); Pa. R. Civ. P.
3117 (“Plaintiff at any time after judgment … may … take … oral
examination or written interrogatories.”).
44. 	

Davis v. Neb. Furniture Mart, Inc., No. 11-2559-JAR, 2013 WL
3854462 (D. Kan. July 24, 2013).

45. 	

Id.

46. 	

Charles Jordan Tabb, The History of Bankruptcy Law in the
United States, 3 Am. Bankr. Inst. L. Rev. 5, 16 (1995).

47. 	

28 U.S.C. § 2007 (stating in § 2007(a) that “A person shall not be
imprisoned for debt on a writ of execution or other process issued
from a court of the US in any State wherein imprisonment for
debt has been abolished…”).

48. 	

460 U.S. 752, 757 (1983). This is derived from Federal Rule of
Civil Procedure 69(a)(1), which states that a “money judgment
is enforced by a writ of execution...” as opposed to via contempt
proceedings. The first sentence in Fed. R. Civ. P. 69(a)(1)
continues, “unless the court directs otherwise.” This is read
narrowly and does not include contempt proceedings. Suffler
v. Heritage Bank, 750 F.2d 1141, 1147 (9th Cir. 1983). See also
Hilao v. Estate of Marcos, 95 F.3d 848, 854 (9th Cir. 1996); In
re Wallace, 490 B.R. 898, 906-07 (B.A.P. 9th Cir 2013); In re
Valentine, 2014 WL 1347229, No. 12-20740-TLM, at *5 (Bankr.
D. Idaho Apr. 3, 2014); Combs v. Ryan’s Coal Co., Inc., 785 F.2d
970, 980 (11th Cir. 1986); Aetna Cas. & Sur. Co. v. Markarian,
114 F.3d 346, 349 (1st Cir. 1997). This report focuses on private,
household, and consumer debts. The incarceration of indigent
defendants unable to pay criminal justice debt like fines, fees, and
costs is outside the scope of this report. In such cases, a trio of
Supreme Court cases has limited debtor’s prisons by prohibiting
states from discriminating based on indigence when considering
incarceration for failure to pay such debt. See Bearden v. Georgia,
461 U.S. 660 (1983); Williams v. Illinois, 399 U.S. 235 (1970);
Tate v. Short, 401 U.S. 395 (1971). The ACLU continues to expose
and challenge the arrest and jailing of poor people for failure to
pay legal debts. See, e.g., American Civil Liberties Union (ACLU),
In for a Penny: The Rise of America’s New Debtors’ Prisons
(2010), available at https://www.aclu.org/sites/default/files/
field_document/InForAPenny_web.pdf.

49. 	

See, e.g., In re Adam, 100 P.3d 77, 88 (Haw. Ct. App. 2004)
(holding that contempt of court in Hawaii is not a remedy used to
enforce a judgment); Papatheofanis v. Allen, 215 P.3d 778 (N.M.
Ct. App. 2009) (holding that New Mexico’s courts cannot use civil
contempt to enforce a civil money judgment).

50. 	

Forty-one states ban imprisonment for debt by constitutional
provision, some of which include exceptions in cases of
fraud or other circumstances. The other nine states prohibit
imprisonment for debt by statute. See Christopher D. Hampson,
State Bans on Debtors’ Prisons and Criminal Justice Debt,
129 Harv. L. Rev. 1024, 1035 n.95, n.99 (2016) (listing the
constitutional provisions and state statutes).

A Pound of Flesh: The Criminalization of Private Debt

83

51. 	

Richard E. James, Putting Fear Back into the Law and Debtors
Back into Prison: Reforming the Debtors’ Prison System, 42
Washburn L. J. 143, 149 (2002).

52. 	

Instead of using contempt authority, both the federal government
and the states use writs of execution—where local law
enforcement seize non-exempt assets to cover the judgment—or in
personam remedies—such as debtor’s examinations—to attempt
to collect money judgments. Federal Rule of Civil Procedure 69(a)
(1) states that “[t]he procedure on execution—and in proceedings
supplementary to and in aid of judgment or execution—must
accord with the procedure of the state where the court is located.”
Fed. R. Civ. P. 69(a)(1). Some states require creditors to first
attempt execution of the judgment via writs of execution, where
local law enforcement seize non-exempt assets to cover the
judgment, before they allow creditors to initiate in personam
remedies. Given that many debtors lack non-exempt assets to
cover their debt, most debt collectors view this requirement as
a procedural hurdle that must be surpassed before in personam
remedies can be pursued. Other states allow creditors and debt
collectors to immediately utilize in personam remedies. See Lea
Shepard, Creditors’ Contempt, 2011 BYU L. Rev. 1509, 1529-30
(2011). For example, in Idaho, the court written instructions
for judgment debtor examinations state that creditors must
first attempt collection via a writ of execution. The instructions
recognize that this is merely a procedural hurdle, as “[t]ypically,
the Sheriff does not receive payment or find assets.” CAO CvPi
10-5 Instructions for Judgment Debtor Examinations, Court
Assistance Office, State of Idaho Judicial Branch, https://
courtselfhelp.idaho.gov/other-misc-civil# (found under
Enforcing Civil Judgments).

53. 	

Courts differentiate the failure to pay money judgments, where
contempt is unavailable, from debtors’ failure to comply with
such proceedings, where contempt is available and regularly
used. In such instances, debtors are held in contempt not for the
inability to pay the money judgment, but for refusing to comply
with court orders designed to satisfy the money judgment. Some
courts have also differentiated between the failure to comply with
turnover orders or installment plans, where debtors are expected
to give up certain assets or make payments, from the failure to
pay money judgments. Despite their similarity to failure to pay,
courts have upheld the use of contempt and incarceration in such
cases, viewing them as proceedings supplementary to the money
judgment as opposed to a failure to pay the money judgment
itself. See Abbasid, Inc. v. First National Bank, No. CV-09-00354
JP/LFG, 2010 WL 11493333, at *3 (D.N.M. Sept. 9, 2010)
(reviewing 10th Circuit precedent along similar lines).

54. 	

Ex parte Robinson, 86 U.S. 505, 510 (1874).

55. 	

See Rob Wile, Dan Lieberman, One Texas Judge Is Responsible
for Most of the Student Debt-Related Arrests in America, Fusion
TV, Apr. 14, 2016, available at http://fusion.net/story/291271/
student-debt-arrests-houston/.

56. 	

Cersonsky was quoted as telling a reporter in 2012 that
his five-attorney law firm had collected as much as $1
million from student loan debtors in one year alone. John
Hechinger, Teacher’s Wages Garnished As U.S. Goes
After Loan Default, Bloomberg, Jul. 2, 2012, available at
https://www.bloomberg.com/news/articles/2012-07-02/
teacher-s-wages-garnished-as-u-s-goes-after-loan-default.

57. 	

M. H. “Butch” Cersonsky, State Bar of Texas Collections 101
Course, “Post-Judgment Discovery and Strategies,” April 30,

84

American Civil Liberties Union

2014, available at http://www.texasbarcle.com/Materials/
Events/12844/161970.pdf.
58. 	

ACLU interview with Judge Lenore Driggs, April 27, 2017.

59. 	

Doug Donovan, Jared Kushner’s Firm Seeks Arrest of Maryland
Tenants to Collect Debt, Baltimore Sun, Aug. 16, 2017, available at
http://www.baltimoresun.com/news/maryland/investigations/
bs-md-kushner-arrests-20170812-story.html.

60. 	

Gomes v. Midland Funding, LLC 839 F. Supp. 2d 417 (2012).

61. 	

ACLU interview with Dalié Jiménez, June 8, 2017.

62. 	

Data collected by Erika Rickard, Associate Director of Field
Research at Harvard Law School’s Access to Justice Lab, in
September 2017 using the Massachusetts Trial Court Electronic
Case Access at http://www.masscourts.org/. Cases were
categorized broadly as “consumer debt” by (1) plaintiff name,
including debt buyers, banks, utilities, fuel, medical debt, and
student debt, and (2) defendant name, indicating that defendant
is an individual and not a business or other entity. Court divisions
were randomly selected from the District Court location and are
not necessarily representative of the state as a whole.

63. 	

ACLU email correspondence with Scott Kinkley, June 22, 2017.

64. 	

Liz Dedrick, Northeastern University School of Law, A Report on
the Initial Impact of Recent Changes to the Massachusetts Uniform
Small Claims Rules, Feb. 25, 2011 (on file with the ACLU).

65. 	

ACLU interview with Katherine Rybak, June 8, 2017.

66. 	

ACLU interview with Katie Johnson, May 10, 2017.

67. 	

Button v. James, 909 N.E.2d 1007 (Ind. Ct. App. 2009).

68. 	

Id.

69. 	

See letter in Appendix III of this report.

70. 	

In 1833, the federal government ended incarceration for debt. A
1948 statute, 28 U.S.C. § 2007, prohibits incarceration for debt
anywhere where it is outlawed by state law. As each state bars
imprisonment for debt either in its constitution or by statute,
debtors’ prisons have theoretically been eliminated in the United
States. See Charles Jordan Tabb, The History of Bankruptcy
Law in the United States, 3 Am. Bankr. Inst. L. Rev. 5, 16 (1995);
Christopher D. Hampson, State Bans on Debtors’ Prisons and
Criminal Justice Debt, 129 Harv. L. Rev. 1024, (2016).

71. 	

See, e.g., Ronald S. Canter, Collection of Contract Debts, Md. Inst.
For Continuing Prof’l Educ. Law, Inc. (2012); Edward C. Dolan,
Collection of Contract Debts, in Practice Manual for the Maryland
Lawyer S-35, S-36 (3d ed.2002) (“[B]ody attachments are usually
rather effective, as most debtors do not like to be imprisoned and
suddenly find funds.”); Karen I. Englehardt, Guide to Collection
Procedures in Federal Court, 16 CHIC. BAR ASS’N REC. 34,
36–37 (2002) (“If the witness does not attend that hearing, you
should ask the court to enter a body attachment, the process
where the U.S. Marshal’s Service will arrest and bring the
witness to the Judge.”); M.H. “Butch” Cersonsky, Post-Judgment
Discovery and Strategies, Texas Bar Continuing Legal Education
(2014), available at http://www.texasbarcle.com/Materials/
Events/12844/161970.pdf (stating “It’s easier to settle when the
debtor is under arrest.”).

72. 	

Ronald S. Canter, Collection of Contract Debts, Md. Inst. For
Continuing Prof’l Educ. Law, Inc. (2012).

73. 	

Chris Serres, Debtors and the New Breed of Collectors: Is Jailing
Debtors the Same as Debtors’ Jail?, STAR Tribune, Jun. 6, 2010, at
A9.

74. 	

Kelly M. Greco & Stephanie R. Hammer, No More “Debtors’
Prison”: Greater Notice, Protections for Judgment Debtors, 101 Ill.
B. J. 134 (2013).

75. 	

In re Daniels, 316 B.R. 342 (Bankr. D. Idaho 2004).

76. 	

