The History of Debtors’ Prisons
by Sage Cotten
The famous writer Charles Dickens, author of timeless classics like The Adventures of Oliver Twist and A Christmas Carol, spent a key part of his childhood in and around London’s infamous Marshalsea prison. Not for a crime he committed, but for a debt of £40 and 10 shillings his father owed to their local baker, John Kerr.
“The 12-year-old Charles was taken out of school and sent to work at a boot-blacking factory, earning six shillings a week to help support the family,” notes David Perdue, a board-member of the American Friends of the Charles Dickens Museum on the organization’s website. “This traumatic experience was a defining moment in his life.”
Dickens would later wonder, “How could I have been so easily cast away at such an age?”
Unfortunately for Dickens and countless others, the penalty for the poor when they could not pay off a debt was imprisonment. To find out why most western nations made this punishment illegal, it is important to look at two things: how these prisons operated and what they were like.
The first debtors’ prisons in the Americas were extensions of pre-existing English law, applied to the colonies. As early as the 1630’s, communities were deciding the punishments for the insolvent, regardless of whether the debt was from taxes or a private matter.
According to the Centre for Research on Globalization, “In 1641, the [Massachusetts] courts ruled that ‘anyone who failed to pay a private debt could be kept in jail at his own expense until the debt was paid.’ Laws like these resulted in people dying in prisons when they were unable to pay off their debts.”
In this time period, it was commonplace for inmates to bring their family with them. This led to entire communities springing up inside of prisons. Even children would accompany their parents to the debtors’ jail. Occasionally allowed to seek employment in the direct vicinity of the prison, the criminals would often trade with guards or other inmates for services.
In the early days, “incarceration wasn’t seen as a punishment, but instead something that came before punishment. When one was convicted, they were executed, fined, tortured, or banished,” said the Reform Project. In the 1700’s, as incarceration became more of a serious punishment, “legislatures wouldn’t agree to finance criminal institutions, which caused for the managers of these institutions to create a more acceptable environment in such industries. Employment rates for prisoners declined, and because they didn’t have the necessary funds, prisons began to fall apart.”
In an article published in the Atlanta Review of Journalism History, author Misty Hope addressed the impact of the War of 1812 on the economic standing of America’s poor, saying, “The War of 1812 gave an impetus to industrial development, creating new industries in cities and small towns, but after the War of 1812 and the wars in Europe ended, the American economy suffered a serious downturn. This caused thousands of small businessmen as well as farmers to be cast in prison for debt.”
The New York Morning Herald ran a story entitled “Imprisonment for Debt” on Feb. 23, 1830 which stated that Massachusetts, Maryland, New York, and Pennsylvania had “three to five times as many persons imprisoned for debt as for a crime.”
According to the Oxford History of the Prison, “Disorder and neglect were the dominant features of the eighteenth-century prison. On entering the jail, one was confronted with the noise and smell of the place. It was seldom easy to distinguish those who belonged in the prison from those who did not. Only the presence of irons differentiated the felons from the visitors or from the debtors and their families.”
The famous prisons of England such as the Marshalsea or the Clink were notorious for their terrible conditions. In 1848, Inveraray, Scotland opened a new prison that was considered state-of-the-art with features such as bathrooms, heating, and gas lighting. Although it is now a tourist attraction, the prison’s website explains that the fact that this prison was considered high tech due to heating and lighting only underscores the dilapidation of the others.
The horrid state of prisons in the 17th and 18th centuries was eventually noticed by the outside world, and soon reformers began to make headways into changing these places for the better. With aggressive efforts from educators like Dorothea Dix, a champion for the treatment of the mentally ill, soon states began to change their ways.
According to the Howard League, the call for reform of the prison system began in 1777 when John Howard published his findings after seven trips across Europe in search of a humane penal system. The goal of his efforts were “promotion of the most efficient means of penal treatment and crime prevention and a reformatory and radically preventive treatment of offenders,” writes Robert Preece, press officer for the Howard League of Penal Reform (which is named after John Howard).
Things began to change in the United States, with Kentucky leading the way to the abolishment of debtors’ prisons in 1821. Other states soon followed suit.
On March 11, 1824, the Maryland Gazette said, “It will be gratifying to every friend of humanity to know that the legislature of Maine…abolished the laws of that state which authorized imprisonment for debt.”
In a study published by the Brennan Center for Justice, titled Criminal Justice Debt: A Barrier to Reentry, the authors say, “In the 1830s, some U.S. states imprisoned three to five times as many individuals for debt as for actual crimes. By this time popular opposition to debtors’ prison had begun to grow, however, and in 1833, the United States eliminated the imprisonment of debtors under federal law, with many states following suit as well.”
Although debtors’ prisons were made illegal nearly two centuries ago, they are still very much in the public eye. There have been numerous lawsuits regarding the imprisonment of the insolvent which have reached the Supreme Court.
In Williams vs. Illinois(1970), the court ruled that “though a State has considerable latitude in fixing the punishment for state crime, and may impose alternative sanction, it may not, under the Equal Protection Clause, subject a certain class of convicted defendants to a period of Imprisonment beyond the statutory maximum solely by reason of their indigency.” This basically states that a prisoner cannot be forced to stay in jail to pay off boarding fees, from being in jail.
Another famous Supreme Court case, Bearden vs. Georgia(1983), ruled that parolees could not be jailed for their failure to pay their fines if they made an effort to find employment or were otherwise unable to.
“Modern debtors’ imprisonment in the United States is not exactly the same as the old ‘debtors’ prisons,’ because in the old days, there were actual facilities exclusively for debtors,” said Eli Hager of the Marshall Project. “Now, debtors are incarcerated in the same jails and prisons as everyone else. But what is similar is that, in our system, people are jailed for the proximate reason of being unable to pay their debt. So in effect, it’s debtors’ imprisonment, even though there aren’t actual brick-and-mortar “debtors’ prisons” anywhere in America.”