Consumer groups fear debtors' prisons making a resurgence
When a warrant for his arrest arrived at his mother's house, Bryan Bookman went to the district court in Essex, Md., to clear up the matter.
"That's when I was handcuffed and shackled, right on the spot, like I was a common criminal," said Bookman, who didn't have the money to post bail and spent the night in the Baltimore County Jail in Towson, Md.
His crime? Failure to show up in court for a small claims case.
Debtors' prison, where people are incarcerated for owing money, seems like something out of another century. But consumer advocates say Bookman experienced a modern-day version in Maryland. When people with even small judgments against them fail to show up in court as ordered, the creditor can ask the judge to issue a so-called body attachment that allows the defendant to be arrested.
In the fiscal year ended June 30, 1,830 body attachments were issued by Maryland courts handling small claims of up to $5,000, according to the Maryland Consumer Rights Coalition. And 39 defendants were incarcerated, including one person who spent 14 days in jail, the group reported.
"It's a de facto debtors' prison," said Marceline White, the coalition's executive director.
Most states permit body attachments and use them in a similar way to pursue consumers for small debts, she added.
But creditors and others say consumers aren't arrested for unpaid bills but for repeatedly ignoring court orders. Debtors easily can avoid arrest just by showing up in court, they say.
In Maryland, the process works like this:
A creditor wins a judgment against a consumer to collect on a debt. The creditor then asks the judge to bring the defendant into court to answer questions about available assets or employment so wages can be garnished. If the consumer fails to show up, the court may issue another summons to determine why the person shouldn't be held in contempt. And if the defendant is a no-show again, the creditor can ask the judge to issue a body attachment.
When defendants are arrested, a judge or commissioner might release them or set a bond. Defendants too poor to pay the bond end up in jail.
"People who owe money to creditors - guess what - they don't have money," said Peter Holland, who runs the Consumer Protection Clinic at the University of Maryland School of Law. "They have fallen on hard times. They are elderly. They are living on a fixed income. They are sick. They are jobless. Is it any surprise they are spending a night in jail because they don't make bail?"
Maryland lawmakers recently considered legislation that would prevent people from being arrested for failing to appear in court in small claims cases. The Maryland Bankers Association, the Maryland-DC Creditors Bar Association Inc. and the state judiciary all opposed it.
"No one is incarcerated for failure to pay a debt," said Kathleen Murphy, president of the bankers group. But "what we can't support is taking away the court's right to exercise some remedy when the judgment debtor ignores an order to appear."
Consumer advocates say no one is suggesting people should ignore court orders.
But in some cases, consumers might not be aware they have a court date because they moved and didn't receive the notice, advocates said. Sometimes consumers are pursued by debt collectors for money they don't owe or no longer recognize because the debt has been sold and resold so many times, advocates said.
Or defendants often are confused by court notices, particularly if they aren't proficient in English.
Jacob Ouslander, a staff attorney of Legal Aid in Baltimore, said that his group last year helped a Korean immigrant in Howard County who was arrested in a case involving a $1,600 judgment against her more than 10 years ago. Her former landlord continued to pursue the judgment by having her repeatedly summoned to court, Ouslander said, even though she had no assets and her sole income was Social Security - which is protected from creditors.
Because of her limited English and confusion over the repeated notices, the client missed a hearing, and the landlord requested a body attachment, he said. She was arrested at her home and later released after a relative posted bail.
Holland of the Consumer Protection Clinic noted that only a small number of creditors and debt collectors routinely resort to body attachments in small claims court cases, where the rules of evidence are more informal.
"The question is: Should you deprive someone of personal liberty when the underlying offense is based on a small claim based on very relaxed proof?" he said.
Of the 1,830 body attachments issued by Maryland's small claims courts last fiscal year, 222 were in the Baltimore City district, where one defendant spent the night in jail, according to the Maryland Consumer Rights Coalition.
But 778 orders, or 43 percent, were issued in Baltimore County. Of those, 27 defendants were incarcerated, the group found.
It's up to judges to issue body attachments, and consumer advocates and legal experts say they don't know why their use is far more prevalent in Baltimore County.
One of those county residents arrested last year was Bookman.
The 26-year-old said he had been working at a distribution center a few years ago when he leased an apartment in Essex. But after a few months, he was out of work and struggling to meet the rent, which ballooned with late fees. He moved back in with his mother near the end of his lease and figured the security deposit was more than enough to cover any rent owed, Bookman said.
But the matter didn't end there. His landlord, Sawyer Property Management of Maryland, received a $2,616 judgment against him in 2010.
Bookman said he doesn't recall receiving all the notices in his case, and by the time he responded, the judge had already ruled against him. He still didn't have a steady job to pay the debt.
Creditors can ask for a hearing where debtors must disclose their ability to pay. If the latter fail to show up, it's considered contempt, and a warrant is issued. According to Brent Johnson of the Utah State Courts, it's rare for someone to be jailed on these warrants, but it could happen. "The numbers would be low and the arrests would be based on repeated disobedience to the court's order." He added that Utah courts don't keep records on how many people are actually arrested.