See, e.g., Minn. Stat. § 550.011 (“Cash bail posted as a result of
being cited for civil contempt of court order under this section
may be ordered payable to the creditor to satisfy the judgment,
either partially or fully.”); Okl. Stat. tit. 12, § 68 (When the
“person arrested, pursuant to the authority of such process,
makes a bond for his appearance… the bond made shall be
disbursed … to the party in the suit who has procured the bench
warrant… rather than to the State of Oklahoma.”).

77. 	

Lea Shepard, Creditors’ Contempt, 2011 BYU L. Rev. 1509, 1535
(2011).

78. 	

E.g., State v. Burgess, No. E2015-02213-CCA-R3-CD, 2017
WL2117029 (Tenn. Crim. App. May 15, 2017); Daviscourt v.
Columbia State Bank, No. 05-cv-00687, 2006 WL 2781593 (D.
Colo. Nov. 9, 2006).

79. 	

Iskric v Commonwealth Fin Sys (In re Iskric), 496 BR 355, 364
(Bankr. MD Pa, 2013). In Re Iskric, Bankruptcy No. 1-12-bk03839-RNO. Adversary No. 1-13-ap-00076-RNO, 496 B.R. 355
(2013).

80. 	

Rains v. Dr. Auto Care LLC, Case No. 10-34826 (Bankr N.D. Ohio
March 24, 2011).

81. 	

Mariah Noble, Utah Man Jailed for Unpaid Bill Killed Himself
with Poison Rather Than Stay in Jail, Police Say, SALT Lake
Tribune, Nov. 18, 2016, available at http://www
.sltrib.com/news/4596028-155/utah-man-took-fatal-dose-of;
Mark Shenefelt, Man Who Died in Box Elder Jail Was There
For Not Paying Debt, Standard Examiner, Feb. 15, 2016,
available at http://www.standard.net/Courts/2016/02/14/
Man-who-died-in-Box-Elder-jail-was-there-for-not-paying-a-debt.

82. 	

In re Butler, No. 07-81047, 2011 WL 806078 (Bankr. C.D. Ill. Mar.
11, 2011).

83. 	

Zencka v. Lake Cnty., Cause No. 2:14-CV-371 (N.D. Ind. May 24,
2016).

84. 	

Compl., Zimmerman v. Bellows, No. 0:12-cv-02811-RHK-SER (D.
Minn. Nov. 2, 2012), available at http://www.hansenlawoffice
.com/MNDebtorsprison/Complaint%20-%20filed.pdf.

85. 	

Mem. Op. Order, Zimmerman v. Bellows, 988 F. Supp. 2d 1026,
1030 (D. Minn. 2013), available at https://casetext.com/case/
zimmerman-v-bellows.

86. 	

Human Rights Watch, Rubber Stamp Justice: US Courts, Debt
Buying Corporations, and the Poor 50-51 (2016), available at
https://www.hrw.org/sites/default/files/report_pdf/us0116_
web.pdf.

87. 	

See Jayne S. Ressler, Civil Contempt Confinement and the
Bankruptcy Abuse Prevention and Consumer Protection Act of
2005: An Examination of Debtor Incarceration in the Modern
Age, 37 RUTGERS L.J. 355 (2006) (arguing for more robust due
process protections for defendants subject to incarceration for
civil contempt).

88. 	

See, e.g., National Consumer Law Center, The Debt Machine: How
the Collection Industry Hounds Consumers and Overwhelms the
Courts (July 2010), available at https://www.nclc.org/images/
pdf/debt_collection/debt-machine.pdf.

89. 	

Paul Kiel, So Sue Them: What We’ve Learned About the Debt
Collection Lawsuit Machine, ProPublica, May 5, 2016, available
at https://www.propublica.org/article/so-sue-them-what-wevelearned-about-the-debt-collection-lawsuit-machine.

90. 	

Fed. Trade Comm’n, Repairing A Broken System: Protecting
Consumers in Debt Collection Litigation and Arbitration 5 (July
2010), available at https://www.ftc.gov/sites/default/files/
documents/reports/federal-trade-commission-bureau-consumerprotection-staff-report-repairing-broken-system-protecting/
debtcollectionreport.pdf.

91. 	

Human Rights Watch, Rubber Stamp Justice: US Courts, debt
Buying Corporations, and the Poor 2, 12-15 (2016), available at
https://www.hrw.org/sites/default/files/report_pdf/us0116_
web.pdf; see also Paul Kiel & Annie Waldman, The Color of Debt:
How Collection Suits Squeeze Black Neighborhoods, ProPublica,
Oct. 8, 2015, available at https://www.propublica.org/article/
debt-collection-lawsuits-squeeze-black-neighborhoods.

92. 	

Dalié Jiménez, Dirty Debts Sold Dirt Cheap, 52 Harv. J. on Legis.
41 (2015).

93. 	

Fed. Trade Comm’n, Collecting Consumer Debts: The Challenges
of Change, A Workshop Report, at 24 (Feb. 2009), available at
https://www.ftc.gov/sites/default/files/documents/reports/
collecting-consumer-debts-challenges-change-federal-tradecommission-workshop-report/dcwr.pdf.

94. 	

See, e.g., Kathy M. Kristof, When Debt Collectors Go After the
Wrong Person, Los Angeles Times, Dec. 19, 2010, available
at http://articles.latimes.com/2010/dec/19/business/
la-fi-perfin-20101219.

95. 	

See, e.g., Appleseed, Due Process and Consumer Debt:
Eliminating Barriers to Justice in Consumer Credit Cases (2010),
available at http://www.appleseednetwork.org/wp-content/
uploads/2012/05/Due-Process-and-Consumer-Debt.pdf;
Testimony of April Kuehnhoff, Staff Attorney at the National
Consumer Law Center on behalf of its low-income clients,
before the Massachusetts Legislature Joint Financial Services
Committee, in support of S.146/H.804, An Act Relative to
Family Financial Protection (October 27, 2015), available at
https://www.nclc.org/images/pdf/debt_collection/testimonyact-family-prot-2015.pdf; Fed. Trade Comm’n, The Structure
and Practices of the Debt Buying Industry, (2013), available at
https://www.ftc.gov/sites/default/files/documents/reports/
structure-and-practices-debt-buying-industry/debtbuyingreport.
pdf; Fed. Trade Comm’n, Repairing A Broken System: Protecting
Consumers in Debt Collection Litigation and Arbitration 5 (July
2010), available at https://www.ftc.gov/sites/default/files/
documents/reports/federal-trade-commission-bureau-consumerprotection-staff-report-repairing-broken-system-protecting/
debtcollectionreport.pdf; Dalié Jiménez, Dirty Debts Sold Dirt

A Pound of Flesh: The Criminalization of Private Debt

85

Cheap, 52 Harv. J. on Legis. 41 (2015); Peter Holland, Junk
Justice: A Statistical Study of 4,400 Lawsuits Filed by Debt Buyers,
26 Loy. Consumer L. Rev. 179, 206-10 (2014); New Economy
Project, Legal Aid Society, MFY Legal Services, & Urban Justice
Center, Debt Deception: How Debt Buyers Abuse the Legal
System to Prey on Lower-Income New Yorkers 1 (May 2010),
available at https://www.neweconomynyc.org/wp-content/
uploads/2014/08/DEBT_DECEPTION_FINAL_WEB-new-logo
.pdf; Human Rights Watch, Rubber Stamp Justice: US Courts,
Debt Buying Corporations, and the Poor (2016), available at
https://www.hrw.org/sites/default/files/report_pdf/us0116_
web.pdf.
96. 	

97. 	

98. 	

86

An FTC roundtable workshop elicited estimates that close
to 90 percent of debt collection lawsuits resulted in default
judgments in their jurisdictions. Fed. Trade Comm’n, Repairing
A Broken System: Protecting Consumers in Debt Collection
Litigation and Arbitration 7 (July 2010), available at https://
www.ftc.gov/sites/default/files/documents/reports/
federal-trade-commission-bureau-consumer-protection-staffreport-repairing-broken-system-protecting/debtcollectionreport
.pdf. See also, e.g., McCollough v. Johnson, Rodenburg &
Lauinger, L.L.C., 637 F.3d 939 (9th Cir. 2011) (estimating
that 90 percent of collection lawsuits result in a default); New
Economy Project, Legal Aid Society, MFY Legal Services, &
Urban Justice Center, Debt Deception: How Debt Buyers Abuse
the Legal System to Prey on Lower-Income New Yorkers 6 (May
2010) (finding that 94.3 percent of cases in a sample of New
York City collection lawsuits resulted in a default judgment
or a settlement); Dignity Faces a Steamroller: Small-Claims
Proceedings Ignore Rights, Tilt to Collectors, Boston Globe, July
31, 2006 (finding an 80 percent default rate in Massachusetts
collection lawsuits); Urban Justice Center, Debt Weight:
the Consumer Credit Crisis in New York City and Its Impact
on the Working Poor 1 (Oct. 2007), available at https://cdp.
urbanjustice.org/sites/default/files/CDP_Debt_Weight.pdf
(finding 80 percent of debt collection actions in New York resulted
in default judgments); MFY Legal Services, Justice Disserved: A
Preliminary Analysis of the Exceptionally Low Appearance Rate
by Defendants in Lawsuits Filed in the Civil Court of the City of
New York (2008) (finding a default rate of 90 percent among New
York City debtors sued by the seven largest debt collection firms),
available at http://mobilizationforjustice.org/wp-content/
uploads/reports/Justice_Disserved.pdf.
Fed. Trade Comm’n, Repairing A Broken System: Protecting
Consumers in Debt Collection Litigation and Arbitration 7 (July
2010), available at https://www.ftc.gov/sites/default/files/
documents/reports/federal-trade-commission-bureau-consumerprotection-staff-report-repairing-broken-system-protecting/
debtcollectionreport.pdf; Human Rights Watch, Rubber Stamp
Justice: US Courts, Debt Buying Corporations, and the Poor 33
(2016), available at https://www.hrw.org/sites/default/files/
report_pdf/us0116_web.pdf.
Consumer advocates have extensively documented the
considerable deficiencies in serving defendants in debt collection
litigation. See New Economy Project, Legal Aid Society, MFY
Legal Services, & Urban Justice Center, Debt Deception: How
Debt Buyers Abuse the Legal System to Prey on Lower-Income
New Yorkers 9 (May 2010) (determining that 71 percent of
collection suit defendants who called a New York City legal hotline
“were either not served or served improperly, and more than half
received no notice of the lawsuit at all”); MFY Legal Services,
Inc., Justice Disserved: A Preliminary Analysis of the Exceptionally
American Civil Liberties Union

Low Appearance Rate by Defendants in Lawsuits Filed in the Civil
Court of the City of New York, 1, 11 (2008) (estimating that “nine
out [of] ten New Yorkers who are sued in the Civil Court of the
City of New York are being denied their right to be heard because
of possibly illegal process serving practices” based on study of 91
debt collection lawsuits); Appleseed, Due Process and Consumer
Debt: Eliminating Barriers to Justice in Consumer Credit Cases,
12 (2010) (“Consumer debt litigants, court personnel, and judges
all confirm that the number of default judgments entered because
the defendant was not actually served is unacceptably high.”).
Some defendants receive notice of debt collection litigation
only after the entry of default judgment against them and the
garnishment of their wages or bank accounts. See Fed. Trade
Comm’n, Repairing A Broken System: Protecting Consumers in
Debt Collection Litigation and Arbitration 9 n.23 (July 2010).
99. 	

