So far, our national conversation about modern debtors’ prisons has placed the blame for their existence almost exclusively on municipalities’ interest in maximizing the revenue generated by their courts on the backs of disenfranchised communities. Revenue generation is a relatively straightforward and easy-to-grasp explanation for what is otherwise confounding, widespread illegality on the part of law enforcement and court officials. This focus on revenue generation has led to policy responses premised on the notion that modern debtors’ prisons can be eliminated if the revenue-generation motive is disrupted or controlled. While acknowledging revenue generation as one strong motive for the practices that produce modern debtors’ prisons, this Essay argues that it is an incomplete explanation. Incarceration for debt is fiscally irrational in most in-dividual cases, because governments are effectively doubling their losses by add-ing incarceration and other enforcement costs to accumulated criminal justice debts that can never be collected. The limitations of the revenue-generation motive suggest other factors play a role in sustaining modern debtors’ prisons and merit greater attention than they have received.
Andrea Marsh is a Clinical Lecturer and the Director of the Richard and Ginni Mithoff Pro Bono Program at The University of Texas School of Law. She founded and serves as Senior Counsel at the Texas Fair Defense Project. Emily Gerrick is a Staff Attorney at the Texas Fair Defense Project and a 2014 Arthur Liman Public Interest Fellow.
