Debtors' prison
A debtors' prison is a prison for people who are unable to pay debt. Until the mid-19th century, debtors' prisons were a common way to deal with unpaid debt in Western Europe. Destitute people who were unable to pay a court-ordered judgment would be incarcerated in these prisons until they had worked off their debt via labour or secured outside funds to pay the balance. The product of their labour went towards both the costs of their incarceration and their accrued debt. Increasing access and lenience throughout the history of bankruptcy law have made prison terms for unaggravated indigence obsolete over most of the world.
Since the late 20th century, the term debtors' prison has also sometimes been applied by critics to criminal justice systems in which a court can sentence someone to prison over willfully unpaid criminal fees, usually following the order of a judge. For example, in some jurisdictions within the United States, people can be held in contempt of court and jailed after willful non-payment of child support, garnishments, confiscations, fines, or back taxes. Additionally, though properly served civil duties over private debts in nations such as the United States will merely result in a default judgment being rendered in absentia if the defendant willfully declines to appear by law, a substantial number of indigent debtors are legally incarcerated for the crime of failing to appear at civil debt proceedings as ordered by a judge. In this case, the crime is not indigence, but disobeying the judge's order to appear before the court. Critics argue that the "willful" terminology is subject to individual mens rea determination by a judge, rather than statute, and that since this presents the potential for judges to incarcerate legitimately indigent individuals, it amounts to a de facto "debtors' prison" system.
In Canada, failure to pay a criminal fine in full by the due date results in "imprisonment in default" for a term calculated by dividing the debt by 8 hours per day at the minimum wage. For civil debts in British Columbia, a debtor may be jailed in contempt of court for defaulting on a required payment, and time spent in prison does not offset the debt.
History
Medieval Europe
During Europe's Middle Ages, debtors, both men and women, were locked up together in a single, large cell until their families paid their debt. Debt prisoners often died of diseases contracted from others interned in debtors' prison for many years. Some debt prisoners were released to become serfs or indentured servants until they paid off their debt in labor.Medieval Islamic Middle East
Imprisonment for debt was also practised in Islam. Debtors who refused to pay their debts could be detained for several months in order to exert pressure on them. If they proved insolvent, they were released before being placed under legal guardianship.By region
Canada
Council of Europe
Article 1 of Protocol 4 of the European Convention on Human Rights prohibits the imprisonment of people for breach of a contract. Turkey has signed but never ratified Protocol 4.France
Debtor's prison, both for private and State debt, was common in Ancien Régime France. It was suppressed during the French Revolution, but later reinstated. The debtor's prison for civil debts was abolished in 1867.France still allows for contrainte judiciaire, ordered by a judge, for persons unwilling to pay court-ordered fines as part of a judicial sentence. Older, underage and unsolvable persons are exempted from the contrainte. Though France has a rule that no definite proof is required to prove someone guilty of something but a set of proof, thus it’s only required that it’s likely someone is willfully not paying his fine rather than having to prove what exact money he does own, this can lead to someone insolvent being sentenced for being unable to pay his fine as soon as a small mismatch exists between the money being spent and the money on the tax return.
Its length is limited following the amount of the fine and aims to pressure the debtor to pay his fines, consequently the owed money stays owed to the State. After serving a contrainte, the debt or fine must still be paid.
Germany
In the late Middle Ages, and at the beginning of the modern era, public law was codified in Germany. This served to standardize the coercive arrest, and got rid of the many arbitrary sanctions that were not universal. In some areas the debtor could sell or redistribute their debt.In most of the cities, the towers and city fortifications functioned as jails. For certain sanctions there were designated prisons, hence some towers being called debtors' prison. The term Schuldturm, outside of the Saxon constitution, became the catchword for public law debtors' prison.
In the early modern era, the debtor's detainment or citizen's arrest remained valid in Germany. Sometimes it was used as a tool to compel payment, other times it was used to secure the arrest of an individual and ensure a trial against them in order to garnish wages, replevin or a form of trover. This practice was particularly disgraceful to a person's identity, but had different rules than criminal trials. It was more similar to the modern enforcement of sentences e.g. the debtor would be able to work off their debt for a certain number of days, graduated by how much they owed.
The North German Confederation eliminated debtors' prisons on May 29, 1868.