Human Rights Watch, Rubber Stamp Justice: US Courts, Debt
Buying Corporations, and the Poor 38 (2016), available at https://
www.hrw.org/sites/default/files/report_pdf/us0116_web.pdf.

100. 	

See, e.g., Monique Sykes et al. vs. Mel Harris & Associates, LLC
et al., 13-2742-cv (2d Cir. 2015); Martha Neil, $59M Settlement in
“Sewer Service” Debt-Collection Suit; 190,000 Default Judgment
May Be Vacated, ABA Journal, Nov. 16, 2015, available at http://
www.abajournal.com/news/article/59m_settlement_in_sewer_
service_debt_collection_suit_115k_default_judgments; Ray
Rivera, Suit Claims Fraud by New York Debt Collectors, New York
Times, Dec. 30, 2009, available at http://www.nytimes
.com/2009/12/31/nyregion/31debt.html.

101. 	

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950) (holding also that the means employed “must be such as
one, desirous of actually informing the absentee, might actually
reasonably adopt to accomplish it.” Id. at 315).

102. 	

Greene v. Lindsey, 456 U.S. 444, 453-54 (1982).

103. 	

Jones v. Flowers, 547 U.S. 220, 225 (2006).

104. 	

Studies have shown that less than 2 percent of Maryland debtors
and less than 1 percent of individuals sued by debt buyers in New
York City had legal representation. Peter Holland, Junk Justice:
A Statistical Study of 4,400 Lawsuits Filed by Debt Buyers, 26 Loy.
Consumer L. Rev. 179, 206-10 (2014); New Economy Project, Legal
Aid Society, MFY Legal Services, & Urban Justice Center, Debt
Deception: How Debt Buyers Abuse the Legal System to Prey on
Lower-Income New Yorkers 1 (May 2010). See also Urban Justice
Center, Debt Weight: the Consumer Credit Crisis in New York
City and Its Impact on the Working Poor (Oct. 2007), available at
https://cdp.urbanjustice.org/sites/default/files/CDP_Debt_
Weight.pdf.

105. 	

Human Rights Watch, Rubber Stamp Justice: US Courts, Debt
Buying Corporations, and the Poor 40-44 (2016), available at
https://www.hrw.org/sites/default/files/report_pdf/us0116_
web.pdf; Dalié Jiménez, Dirty Debts Sold Dirt Cheap, 52 Harv.
J. on Legis. 41 (2015); Peter Holland, Junk Justice: A Statistical
Study of 4,400 Lawsuits Filed by Debt Buyers, 26 Loy. Consumer L.
Rev. 179, 206-10 (2014).

106. 	

Peter Holland, Junk Justice: A Statistical Study of 4,400 Lawsuits
Filed by Debt Buyers, 26 Loy. Consumer L. Rev. 179, 206-10 (2014).

107. 	

Urban Justice Center, Debt Weight: the Consumer Credit Crisis
in New York City and Its Impact on the Working Poor (Oct. 2007),

available at https://cdp.urbanjustice.org/sites/default/files/
CDP_Debt_Weight.pdf.
108. 	

Human Rights Watch, Rubber Stamp Justice: US Courts, Debt
Buying Corporations, and the Poor 38 (2016).

109. 	

Id. at 38–39.

110. 	

Id.

111. 	

ADP Research Institute, Garnishment: The Untold Story
(2014), available at https://www.adp.com/tools-and-resources/
adp-research-institute/insights/~/media/RI/pdf/Garnishmentwhitepaper.ashx; see also Paul Kiel, Unseen Toll: Wages of
Millions Seized to Pay Past Debts, ProPublica, Sept. 15, 2014,
https://www.propublica.org/article/unseen-toll-wages-ofmillions-seized-to-pay-past-debts; ADP Research Institute, The
U.S. Wage Garnishment Landscape: Through the Lens of the
Employer (2017), available at https://www.adp.com/tools-andresources/adp-research-institute/research-and-trends/-/media/
RI/pdf/WageGarnishment_WhitePaper.ashx.

112. The NCLC report found that no state in the United States meets
five basic standards to prevent garnishment and property
seizures from reducing families to below a living wage, seizing
their sole used car or the family’s home, and denying them
minimal funds to pay such essential costs as rent, utilities, and
commuting expenses. National Consumer Law Center, “No
Fresh Start: How States Let Debt Collectors Push Families into
Poverty,” October 2013, https://www.nclc.org/images/pdf/
pr-reports/report-no-fresh-start.pdf. According to research
by ProPublica, more than half of states allow creditors to take
one-fourth of their paycheck with no limit on garnishment
once that paycheck is deposited in their bank account (student
loan debts are governed by different laws capping seizures
at 15 percent of disposable income). Paul Kiel, Unseen Toll:
Wages of Millions Seized to Pay Past Debts, ProPublica, Sept.
15, 2014, available at https://www.propublica.org/article/
unseen-toll-wages-of-millions-seized-to-pay-past-debts.
113. 	

Human Rights Watch, Rubber Stamp Justice: US Courts, Debt
Buying Corporations, and the Poor 2, 57-60 (2016), available
at https://www.hrw.org/sites/default/files/report_pdf/
us0116_web.pdf; Maria Aspan, Courthouse “Rocket Dockets”
Give Debt Collectors Edge over Debtors, American Banker, Feb.
11, 2014, available at https://www.americanbanker.com/news/
courthouse-rocket-dockets-give-debt-collectors-edge-over-debtors.

114. 	

Keller-Bee v. State, 448 Md. 300 (2016).

115. 	

Id.; State v. Keller–Bee, 224 Md.App. 1, 3 (2015).

116. 	

Goodall v. Quick Collect, Inc., No. 6:15-cv-01887-MC, 2016 WL
5923422 (D. Or. Oct. 11, 2016). See Quick Collect, http://www
.quickcollectinc.com/; Quick Collect Inc., BuzzFile, http://www
.buzzfile.com/business/Qci-503-252-0083.

117. 	

Easter v. Caldwell, No. 14-0967, 2015 WL 1281022 (W.D. La. Mar.
20, 2015).

118. 	

Argersinger v. Hamlin, 407 U.S. 25 (1972) (actual incarceration);
Scott v. Illinois, 440 U.S. 367 (1979) (actual incarceration);
Alabama v. Shelton, 535 U.S. 654 (2002) (suspended
incarceration).

119. 	

Lassiter v. Dep’t Soc. Servs., 452 U.S. 18, 32-33 (1981) (holding
that there is not a categorical right to counsel in proceedings
regarding the termination of parental rights because the Court
only recognized an indigent’s right to appointed counsel where
the litigant could lose her physical liberty if she lost the litigation).

120. 	

The Supreme Court found that there was no due process right
to counsel in a contempt proceeding regarding the alleged
nonpayment of child support, even though the decision resulted
in the party’s incarceration. While a cursory comparison may
give the appearance that this case is similar to those described
in this report, as both involve contempt proceedings and debt,
the court’s analysis focused on the countervailing interests
specific to the child support context. As the cases covered in this
report focus on private consumer debt, these countervailing
interests are inapplicable. Turner v. Rogers, 564 U.S. at 445, 447
(distinguishing “debt collection proceedings” from civil contempt
proceedings brought by uncounseled custodial parents against
noncustodial parents for unpaid child support in which there is
no due process right to appointed counsel).

121. 	

Turner, 564 U.S. at 447.

122. 	

Id. at 449.

123. 	

Mathews v. Eldridge, 324 U.S. 319, 335 (1976); see Turner v.
Rogers, 564 U.S. 431, 444-45 (2011) (applying the Mathews
balancing test to the right to counsel in the civil child custody
context); Lassiter v. Dep’t Soc. Servs., 452 U.S. 18, 27-31 (1981)
(applying the Mathews test to a civil proceeding about the
termination of parental rights).

124. 	

In Turner v. Rogers, the Supreme Court recognized incarceration
as a weighty private interest. 564 U.S. 431, 445 (2011). Further,
the Court has long recognized that “[f]reedom from bodily
restraint has always been at the core of the liberty protected by
the Due Process Clause.” Foucha v. Louisiana, 504 U.S. 71, 80
(1992).

125. 	

In analyzing the right to counsel in civil contempt proceedings
for unpaid child support, the Supreme Court weighed heavily the
interest of the custodial parent in need of child support who was
also not represented by an attorney, and found that a right to
counsel for the noncustodial parent facing incarceration would
unduly slow child support payments to those immediately in
need and make the proceedings less fair overall by appointing
counsel only to the noncustodial parent. Turner, 564 U.S. at 447
(applying the balancing test set forth in Mathews, 424 U.S. 319,
outlining countervailing interests including “an asymmetry
of representation that would alter significantly the nature of
the proceeding,” “unduly slow payment to those immediately
in need,” or “mak[ing] the proceedings less fair overall,” and
concluding that there is no due process right to appointed counsel
for indigent non-custodial parents charged with child support
nonpayment in proceedings brought by uncounseled custodial
parents).

126. 	

Id. at 449 (strongly suggesting that due process affords a right
to counsel in “debt-collection proceedings” in which “[t]he
government is likely to have counsel or some other competent
representative”).

127. 	

See United Mine Workers of America v. Bagwell, 512 U.S. 821,
828 (1994) (citing Gompers v. Bucks Stove & Range Co., 221
U.S. 418, 441 (1911)); Turner, 564 U.S. at 441 (citing U.S. v.
Dixon, 509 U.S. 688, 696 (1993) and Cooke v. U.S., 267 U.S. 517,

A Pound of Flesh: The Criminalization of Private Debt

87

537 (1925)). Cases involving private debt collection frequently
involve contempt charges that concern alleged misconduct that
takes place outside of court, such as alleged failure to complete
interrogatories or to respond to requests for documents. The
essential elements of the alleged misconduct—the ability to
provide information or documents—are not facts observed in
open court, and therefore summary proceedings do not apply.
See United Mine Workers, 512 U.S. at 833 (prohibiting summary
adjudication of indirect contempt); F.T.C. v. Trudeau, 606 F.3d
382, 386 (7th Cir. 2010) (same).

136. 	

ACLU interview with Paul Arons, April 12, 2017.

137. 	

Compl., Consumer Financial Protection Bureau v. National
Corrective Group, Inc. (D. Md. March 30, 2015), available at
http://files.consumerfinance.gov/f/201503_cfpb_complaintnational-corrective-group.pdf.

138. 	

Jessica Silver-Greenberg, In Prosecutors, Debt Collectors Find
a Partner, New York Times, Sept. 15, 2012, available at http://
www.nytimes.com/2012/09/16/business/in-prosecutors-debtcollectors-find-a-partner.html. Other estimates put the figure at 2
million consumers. See, e.g., Mosi Secret, Bounced Checks: How
Local District Attorneys Get a Cut of the Debt Collection Business,
ProPublica, March 2, 2009, available at https://www.propublica
.org/article/bounced-checks-how-local-das-get-a-cut-of-the-debtcollection-business.

139. 	

American Corrective Counseling Services (ACCS) launched in
1987. See Mem., Shouse v. Nat’l Corrective Grp., Inc., 2011 WL
1376403 (M.D. Pa. Apr. 12, 2011).

140. 	

See, e.g., Landfried v. Spokane Cnty., 2011 WL 1584328 (E.D.
Wash. Apr. 27, 2011); Del Campo v. Am. Correctives Servs. Inc.,
718 F. Supp. 2d 1116 (N.D. Cal. 2010); Schwarm v. Craighead, 552
F. Supp. 2d 1056 (E.D. Cal. 2008); Hamilton v. Am. Corrective
Counseling Servs. Inc., 2006 WL 3332828 (N.D. Ind. Nov. 14,
2006); Del Campo v. Kennedy, 491 F. Supp. 2d 891 (N.D. Cal.
2006); Gradisher v. Cnty. of Muskegon, 255 F. Supp. 2d 720 (W.D.
Mich. 2003); Liles v. Am. Corrective Counseling Servs., Inc., 131
F. Supp. 2d 1114 (S.D. Iowa 2001).

141. 	

Federal Trade Commission v. Check Investors, Inc., 502 F.3d
159 (3d Cir. 2007), available at http://www2.ca3.uscourts.gov/
opinarch/053558p.pdf.

See, e.g., Consulting and Administrative Support Agreement
between American Corrective Counseling Services, Inc.
and the State’s Attorney of Prince George’s County, MD,
Schedule I, Prince George County 00273 (“ACCS is to be
compensated solely from the proceeds of the Seminar Fees
charged to Participants, plus the incidental expenses charged to
Participants for scheduling the Seminars, monitoring restitution
and seminar payment arrangements, and any other incidental
costs authorized by law and the State’s Attorney.”), available
at https://www.aclu.org/sites/default/files/assets/aclu_and_
brennan_center_comment_to_cfpb_0.pdf at App. 2; see also
Decl. of Michael L. Wilhelms, In re SCH Corp., No. 09 -10198
(Bankr. Del. 2009), ¶ 10 (stating that the “primary compensation
for [ACCS’s] services stems from the fees paid by Participants to
enroll in the Debtors’ seminars.”), available at https://www
.aclu.org/sites/default/files/assets/aclu_and_brennan_center_
comment_to_cfpb_0.pdf at App. 5, Washington County 00101.

142. 	

See, e.g., Lee Romney, Private Diversion Programs Are Failing
Those Who Need Help the Most, Reveal News, May 31, 2017,
available at https://www.revealnews.org/article/privatediversion-programs-are-failing-those-who-need-help-the-most/.

143. 	

CorrectiveSolutions, available at http://correctivesolutions
.org/about.

144. 	

National Corrective Group, Inc. dba CorrectiveSolutions,
“Balance Sheets as of April 30, 2012 and 2011,” contained
in proposal submitted to Pinal County, Arizona, Finance
Department on April 7, 2014 at 79-80, available at https://www
.documentcloud.org/documents/3755604-Pinal-Co-ProposalCorrective-Solutions.html#document.

145. 	

CorrectiveSolutions Monthly Activity Summary, November
2015, Report Date Dec. 29, 2015.

132. 	

Attention New Recovery Agent: Tips for Success, available at
https://www.aclu.org/sites/default/files/assets/aclu_and_
brennan_center_comment_to_cfpb_0.pdf at App. 6, Washington
County 00141.

146. 	

See chart in following subsection, “Prosecutors Contracting
with Victim Services, Inc.” See also Compl., Consumer Financial
Protection Bureau v. National Corrective Group, Inc. (D. Md.
March 30, 2015), available at http://files.consumerfinance.
gov/f/201503_cfpb_complaint-national-corrective-group.pdf.

133. 	

Id. (emphasis in original).

147. 	

134. 	

Class Cert. Ex. 3, Cavnar v. Bounceback, No. 2:14-CV-235-RMP
(E.D. Wash. June 29, 2015).

135. 	

Compl., Cavnar v. Bounceback, No. 2:14-CV-235-RMP (E.D.
Wash. July 18, 2014).

BounceBack Bracket, Bad Check Outsourcing Solutions, available
at http://bracketprograms.com/wp-content/uploads/2012/09/
Bad-Check-Outsourcing-Solutions_0612.pdf; BounceBack
Bracket, Clients Using Diversion Services: BounceBack Bracket
Diversion Clients, available at http://bracketprograms.com/
diversion-services/clients-using-diversion-services/; Class Cert.

128. 	

Turner, 564 U.S. at 441 (internal quotation marks and citations
omitted).

129. 	

See Lamar Financial Corp. v. Adams, 918 F.2d 564, 567 (5th
Circ. 1990) (holding that “a contempt order contain[ing] both
a punitive and a coercive dimension” is considered criminal
contempt for purposes of appellate review).

130. 	

131. 	

88

In United States v. North, 621 F.2d 1255 (3rd Cir. 1980), the
Third Circuit discussed a federal court’s imposition of a “hybrid
criminal contempt sentence,” which combined a fixed prison
sentence with a purge condition. Id. at 1263–64 (discussing In re
Reina, 170 F. Supp. 592 (S.D.N.Y.), aff’d sub nom. United States
v. Reina, 273 F.2d 234 (2d Cir. 1959) (per curiam), aff’d, 364 U.S.
507 (1960)). The court noted that both the Second Circuit and the
U.S. Supreme Court implicitly affirmed the sentence on appeal,
although the latter declined to squarely address whether a hybrid
criminal contempt sanction was valid. Id. at 1264; see also United
States v. Liddy, 510 F.2d 669, 676 n.29 (D.C. Cir. 1974) (noting
that the U.S. Supreme Court’s decision in Reina “affirmed” and
“impliedly approved the District Court’s ‘hybrid’ sentencing
technique,” but noting that the technique may have been cast in
doubt by a companion case).

American Civil Liberties Union

Ex. 17, Cavnar v. Bounceback, No. 2:14-CV-235-RMP (E.D. Wash.
June 29, 2015).

157. 	

Fed. Trade Comm’n, Consumer Sentinel Network Data
Book For January-December 2015 (Feb. 2016), available at
https://www.ftc.gov/system/files/documents/reports/
consumer-sentinel-network-data-book-january-december2015/160229csn-2015databook.pdf.

158. 	

Consumer Financial Protection Bureau, Annual Report 2017:
Fair Debt Collection Practices Act (March 2017), available
at https://s3.amazonaws.com/files.consumerfinance.gov/f/
documents/201703_cfpb_Fair-Debt-Collection-Practices-ActAnnual-Report.pdf.

159. 	

Consumer Financial Protection Bureau, Consumer Experiences
with Debt Collection: Findings from the CFPB’s Survey of
Consumer Views on Debt (Jan. 2017), available at http://files
.consumerfinance.gov/f/documents/201701_cfpb_DebtCollection-Survey-Report.pdf.

160. 	

CorrectiveSolutions Monthly Activity Summary, November
2015, Report Date Dec. 29, 2015. For revenue generated
by selected District Attorney offices in 2005-2008; see also
Mosi Secret, Revenues Gained by Prosecutors’ Offices in
Partnership with Private Diversion Programs, ProPublica, Mar.
2, 2009, available at https://www.propublica.org/article/
table-prosecutors-bad-check-revenues.

Fair Debt Collection Practices Act, 15 U.S.C. § 1692. Since July
2011, the Consumer Financial Protection Bureau (CFPB) has
been mandated to administer and enforce the statute. Dodd
Frank sec 1089; FDCPA sec 814; 15 USC 1962.

161. 	

Kent County Prosecutor’s Office, 2016 Annual Report (May
2017), available at https://www.accesskent.com/Courts/
Prosecutor/pdfs/Prosecutor_Annual_Report.pdf.

Fed. Trade Comm’n, Collecting Consumer Debts: The Challenges
of Change (2009), available at https://www.ftc.gov/sites/
default/files/documents/reports/collecting-consumer-debtschallenges-change-federal-trade-commission-workshop-report/
dcwr.pdf.

162. 	

U.S. Government Accountability Office, Report to Congressional
Requesters, Fair Debt Collection Practices Act Could Better
Reflect the Evolving Debt Collection Marketplace and Use
of Technology (2009), available at http://www.gao.gov/
assets/300/295588.pdf.

163. 	

Consumer Financial Protection Bureau, Annual Report 2016: Fair
Debt Collection Practices Act (March 2016), available at http://
files.consumerfinance.gov/f/201603_cfpb-fair-debt-collectionpractices-act.pdf.

164. 	

For instance, in Nebraska, where the comparatively low cost to
file a lawsuit has led to a proliferation of debt collection suits,
a bill proposing to increase the cost of filing suit in county
court by only $1 was met by strong and ultimately successful
opposition from the state’s largest debt collection company,
Credit Management Service, and its lobbyist. Paul Kiel, For
Nebraska’s Poor, Get Sick and Get Sued, ProPublica, Apr.
28, 2016, available at https://www.propublica.org/article/
for-nebraskas-poor-get-sick-and-get-sued.

165. 	

Commonwealth of Pennsylvania v. Unicredit America, Inc.,
Court of Common Pleas of Erie County, No. 14914-2010. See
also Attorney General Tom Corbett, Press Release, “Erie debt
collection company sued; accused of using bogus ‘hearings’
and fake ‘courtroom’ to collect from consumers,” Oct. 29, 2010,
available at https://web.archive.org/web/20110209134224/
https:/www.attorneygeneral.gov/press.aspx?id=5763; Lisa
Thompson, Erie Times News, “Attorney General Goes to Court
to Shut Down Erie Debt Collector,” Oct. 30, 2010, available
at https://web.archive.org/web/20110111141246/http:/
www.goerie.com:80/apps/pbcs.dll/article?AID=/20101030/
NEWS02/310309944; Ed Palattella, Erie Times News, “Son says
Erie’s Unicredit threatened to jail his mom,” March 22, 2011,
available at https://web.archive.org/web/20110526173806/
http:/www.goerie.com/apps/pbcs.dll/article?AID=/20110322/
NEWS02/303219926; State AG Sues to Shut Down Collector

148. 	

Financial Crimes Services, Check Diversion/Accountability
Program (May 28, 2009), available at https://www.leg.state
.mn.us/docs/2011/mandated/110115.pdf.

149. 	

Randy Furst, Diversion Firm Owner Chosen By County
Attorney Associated with Past Sanctions, Star Tribune,
Apr. 21, 2017, available at http://www.startribune.com/
diversion-firm-owner-chosen-by-county-attorney-associated-withpast-sanctions/420095933/.

150. 	