Netherlands
In Dutch law gijzeling can be ordered by a judge when people refuse to witness, or don't pay off their fines or debts. The imprisonment does not cancel the due amount and interest.England and Wales
In England during the 18th and 19th centuries, 10,000 people were imprisoned for debt each year. A prison term did not alleviate a person's debt, however; an inmate was typically required to repay the creditor in-full before being released. In England and Wales, debtors' prisons varied in the amount of freedom they allowed the debtor. With a little money, a debtor could pay for some freedoms; some prisons allowed inmates to conduct business and to receive visitors; others even allowed inmates to live a short distance outside the prisona practice known as the 'Liberty of the Rules'and the Fleet even tolerated clandestine 'Fleet Marriages'.File:The Ancient South Gate and the Prison, Exeter.jpg|thumb|left|The Ancient South Gate and the Prison, Exeter by Thomas Burnett Worth circa 1880. The work depicts the South Gate in Exeter and the city prison which was demolished in 1819. A man under the archway, dressed in green coat and top hat, places something into a shoe which is suspended on string by two men from a window above. It alludes to the story about a room in the Keeper's house which came to be known as 'the shoe', according to the prison reformer James Neild who visited South Gate prison in 1806.
Life in these prisons, however, was far from pleasant, and the inmates were forced to pay for their keep. Samuel Byrom, son of the writer and poet John Byrom, was imprisoned for debt in the Fleet in 1725, and in 1729 he sent a petition to his old school friend, the Duke of Dorset, in which he raged against the injustices of the system. Some debtor prisoners were even less fortunate, being sent to prisons with a mixture of vicious criminals and petty criminals, and many more were confined to a single cell.
The father of the English author Charles Dickens was sent to one of these prisons, which were often described in Dickens's novels. He became an advocate for debt prison reform, and his novel Little Dorrit dealt directly with this issue.
The Debtors' Act 1869 limited the ability of the courts to sentence debtors to prison, but it did not entirely prohibit them from doing so. Debtors who had the means to pay their debt, but did not do so, could still be incarcerated for up to six weeks, as could those who defaulted on debts to the court. Initially, there was a significant reduction in the number of debtors imprisoned following the passage of the Debtors' Act 1869. By 1870, the total number of debtors imprisoned decreased by almost 2,000, dropping from 9,759 in 1869 to 6,605 in 1870. However, by 1905 that number had increased to 11,427.
Some of London's debtors' prisons were the Coldbath Fields Prison, Fleet Prison, Giltspur Street Compter, King's Bench Prison, Marshalsea Prison, Poultry Compter, and Wood Street Counter. The most famous was the Clink prison, which had a debtor's entrance in Stoney Street. This prison gave rise to the British slang term for being incarcerated in any prison, hence "in the clink". Its location also gave rise to the term for being financially embarrassed, "stoney broke".
Scotland
Imprisonment for the non-payment of debt was competent at Scots common law, but the effect of imprisonment for such stood in marked contrast to the position in England even after the execution of the Treaty of Union in 1707. As Lord Dunedin observed in 1919, it was 'in direct contradistinction to the view of the law in England, that imprisonment was in no sense a satisfaction of the debt'; the purpose for imprisonment for debt was not to discharge the obligation to pay, but rather to act as a compulsitor to force the debtor into revealing any hidden assets. The Scots law allowing the imprisonment of debtors was grounded in large part by an Act of Sederunt of 23 November 1613, which introduced the process of 'horning' whereby the creditor would demand the payment of the debt by a certain date. If the debtor did not satisfy the payment of the debt within this stipulated time-period, the creditor could have the debtor 'put to the horn' by a messenger-at-arms. The execution of horning would have to be registered in the General Register of Hornings in Edinburgh. On registration, a warrant for the arrest of the debtor could then be issued. The formal process of 'horning' was not formally abolished until the passing of section 89 of the Debtors Act 1987, though in practice imprisonment for the non-payment of debts had ceased to be relevant in Scotland since the passing of section 4 of the Debtors Act 1880. Imprisonment remains competent in cases in which a court order, or order ad factum praestandum is breached by a debtor.While imprisonment for debt was competent in Scots law, it was provided that debtors who were within the bounds of Holyrood Park were exempt, and accordingly, till the abolition of imprisonment for debt, many debtors lived in lodgings within the bounds of the park. Such people were subject to the Bailie of the Park, who had power, in certain cases, to imprison them himself, in the Abbey Jail.