E.g., County of Santa Cruz District Attorney’s Office Agreement
with Victim Services, Inc., dba Victim Restitution Services, Inc.
for Check Restitution Recovery Program, Contract Schedule 1
at 12 (July 30, 2014, revised June 9, 2014), available at http://
sccounty01.co.santa-cruz.ca.us/BDS/Govstream2/Bdsvdata/
non_legacy_2.0/Minutes/2014/20140819-634/PDF/016.pdf.

151. 	

152. 	

153. 	

Ricky Young, Bad Check Program: “A Remedy for Merchants,”
San Diego Union-Tribune, Sept. 9, 2015, available at http://
www.sandiegouniontribune.com/news/watchdog/sdut-badcheck-response-2015sep09-htmlstory.html; Jeff McDonald, Bad
Check Program Spurs Lawsuit, San Diego Union-Tribune, Aug.
21, 2015, available at http://www.sandiegouniontribune.com/
news/watchdog/sdut-bad-check-program-spurs-suit-2015aug21htmlstory.html.

154. 	

Formal Opinion, American Bar Association, Prosecutors
and Debt Collection Companies (Nov. 12, 2014), available at
https://consumermediallc.files.wordpress.com/2014/12/
formalopinion469_110714.pdf (finding also that “Typically,
no lawyer in the prosecutor’s office reviews the case file to
determine whether a crime has been committed and prosecution
is warranted.”).

155. 	

See, e.g., Connecticut v. Doehr, 501 U.S. 1 (1991); Fuentes v.
Shevin, 407 U.S. 67 (1972).

156. 	

Press Release, Federal Trade Commission, “FTC Releases
Annual Summary of Consumer Complaints” (Mar. 3,
2017), available at https://www.ftc.gov/news-events/
press-releases/2017/03/ftc-releases-annual-summary-consumercomplaints; Fed. Trade Comm’n, Consumer Sentinel Network
Data Book for January-December 2016 (March 2017), available
at https://www.ftc.gov/system/files/documents/reports/
consumer-sentinel-network-data-book-january-december-2016/
csn_cy-2016_data_book.pdf. See also Fed. Trade Comm’n, The
Structure and Practices of the Debt Buying Industry (2013),
available at https://www.ftc.gov/sites/default/files/documents/
reports/structure-and-practices-debt-buying-industry/
debtbuyingreport.pdf.

A Pound of Flesh: The Criminalization of Private Debt

89

that Used Fake Courtroom, InsideArm, Nov. 4, 2010, available at
https://www.insidearm.com/news/00005555-state-ag-sues-toshut-down-collector-that/; Patrick Lunsford, Fake Courtroom
Collection Agency Head Banned from the Business, InsideArm,
Jul. 12, 2012, available at https://www.insidearm.com/
news/00029778-fake-courtroom-collection-agency-head-ban/;
WTAE-TV Pittsburgh, Team 4: Debt Collectors Accused of Fake
Courtroom, Judge, YouTube (Oct. 29, 2010), https://www
.youtube.com/watch?v=EfaNcsHJNsA.
166. 	

167. 	

Federal Trade Comm’n v. Broadway Global Master Inc., No.
212-cv-00855-JAM-GGH, Stipulated Order for Permanent
Injunction and Monetary Judgment (E.D. Cal. Sept. 10, 2015);
see also Fed. Trade Comm’n, Broadway Global Master Inc.,
Case Page (last updated Apr. 6, 2016), available at https://www
.ftc.gov/enforcement/cases-proceedings/1123215-x120020/
broadway-global-master-inc.
Compl., Federal Trade Comm’n v. Goldman Schwartz Inc., No.
413-cv-00106, (S.D. Texas Jan. 14, 2013); see also Fed. Trade
Comm’n, Goldman Schwartz Inc., Case Page (last updated Jun.
30, 2017), available at https://www.ftc.gov/enforcement/
cases-proceedings/122-3096-x130029/goldman-schwartz-inc.

168. 	

Michelle Keahey, Debt Collector Falsely Claimed Arrest Warrant
Issued, Couple Says, SE Texas Record Blog, Jan. 28, 2013,
available at http://setexasrecord.com/stories/510620378-debtcollector-falsely-claimed-arrest-warrant-issued-couple-says.

169. 	

Press Release, Office of the Attorney General of South Dakota,
“Attorney General Marty Jackley Warns of Debt Collection
Scam” (Aug. 4, 2011), available at https://atg.sd.gov/OurOffice/
Media/pressreleasesdetail.aspx?id=720.

170. 	

Lisa Lake, Is that Debt Collector for Real?, FTC Blog (Jul. 1,
2014), available at https://www.consumer.ftc.gov/blog/debtcollector-real; http://money.cnn.com/2014/11/18/news/
debt-collectors-arrest/.

171. 	

Press Release, Fed. Trade Comm’n, “Leading Debt
Collector Agrees to Pay Record $2.8 Million to Settle
FTC Charges” (Mar. 16, 2011), available at https://
www.ftc.gov/news-events/press-releases/2011/03/
leading-debt-collector-agrees-pay-record-28-million-settle-ftc.

172. 	

Compl., Consumer Financial Protection Bureau, et al., v.
Douglas MacKinnon, et al., No. 1:16-cv-00880 (W.D.N.Y. Nov.
2, 2016); available at https://www.pacermonitor.com/public/
case/19743967/Consumer_Financial_Protection_Bureau_et_
al_v_Mackinnon_et_al.

173. 	

Pseudonym used to protect identity.

174. 	

Fed. Trade Comm’n et al. v. Vantage Point Services LLC et al.,
No. 1:15-cv-00006, U.S. District Court for the Western District of
New York.

175. 	

Mary Flood, Consumers’ Lawsuits Fight Back Against Debt
Collectors, Chron, Apr. 12, 2009, available at http://www.chron
.com/business/article/Consumers-lawsuits-fight-back-againstdebt-1750675.php.

176. 	

[Name withheld to preserve anonymity] v Commonwealth
Fin Sys, 496 BR 355, 364 (Bankr. MD Pa, 2013). In Re [name
withheld], Bankruptcy No. 1-12-bk-03839-RNO. Adversary No.
1-13-ap-00076-RNO, 496 B.R. 355 (2013).

90

American Civil Liberties Union

177. 	

Turner v. Oxford Management Services, Inc. (S.D. Tex. 2008).

178. 	

Jessica Heffner, Patient Called as Part of Medical Bill Scam,
Dayton Daily News, Mar. 30, 2015, available at http://www
.daytondailynews.com/news/crime--law/patient-called-partmedical-bill-scam/0iBDZChOb0jzntsHWoNB8I/.

179. 	

Consumer Financial Protection Bureau, Everyone Has a Story,
Danieshia: Threatened With Jail, available at https://www
.consumerfinance.gov/consumer-tools/everyone-has-a-story/
danieshia-threatened-with-jail/; Tr., CFPB, Everyone Has a Story,
Danieshia, available at https://s3.amazonaws.com/files
.consumerfinance.gov/f/documents/201701_cfpb_danieshiastory-transcript.pdf.

180. 	

In re McLaughlin, No. 07-04375, 2007 WL 3229166 (Bankr. D.
Ariz. Oct. 30, 2007).

181. 	

In re Diaz, 526 B.R. 685 (Bankr. S.D. Tex. 2015).

182. 	

Gibson v. Rosenthal, Stein, and Assocs. No. 1:12-cv-2990-WSD,
2013 WL 3367255 (N.D. Ga. July 3, 2013); Gibson v. Rosenthal,
Stein, and Assocs. No. 1:12-cv-2990-WSD (N.D. Ga. June 17,
2014).

183. 	

E.g., Compl., U.S. v. Arent et al., No. 09-M-2138, (W.D.N.Y. Sept.
24, 2009), available at https://getoutofdebt.org/wp-content/
uploads/ArentComplaint.pdf; Compl., Zahoruiko v. Andrew
Metcalf Judgment Acquisitions Unlimited, et al., No. 3:15-cv-42VLB (D. Conn. Jan. 12, 2015), available at https://www
.unitedstatescourts.org/federal/ctd/106984/1-0.html.

184. 	

E.g., Leon Bayer, Fake Arrest Warrant for Unpaid Debt,
Nolo Blog, Aug. 29, 2014, available at http://blog.nolo.com/
bankruptcy/2014/08/29/fake-arrest-warrant-for-unpaid-debt/;
see sample false arrest warrants at http://blog.nolo.com/
bankruptcy/files/2014/08/Scam_Arrest_Warrant.pdf.

185. 	

See, e.g., Fed. Trade Comm’n, Goldman Schwartz Inc., Case Page
(last updated Jun. 30, 2017), available at https://www
.ftc.gov/enforcement/cases-proceedings/122-3096-x130029/
goldman-schwartz-inc; Fed. Trade Comm’n, Forensic Case
Management Services Inc. d/b/a Rumson, Bolling, & Associates,
Case Page (last updated Jan. 17, 2013), available at https://
www.ftc.gov/enforcement/cases-proceedings/112-3035/
forensic-case-management-services-inc-dba-rumson-bolling.

186. 	

See Matthew W. Ludwig, Abuse, Harassment, and Deception:
How the FDCPA Is Failing America’s Elderly Debtors, 1 Elder L.J.
135, 152, 156 (2008) (citing Senate hearings on the FDCPA and
quoting testimony regarding egregious abuses, including the
story of an elderly woman who was told that if she did not pay the
funeral expenses for her husband, the collector would get a court
order to dig up her husband’s body and repossess the casket). See
also Federal Trade Commission v. Forensic Case Management
Services, Inc. dba Rumson, Bolling & Associates, No. 2:11-cv07484-RGK (C.D. Ca.), available at https://www.ftc
.gov/enforcement/cases-proceedings/112-3035/forensic-casemanagement-services-inc-dba-rumson-bolling (FTC action that
alleged a debt collection firm threatened to desecrate the bodies
of deceased relatives, including allegedly threating to dig up a
debtors’ deceased children and hang the body from a tree or drop
them outside their door if the funeral bill remained unpaid).

187. 	

For a summary of each state’s exemption laws, see Jonathan
Sheldon, Carolyn Carter & Chi Chi Wu, Collection Actions:
Defending Consumers and their Assets 421-54 (2008).

201. 	

15 U.S.C. § 1692(a). Further, the FDCPA exempts “pretrial
diversion program[s] for alleged bad check offenders.” 15 U.S.C. §
1692(p)(a)(2)(A).

188. 	

Jonathan Sheldon, Carolyn Carter & Chi Chi Wu, Collection
Actions: Defending Consumers and their Assets 421-54 (2008).

202. 	

Cal. Civ. Code § 1788.2(c); Iowa Code Ann. § 537.7102(5); Tex. Fin.
Code § 392.301(a)(6).

189. 	

Lea Shepard, Creditors’ Contempt, 2011 BYU L. Rev. 1509, 1538
(2011).

203. 	

190. 	

Id. at 1531.

191. 	

Compl., Commw. Mass. v. Lustig, Glaser & Wilson, P.C., No.
15-3852-BLS (Mass. Superior Ct. Dec. 21, 2015), available
at http://www.mass.gov/ago/docs/consumer/lustigglaser-wilson-complaint.pdf; Press Release, Massachusetts
Attorney General, “AG Healey Sues Major Debt Collection
Law Firm Over Widespread Consumer Abuses” (Dec.
23, 2015), available at http://www.mass.gov/ago/
news-and-updates/press-releases/2015/2015-12-23-debtcollection-lawsuit.html; see also Deirdre Fernandes, AG Sues
Law Firm, Alleging Deceit, Boston Globe, available at http://
epaper.bostonglobe.com/BostonGlobe/article_popover.
aspx?guid=b7d0dce5-cdf4-4c5c-be89-b49192a0f927&source=prev.

See, e.g., Thomas v. Firestone Tire & Rubber Co., 266 S.E.2d
905 (W. Va. 1980) (holding that the West Virginia Consumer
Credit and Protection Act applies to creditors); Liggins v. May
Co., 373 N.E.2d 404, 406 (Ohio C.P. 1977) (holding that the Ohio
Consumer Sales Practices Act applies to both debt collectors
and creditors). See generally Howard J. Alperin & Roland F.
Chase, Consumer Law Sales Practices and Credit Regulation §
675 (2016) (reviewing state law and concluding that most courts
interpreting such state statutes have held that they are applicable
to both debt collection companies and the original creditors).

204. 	

See, e.g., CAL. CIV. CODE § 1788.10(e) (prohibiting a “threat
to any person that nonpayment of the consumer debt may
result in the arrest of the debtor or the seizure, garnishment,
attachment or sale of any property…, unless such action is in
fact contemplated by the debt collector and permitted by law.”);
IOWA CODE ANN. § 537.7103(1)(e) (prohibiting the making of a
“false threat that nonpayment of a debt may result in the arrest
of a person or the seizure, garnishment, attachment or sale of
property or wages of that person”); TEX. FIN. CODE § 392.301(a)
(5) (Under Texas law, “debt collector[s] may not use threats,
coercion, or attempts to coerce” that involve “threatening that
the debtor will be arrested for nonpayment of a consumer debt
without proper court proceedings.”); WASH. REVISED CODE
ANN. § 19.16.250(13) (banning several collection practices,
including attempting to collect from the debtor by using “threats
of criminal prosecution”).

205. 	

15 U.S.C. § 1692(n).

206. 	

See, e.g., Wash. Rev. Code Add. § 19.16.100(5).

207. 	

See generally Creola Johnson, Prosecuting Creditors and
Protecting Consumers: Cracking Down on Creditors that Extort
via Debt Criminalization Practices, 80 Law & Contemp. Probs. 211
(2017).

208. 	

See, e.g., Cal. Penal Code § 519 (“Fear, such as will constitute
extortion, may be induced by a threat… [t]o accuse … of any
crime”); Md. Code Ann., Crim. Law § 3-705 (“A person, with the
intent to unlawfully extort money, may not … accuse any person
of a crime or of anything that, if true, would bring the person into
contempt or disrepute”); 18 Pa. Stat. and Cons. Stat. Ann. § 2906
(“A person is guilty of criminal coercion, if, with intent unlawfully
to restrict freedom of action of another…. he threats to … accuse
anyone of a criminal offense [or] expose any secret tending to
subject any person to hatred, contempt or ridicule”); Tex. Penal
Code Ann. § 1.07(a)(9) (“‘Coercion’ means a threat, however
communicated … to accuse a person of any offense [or] to expose
a person to hatred, contempt, or ridicule”).

209. 	

Creditors and debt collectors who repeatedly request debtor’s
examinations with the sole purpose of attaining bench warrants
may also be committing the crime of extortion. Creditors and
debt collectors may respond to such allegations by claiming
that the civil contempt process is legal, and thus they lacked the
requisite intent associated with the crime of extortion. While
such arguments may be difficult to overcome, using the civil
contempt process with the purpose of coercing payments from

192. 	

Consent Judgment, Commw. Mass. v. Lustig, Glaser & Wilson,
P.C., No. 15-3852-BLS (Mass. Superior Ct. July 19, 2017),
available at http://www.mass.gov/ago/docs/consumer/0162017-07-20-lustig-final-judgment-by-consent.pdf; see also Press
Release, Massachusetts Attorney General, “AG Secures $1
Million for Consumers Exploited by Largest Debt Collection Law
Firm in Massachusetts” (July 27, 2017), available at http://www
.mass.gov/ago/news-and-updates/press-releases/2017/2017-0727-1-million-for-consumers-exploited-debt-collection.html.

193. 	

Lea Shepard, Creditors’ Contempt, 2011 BYU L. Rev. 1509, 1537
(2011).

194. 	

15 U.S.C. § 1692(d).

195. 	

15 U.S.C. § 1692(e). To bring a claim under the FDCPA, plaintiffs
must show that (1) they have been the object of a collection
activity arising from consumer debt, (2) the defendant is a debt
collector pursuant to the FDCPA definition, and (3) that the
defendant engaged in an act or omission that is prohibited by the
FDCPA. For cases applying this three-part standard, see, e.g.,
Latimore v. Gateway Retrieval, LLC, No. 1:12-CV-00386, 2013
WL 791258, at *5 (N.D. Ga. Feb. 1, 2013); Kaplan v. Assetcare,
Inc., 88 F. Supp. 2d 1355, 1360-61 (S.D. Fla. 2000); Sibley v.
Firstcollect, Inc., 913 F. Supp. 2d 469, 470 (M.D. La. 1995). See 15
U.S.C. § 1692p(a)(2)(A).

196. 	

15 U.S.C. § 1692e(4) (2006) (prohibiting debt collectors from
making “[t]he representation or implication that nonpayment of
any debt will result in the arrest or imprisonment of any person
or the seizure, garnishment, attachment, or sale of any property
or wages of any person unless such action is lawful and the debt
collector or creditor intends to take such action”).

197. 	

15 U.S.C. § 1692p(a)(2)(A).

198. 	

See 15 U.S.C. § 1692p(a)(2)(A).

199. 	

Specifically, they violate 15 U.S.C. § 1692e(1) or (9).

200. 	

Specifically, they violate 15 U.S.C. § 1692e(3)-(5).

A Pound of Flesh: The Criminalization of Private Debt

91

defendants who otherwise would not be required to pay may
constitute criminal coercion or extortion.
210. 	

211. 	

International Covenant on Civil and Political Rights,
United Nations Treaty Collection, available at
https://treaties.un.org/Pages/ViewDetails
.aspx?src=IND&mtdsg_no=IV-4&chapter=4&clang=_en.
International Covenant on Civil and Political Rights art. 9, entry
into force Mar. 23, 1976, 999 U.N.T.S. 171 [hereinafter ICCPR].
See also the Universal Declaration of Human Rights (UDHR),
G.A. Res. 217 (III) A, art. 3, Universal Declaration of Human
Rights (Dec. 10, 1948).

(Oct. 5, 2015) (finding that the rate of court judgments from
debt collection lawsuits was twice as high in mostly Black
communities as it was in mostly white communities, even
controlling for income).
226. 	

See ICCPR at art. 2; ICESCR at art 2; G.A. Res. 217 (III) A at art.
25; International Convention on the Elimination of All Forms of
Racial Discrimination, entry into force Jan. 4, 1979, 660 U.N.T.S.
195.

227. 	

Some states allow courts to order a debtor to make payments on
a debt and then hold the debtor in contempt for failing to do so,
while other jurisdictions properly recognize that this practice
amounts to unlawful imprisonment for debt. See, e.g., 735 Ill.
Comp. Stat. § 5/2-1402(c)(2) (allowing court to order a debtor
to make installment payments out of non-exempt income);
Mass. Gen. Laws ch. 224, § 16 (allowing court to order debtor
to make payments if it finds that debtor is financially able and
providing that noncompliance can be punished as contempt);
N.J. Stat. Ann. § 2A:17-64 (West) (allowing court to order debtor
to pay judgment in installments from non-exempt income);
N.Y. C.P.L.R. § 5226 (allowing court to order debtor to make
installment payments).

212. 	

Human Rights Committee General Comment 35, U.N. Doc.
CCPR/C/GC/35, at ¶ 12 (Dec. 16, 2014).

213. 	

ICCPR at art. 14.

214. 	

Human Rights Committee General Comment 32, U.N. Doc.
CCPR/C/GC/32, at ¶ 13 (Aug. 23, 2007).

215. 	

Id. at ¶ 10.

216. 	

G.A. Res. 43/173, Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment, at
principle 17 (Dec. 9, 1988).

228. 	

Pseudonym used to protect the individual’s identity.

229. 	

Pseudonym used to protect the individual’s identity.

217. 	

Rep. of the Working Group on Arbitrary Detention, Basic
Principles and Guidelines on Remedies and Procedures on the
Right of Anyone Deprived of His or Her Liberty by Arrest or
Detention to Bring Proceedings Before Court, U.N. Doc. WGAD/
CRP.1/2015, at principle 9 (May 4, 2015).

230. 	

Mariah Noble, Utah Man Jailed for Unpaid Bill Killed Himself
with Poison Rather than Stay in Jail, Policy Say, Salt Lake
Tribune, Nov. 18, 2016, available at http://www.sltrib.com/
news/4596028-155/utah-man-took-fatal-dose-of.

218. 	

International Covenant on Economic, Social and Cultural Rights,
United Nations Treaty Collection, available at
https://treaties.un.org/Pages/ViewDetails
.aspx?src=IND&mtdsg_no=IV-3&chapter=4&clang=_en.

231. 	

219. 	

Vienna Convention on the Law of Treaties, art. 18, entered into
force Jan. 27, 1980, 1155 U.N.T.S. 331.

William N. Grigg, Utah Man Dies in Police Custody – After
Being Arrested for Unpaid Medical Bills, Free Thought Blog,
Feb. 21, 2016, available at http://thefreethoughtproject.
com/warrant-issued-illegitimate-court/; Mark Shenefelt,
Box Elder Jail Inmate’s Death Raises Concerns for Justice
System, Not Foul Play, Standard Examiner, Feb. 23, 2016,
available at http://www.standard.net/Courts/2016/02/14/
Man-who-died-in-Box-Elder-jail-was-there-for-not-paying-a-debt.

220. 	

International Covenant on Economic, Social and Cultural Rights,
art. 11, entry into force Jan. 3, 1976, 993 U.N.T.S. 3 [hereinafter
ICESCR] (“The State Parties to the present Covenant recognize
the right of everyone to an adequate standard of living…”); G.A.
Res. 217 (III) A, art. 25, Universal Declaration of Human Rights
(Dec. 10, 1948). (“Everyone has the right to a standard of living
adequate for the health and well-being of himself and of his
family…”).

232. 	

Mark Shenefelt, Box Elder Jail Inmate’s Death Raises Concerns
for Justice System, Not Foul Play, Standard Examiner, Feb. 23,
2016, available at http://www.standard.net/Courts/2016/02/14/
Man-who-died-in-Box-Elder-jail-was-there-for-not-paying-a-debt.

233. 	

In FY 2016, 1,886 civil bench warrants were issued by Utah
justice court judges, and 3,945 warrants were issued by district
court judges. In 2015, 3,872 civil bench warrants were issued by
Utah district court judges and 1,610 by justice court judges. Mark
Shenefelt, Utah Courts Increase Use of Civil Bench Warrants
to Compel Debt Payments, Standard Examiner, Mar. 26, 2017,
available at http://www.standard.net/Courts/2017/03/26/
Utah-courts-increase-use-of-civil-bench-warrants-to-compel-debtpayments-jails-Tremonton-Box-Elder; Mark Shenefelt, Box Elder
Jail Inmate’s Death Raises Concerns for Justice System, Not Foul
Play, Standard Examiner, Feb. 23, 2016, available at http://www
.standard.net/Courts/2016/02/22/Box-Elder-jail-death-sparksattention-to-civil-bench-warrants.html.

234. 	

Katie Rogers, Viral Student Loan Nightmare Is Not What it
Seems, Authorities Say, New York Times, Feb. 16, 2016, available
at https://www.nytimes.com/2016/02/17/us/viral-student-loannightmare-is-not-what-it-seems-authorities-say.html?_r=2; Rob
Wile, U.S. Marshals May Have Arrest Warrants for Hundreds

221. 	

Zencka v. Lake Cnty., Cause No. 2:14-CV-371 (N.D. Ind. May 24,
2016).

222. 	

University of Stellenbosch Legal Aid Clinic (Clinic) & Others
v Minister of Justice and Correctional Services & Others;
Association of Debt Recovery Agents NPC v Clinic & Others;
Mavava Trading 279 (Pty) Ltd & Others v Clinic & Others [2016]
ZACC 32.

223. 	

U.N. Guiding Principles on Business and Human Rights, U.N.
Doc A/HRC/17/31, at ¶¶ 13, 22 (June 16, 2011).

224. 	

Id. at ¶ 3.

225. 	

See, e.g., Paul Kiel & Annie Waldman, The Color of Debt: How
Collection Suits Squeeze Black Neighborhoods, ProPublica

92

American Civil Liberties Union

235. 	

236. 	

Who Haven’t Paid Their Student Loans, Splinter, Feb. 18, 2016,
available at http://fusion.net/u-s-marshals-may-have-arrestwarrants-for-hundreds-who-1793854803.

256. 	

In re Gray, 567 B.R. 841 (Bankr. W.D. Wash. 2017).

257. 	

Pseudonym used to protect the individual’s identity.

Jorge Ramos, Rob Wile, Dan Lieberman, One Texas Judge Is
Responsible for Most of the Student Debt-Related Arrests in America,
Fusion, Apr. 14, 2016, available at http://fusion.net/story/291271/
student-debt-arrests-houston.

258. 	

Pseudonym used to protect the individual’s identity.

259. 	

[Name redacted to preserve anonymity], Petition, Case No. 1250325, (Bankr. E.D. Mo. Oct. 25, 2012).

260. 	

Pseudonym used to protect the individual’s identity.

261. 	

[Name redacted to preserve anonymity] v. Caldwell, No. 14-0967,
2015 WL 1281022 (W.D. La. Mar. 20, 2015).

262. 	

Pseudonym used to protect the individual’s identity.

263. 	

Compl., Cavnar v. Bounceback, No. 2:14-CV-235-RMP (E.D. Wash.
July 18, 2014).

264. 	

Terrell Marshall Law Group PLLC, Bounceback, Inc. Sued for
Allegedly Using Seal and Letterhead of Washington Prosecutors
to Collect Debts, Case Page, available at http://terrellmarshall.
com/bounceback-inc-sued-for-allegedly-using-seal-and-letterhead-ofwashington-prosecutors-to-collect-debts/.

265. 	

Pseudonym used to protect the individual’s identity.

266. 	

Del Campo v. Am. Correctives Servs. Inc., 718 F. Supp. 2d 1116
(N.D. Cal. 2010); Dan Nephin, Calif. Debt Firm Settles Pa. ClassAction Suit, San Diego Union-Tribune, Nov. 3, 2009, available at
http://www.sandiegouniontribune.com/sdut-calif-debt-firm-settlespa-class-action-suit-2009nov03-story.html.

267. 	

Am. Compl., Smith et al. v. Levine Leichtman Capital Partners,
Inc. et al., No. 3:10-cv-00010, No. 3:10-cv-00010, 2010 WL
3500442 (N.D.Cal. Dec. 31, 2009); Jeff Gelles, Lawsuits Were
Stymied, But CFPB Finally Puts Halt to Rent-a-D.A. Scheme, The
Inquirer, Apr. 5, 2015, available at http://www.philly.com/philly/
business/20150405_Lawsuits_were_stymied__but_CFPB_finally_
puts_halt_to_rent-a-D_A__scheme.html.

268. 	

Am. Compl., Breazeale et al., v. Victim Services, Inc., d/b/a
CorrectiveSolutions, National Corrective Group, Inc. d/b/a
CorrectiveSolutions, and Mats Jonsson, No. 14-05266 (N.D. Cal.
Feb. 6, 2015), available at http://terrellmarshall.com/wp-content/
uploads/2016/08/Complaint.pdf; Compl., Breazeale et al. v. Victim
Services, Inc., d/b/a CorrectiveSolutions, National Corrective
Group, Inc. d/b/a CorrectiveSolutions, and Mats Jonsson, No.
3:14-cv-05266, 2014 WL 6997607 (N.D.Cal. Dec. 1, 2014), available
at http://guptawessler.com/wp-content/uploads/2014/12/FiledComplaint-with-Exhibits.pdf.

269. 	

[Name redacted to preserve anonymity] v. Nat’l Corrective Grp.,
Inc., No. 3:10-CV-0175 (M.D. Pa.); Joe McDonald, DA’s “Bad Check”
Collection Program Lands Jarbola in Federal Court Lawsuit, The
Times Tribune, Sept. 3, 2010, available at http://thetimes-tribune.
com/news/da-s-bad-check-collection-program-lands-jarbola-infederal-court-lawsuit-1.989106.

270. 	

Am. Compl., Smith et al. v. Levine Leichtman Capital Partners,
Inc. et al., No. 3:10-cv-00010, No. 3:10-cv-00010, 2010 WL 3500442
(N.D.Cal. Dec. 31, 2009); Mosi Secret, Bounced Checks; How
Local District Attorneys Get a Cut of the Debt Collection Business,
ProPublica, Mar. 2, 2009, available at https://www.propublica.
org/article/bounced-checks-how-local-das-get-a-cut-of-thedebt-collection-business; Drew Griffin & David Fitzpatrick,
Bounced-check Collection Deals Draw Fire, CNN, Mar. 2, 2009,

Michael Parks, Operation Anaconda Squeeze Leads to Arrests of
Debtors in Minnesota, Student Life Blog (Feb. 21, 2003), available
at http://www.studlife.com/archives/News/2003/02/21/
OperationAnacondaSqueezeleadstoarrestsofdebtorsinMinnesota.

237. 	

See U.S. v. Winford P. Aker, Case 4:06-cv-03788 (S.D. Tex.).

238. 	

Katie Rogers, Viral Student Loan Nightmare Is Not What
it Seems, Authorities Say, New York Times, Feb. 16, 2016,
available at https://www.nytimes.com/2016/02/17/us/
viral-student-loan-nightmare-is-not-what-it-seems-authoritiessay.html?_r=1; Noah Feldman, Shirking Your Student Loan
Shouldn’t End in Handcuffs, Bloomberg, Feb. 18, 2016, available
at https://www.bloomberg.com/view/articles/2016-02-18/
shirking-your-student-loan-shouldn-t-end-in-handcuffs.

239. 	

Jorge Ramos, Rob Wile, Dan Lieberman, One Texas Judge Is
Responsible for Most of the Student Debt-Related Arrests in America,
Fusion, Apr. 14, 2016, available at http://fusion.net/story/291271/
student-debt-arrests-houston/.

240. 	

ACLU interview with Tracie Mozie.

241. 	

Pseudonym used to protect the individual’s identity.

242. 	

Pseudonym used to protect the individual’s identity.

243. 	

Pseudonym used to protect the individual’s identity.

244. 	

Pseudonym used to protect the individual’s identity.

245. 	

[Name redacted to preserve anonymity] v. Grace Whitney
Properties, Ind. Ct. App., Case No. 82A04-1003-SC-177, Nov. 2010.

246. 	

Zions First National Bank v. [name redacted to protect identity],
No. 13-2-01488-1 (Sup. Ct. Wash. Lewis Cty. 2014).

247. 	

Pseudonym used to protect the individual’s identity.

248. 	

Pseudonym used to protect the individual’s identity.

249. 	

Pseudonym used to protect the individual’s identity.

250. 	

State v. [name redacted to preserve anonymity], No. E2015-02213CCA-R3-CD, 2017 WL2117029 (Tenn. Crim. App. May 15, 2017).

251. 	

Pseudonym used to protect the individual’s identity.

252. 	

Pseudonym used to protect the individual’s identity.

253. 	

Pac. Fin. Corp. v. [name redacted to preserve anonymity], No. 050009-GA, 2008 WL 5381895 (N. Mar. I. Dec. 19, 2008).

254. 	

Pseudonym used to protect the individual’s identity.

255. 	

[Name redacted to preserve anonymity] v. Dr. Auto Care LLC, Case
No. 10-34826 (Bankr N.D. Ohio March 24, 2011).

A Pound of Flesh: The Criminalization of Private Debt

93

available at http://www.cnn.com/2009/US/03/02/siu.bad
.checks/index.html?_s=pm:us.
271. 	

Am. Compl., Smith et al. v. Levine Leichtman Capital Partners,
Inc. et al., No. 3:10-cv-00010, No. 3:10-cv-00010, 2010 WL 3500442
(N.D.Cal. Dec. 31, 2009); Mosi Secret, Bounced Checks; How
Local District Attorneys Get a Cut of the Debt Collection Business,
ProPublica, Mar. 2, 2009, available at https://www.propublica
.org/article/bounced-checks-how-local-das-get-a-cut-of-the-debtcollection-business.

272. 	

Id.

273. 	

Am. Compl., Smith et al, v. Levine Leichtman Capital Partners,
Inc. et al., No. 3:10-cv-00010, 2010 WL 3500442 (N.D.Cal. Dec. 31,
2009), available at http://www.checkrestitution.com/documents/
NCGComplaint010410.pdf.

282. 	

Fed. R. Bankr. P. 2005.

283. 	

See In re TAAF, LLC, No. 10-00171-8-RDD, 2010 WL 964240
(Bankr. E.D.N.C. Mar. 10, 2010) (exercising authority under this
rule to incarcerate a debtor for over 30 days). See also In re R&D
Contractors, Inc., No. 09-68035-JB, 2009 WL 6498517 (Bankr.
N.D. Ga Dec. 1, 2009); In re Butler Innovative Solutions, Inc., No.
08-00065, 2008 WL 5100185 (Bankr. D.D.C. July 25, 2008); In re
Continuum Care Services, Inc., 374 B.R. 692 (Bankr. S.D. Fla. 2007).

284. 	

Alaska R. Civ. P. 69.

285. 	

Alaska R. Civ. P. 37(d).

286. 	

Alaska R. Civ. P. 90.

287. 	

Ariz. Rev. Stat. Ann. § 12-1631.

274. 	

Pseudonym used to protect the individual’s identity.

288. 	

Ariz. Rev. Stat. Ann. § 12-1556.

275. 	

Denise Grollmus, How Debt Collectors Get Away with Terrorizing
Consumers—With the Blessing of Public Officials, LA Weekly,
Jan. 24, 2013, available at http://www.laweekly.com/news/
how-debt-collectors-get-away-with-terrorizing-consumers-with-theblessing-of-public-officials-2612718.

289. 	

Ark. R. Civ. P. 69.

290. 	

Ark. R. Civ. P. 37.

291. 	

Cal. Civ. Code §§ 708.170, 491.160(a), 1993(a); Order to Produce
Statement of Assets and to Appear for Examination, The Judicial
Branch of California, http://www.courts.ca.gov/documents/
sc134.pdf.

292. 	

Order to Appear for Examination, The Judicial Branch of
California, http://www.courts.ca.gov/documents/ej125.pdf.

293. 	

Colo. R. Civ. P. 69(e)(2).

294. 	

Conn. Gen. Stat. § 13-20.

295. 	

Del. R. Civ. P. 69.

296. 	

Del. R. Civ. P. 37(d).

297. 	

Del. Code. Ann. tit. 10, § 9506.

298. 	

Fla. R. Civ. P. 1.560.

299. 	

Fla. Stat. Ann. § 56.29(7); Fla. R. Civ. P. 1.380.

300. 	

Ga. Code Ann. § 9-11-69.

301. 	

Ga. Code Ann. § 9-11-37(d)(1).

302. 	

Haw. R. Civ. P. 69.

303. 	

Haw. R. Civ. P. 37(d).

304. 	

Haw. Rev. Stat. Ann. § 654-4.

305. 	

Haw. Rev. Stat. Ann. § 710-1077(6).

306. 	

Idaho Code Ann. § 11-104.

307. 	

Some courts require creditors to first file motions to compel before
issuing the body attachment order. CAO CvPi 10-5 Instructions for
Judgment Debtor Examinations, Court Assistance Office, State of
Idaho Judicial Branch, available at https://courtselfhelp.idaho.gov/
other-misc-civil# (found under Enforcing Civil Judgments).

308. 	

735 Ill. Comp. Stat. Ann. 5/2-1402.

276. 	

Pseudonym used to protect the individual’s identity.

277. 	

Declaration in support of plaintiff’s motion for summary judgment,
[name redacted to preserve anonymity] et al. v. Henry Craighead,
No. 2:05-cv-01304-WBS-GGH (E.D. Cal. April 23, 2007).

278. 	

Ex parte Robinson, 86 U.S. 505, 510 (1874).

279. 	

Fed. R. Civ. P. 37(b), 45(g).

280. 	

Fed. R. Civ. P. 70(e). Before holding a party in civil contempt, the
Ninth Circuit, for example, requires that the moving party show
by clear and convincing evidence that the contemnor has violated
a specific and definite order of the court. The contemnor must
then demonstrate that they took every reasonable step to comply
and articulate why compliance was impossible. If they fail to meet
this burden, then the court will uphold the contempt finding. See
Go-Video, Inc. v. Motion Picture Ass’n of Am, 10 F.3d 693, 695 (9th
Cir. 1993); Sekaquaptewa v. MacDonald, 544 F.2d 396, 404 (9th Cir.
1976); Vertex Distributing v. Falcon Foam Plastics, Inc., 689 F.2d
885, 889 (9th Cir. 1982); Donovan v. Mazzola, 716 F.2d 1226, 1240
(9th Cir. 1983).

281. 	

94

Congress and the Supreme Court have not resolved whether the
use of contempt authority by non-Article III bankruptcy courts
raises constitutional concerns. However, bankruptcy courts have
exercised their contempt power under statutory authority and
the court’s inherent powers. Int’l Union, United Mine Workers
of Am. v. Bagwell, 512 U.S. 821, 828 (1994). Section 105 of the
Bankruptcy Code allows bankruptcy courts to “issue any order,
process, or judgment that is necessary or appropriate to carry out
the provisions of” the Bankruptcy Code. 11 U.S.C. § 105(a). Courts
have interpreted this provision as including the power to impose
sanctions for contempt. See, e.g., In re Hardy, 97 F.3d 1384, 189-90
(11th Cir. 1996); In re Walters, 868 F.2d 665, 669 (4th Cir. 1989);
In re Hercules Enterprises, Inc., 387 F.3d 1024, 1027 (9th Cir. 2004);
In re Dyer, 322 F.3d 1178, 1191 (9th Cir. 2003). Further, bankruptcy
courts have contempt authority pursuant to their inherent power.
See, e.g., In re Mroz, 65 F.3d 1567, 1574075 (11th Cir. 1995).
American Civil Liberties Union

309. 	

Kelly M. Greco & Stephanie R. Hammer, No More “Debtors’
Prison”: Greater Notice, Protections for Judgment Debtors, 101 Ill.
B. J. 134 (2013).

340. 	

Neb. Rev. Stat. Ann. § 25-1566.

341. 	

Nev. Rev. Stat. Ann. § 21.270.

310. 	

Ind. R. Trial P. 69(E).

342. 	

N.H. Sup. Ct. Civ. R. 52(a).

311. 	

Ind. Code Ann. § 34-47-4-2.

343. 	

N.H. Rev. Stat. Ann. § 524:6-a.

312. 	

Ind. R. Trial P. 64(A).

344. 	

N.H. Sup. Ct. Civ. R. 52(b).

313. 	

Iowa Code Ann. § 630.11.

345. 	

N.J. Stat. Ann. § 4:59-1(f).

314. 	

Kan. Stat. Ann. § 60-2419.

346. 	

N.J. Stat. Ann. § 6:-7(2)(e)(3).

315. 	

Ky. Rev. Stat. Ann. § 426.382.

347. 	

N.J. Stat. Ann. § 6:-7(2)(g).

316. 	

Ky. Rev. Stat. Ann. § 425.316.

348. 	

N.J. Stat. Ann. § 6:-7(2)(i); N.J. Stat. Ann. § 4:59-1(f).

317. 	

La. Code Civ. Proc. Ann. art. 2451.

349. 	

N.Y. C.P.L.R. 5224.

318. 	

La. Code Civ. Proc. Ann. art. 2456.

350. 	

N.Y. C.P.L.R. 2308.

319. 	

Me. Rev. Stat. Ann. tit. 14, §§ 3134, 3136.

351. 	

N.C. Gen. Stat. Ann. § 5A-21.

320. 	

Me. Rev. Stat. Ann. tit. 14, § 3135.

352. 	

321. 	

Md. Code. Ann., Civ. § 3-633.

322. 	 Id. See also Ramsay v. Sawyer Prop. Mgmt., 948 F.Supp.2d 525
(D. Md. 2013) (detailing the contempt process under Maryland
state law for judgment debtors).

Ohio Rev. Code Ann. § 2333.19. See, e.g., Collecting on Judgment,
Garfield Heights Municipal Court, https://www.ghmc.org/
small-claims/collecting-on-judgment/debtors-exam; General
Provisions, Muskingum County Court, available at http://www
.muskingumcountycourt.org/pdf/courtRules.pdf.

353. 	

Okla. Stat. tit. 12, § 842.

323. 	

Mass. Gen. Laws Ann. ch. 224, § 18.

354. 	

Okla. Stat. tit. 12, § 68.

324. 	

Mass. Gen. Laws Ann. ch. 224, § 21.

355. 	

Or. Rev. Stat. Ann. § 18.265.

325. 	

Mich. Comp. Laws. Ann. § 600.6110; Mich. Comp. Laws Ann. §
2.621(A).

356. 	

Or. Rev. Stat. Ann. § 18.270.

357. 	

Pa. R. Civ. P. 3117.

326. 	

Minn. Stat. Ann. § 550.011.
358. 	

Pa. R. Civ. P. 1910.13-1.

327. 	

Minn. Stat. Ann. § 588.04.
Miss. Code Ann. § 13-1-261.

359. 	

R.I. R. Civ. P. 69.

328. 	

Id.

360. 	

329. 	

S.C. R. Civ. P. 69.

Miss. R. Civ. P. 37(d).

361. 	

330. 	

S.C. R. Civ. P. 37(d).

Miss. Code Ann. § 9-1-17.

362. 	

331. 	

S.C. Code Ann. § 15-39-490.

363. 	

332. 	

Mo. R. Civ. P. 76.27.

S.C. Code Ann. § 15-39-320.

364. 	
333. 	

Mo. R. Civ. P. 76.28.

S.C. Code Ann. § 15-17-20.

Mont. Code Ann. § 25-14-101.

365. 	

334. 	

S.C. Code Ann. § 15-17-10.

Mont. R. Civ. P. 37(d).

366. 	

Tenn. R. Civ. P. 69.03.

335. 	
336. 	

Mont. Code Ann. § 3-1-520.

367. 	

Tenn. R. Civ. P. 37.02, 64.

Mont. Code Ann. § 3-1-518.

368. 	

Tex. Civ. Prac. & Rem. Code Ann. § 31.002.

337. 	

369. 	

Utah R. Civ. P. 64.

370. 	

Supplemental Proceeding, Washington City Justice Court,
available at http://new.washingtoncity.org/court/forms/
SUPPLEMENTALPROCEEDING.pdf.

338. 	Mont. Code Ann. § 25-13-102; see also Mont. Code Ann. § 2514-301 – 25-14-312.
339. 	

Neb. Rev. Stat. Ann. § 25-1565.

A Pound of Flesh: The Criminalization of Private Debt

95

371. 	

Vt. R. Small Claims P. 8(a).

372. 	

Vt. R. Small Claims P. 8(c).

373. 	

Vt. Stat. Ann. tit. 12, § 123.

374. 	

Va. Code Ann. § 8.01-506.

375. 	

Va. Code Ann. § 8.01-508.

376. 	

Wash. Rev. Code Ann. § 6.32.010.

377. 	

Wis. Stat. Ann. § 799.26.

378. 	

Wis. Stat. Ann. §§ 816.06, 816.03.

379. 	

Wis. Stat. Ann. § 425.113.

380. 	

Wis. Stat. Ann. §§ 816.05, 785.02.

381. 	

Application for Bench Warrant, Manitowoc County WI, available
at http://www.co.manitowoc.wi.us/media/2292/civil-benchwarrantapplication-for-bench-warrant.pdf.

382. 	

N. Mar. I. R. Civ. P. 69.

383. 	

7 N. Mar. I. Code § 4206.

384. 	

N. Mar. I. R. Civ. P. 37(b)(1); N. Mar. I. R. Civ. P. 45(e).

385. 	

7 N. Mar. I. Code § 4208.

386. 	

P.R. R. Civ. P. 51.4.

387. 	

P.R. R. Civ. P. 56.8.

388. 	

D.C. Code Ann. § 69-I(b).

96

American Civil Liberties Union