Debtors’ prison

April 20, 2008

By Jacob Quinn Sanders
Arkansas Democrat-Gazette

Randy Harden stopped by his Little Rock home one Tuesday late in February on a break from his construction job. He heard a knock on the door.

“Great,” he said he thought, “my girlfriend’s here. This is a good day.”

It wasn’t his girlfriend. It was Pulaski County sheriff’s Deputy Ken Turner, there to arrest Harden, 42, and take him to jail.

Harden had committed no crime. Rather, he had failed to pay a debt of $10,436.16 to a lumber company, failed to file in court a list of assets required under Arkansas law and failed to show up before a judge to explain why.

Increasingly in central Arkansas, attorneys and some private citizens are using a document called a “body attachment” to require sheriff’s deputies to arrest debtors who make the same legal missteps Harden made. Once in custody, a judge can set a hearing, feeling reasonably certain that a defendant who has so far not shown up for court will be there.

Long used primarily to force overdue child-support payments and alimony, body attachments granted in civil debt cases have become far more common since late last year, county records show. The time period corresponds to changes in wording in the orders attorneys wrote for judges to sign — changes that addressed Pulaski County attorney’s office concerns about the legality of the orders.

Plaintiffs’ attorneys say the maneuver leads to quicker settlements that benefit their clients.

“From my side of it, our duty is to collect on that debt,” said Tim Cullen of the Little Rock law firm Cullen & Company, a frequent user of body attachments to collect on civil judgments. “This is sort of the last resort we have. Yes, it can involve an arrest and, yes, a person can be taken to jail, but it’s not nearly as dramatic as it sounds.”

Harden said his arrest prompted him to set up a payment plan on his debt.

“I was in jail for six or seven hours, completely humiliated,” he said. “I only didn’t pay or deal with this because I knew I didn’t have the money. But if I were them, I’d have done the same thing. Maybe it sounds crazy, but I completely agree with what happened to me.”

Not every debt in these cases is as large as Harden’s.

One of Cullen & Company’s current cases centers on an initial debt of $174 to the All for Kids pediatric clinic, unpaid since 2002, court records show. A Little Rock debt-collection firm called Access Credit Management took over debt collection and sued, and in March 2006, the amount had grown to $549.99 with fees and interest, records show. A judge signed a body attachment in the case in January.

The amount of the debt is not something Cullen said he considers. He works from his client’s directions, he said.

“They tell me to work an account,” he said, “and I work it regardless of the size of the account.”

BAIL QUESTIONS

Capt. David Doty supervises the judicial division for the Pulaski County sheriff’s office, which is charged with handling body attachments. He said he has seen the number of active body attachment cases rise from an average of 120 in November to 240 cases now.

“We used to get maybe five, six of these a week,” he said. “Now it’s more like 20, 25.”

Before the rapid increase, Pulaski County Attorney Karla Burnett expressed a threefold objection to using body attachments in civil debt cases. In an opinion memo dated Aug. 22, 2007, and addressed to Sheriff Doc Holladay, she wrote that such orders might violate the Arkansas Constitution, which provides in Article 2 that “No person shall be imprisoned for debt in any civil action … unless in cases of fraud.”

The orders also raised legal questions about precisely why a debtor should be arrested. Body attachments are rooted in contempt of court — the failure to file the asset form and the failure to appear before a judge to explain why.

But whether a debtor committed civil contempt or criminal contempt in those failures was unclear, Burnett wrote. Criminal contempt would bring with it certain legal protections for the person arrested on that charge and is a direct offense against the dignity of the court, she wrote, while civil contempt simply seeks to enforce the rights of a private party.

“With regard to the Orders in questions, it is difficult, if not impossible to discern whether the contempt proceedings are civil or criminal in nature,” Burnett wrote to Holladay.

What allowed the sheriff’s office to temporarily stop enforcing the body attachments after Burnett’s memo was her finding that many of the orders had debtors pay a bail amount — usually one based on the amount owed — directly to the plaintiff or the plaintiff’s attorney. Arkansas law provides that only a judge, magistrate, clerk of the court, sheriff or sheriff’s deputy or designated other law-enforcement officers can collect bail.

“The persons designated in the Order to receive the bail are not authorized to do so by state law;” Burnett wrote, “therefore, the Defendant has no right to bail under the Order. For this reason, the Defendant’s ability to secure their release is unclear.”

MORE ORDERS COMING IN

Within a few months, sheriff’s officials said, new orders began showing up with provisions to pay bail to the clerk of the court. More orders began to mention civil contempt specifically. And Cullen said the idea that an arrest on a body attachment amounts to debtor’s prison is “a misunderstanding of the process. If these people complied with the court, this would never even be a consideration.”

Holladay said he has had to assign two deputies full time to serving body attachments in addition to having other deputies help out when they can. It used to be a small part of every deputy’s duty, he said.

Successfully serving the body attachments also means more people to process through the often-full Pulaski County jail.

The sheriff said that over the course of a week, between eight and 15 people might get booked into jail on body attachments. On Wednesday morning, Holladay said, there were three among a jail population of 910.

“It is a burden on us, yes, very much,” Holladay said. “We’re still figuring out the best way to handle all this.”

Sheriff’s office and court officials said the attorney most aggressive in filing body attachments has been Audrianna Grisham, whose practice specializes in debt collection. Included in her client list is Arkansas Democrat-Gazette Inc., which owns the Arkansas Democrat-Gazette, and on whose behalf she has had a judge order at least one body attachment to collect on a civil judgment stemming from a $344 debt.

“I don’t know that that’s something I really want to talk about,” she said.

She declined to be interviewed for this article, saying she was busy preparing for court.

USES IN OTHER STATES

Attorneys in other states also have found body attachments to be useful tools.

Since 2005, the Maryland attorney’s office in Baltimore has used them to lock up some witnesses to guarantee their testimony at trial. Officials in Baltimore — the cradle of the “stop snitchin’” movement to discourage people from cooperating with law enforcement — noticed that prosecutors would often lose a case because critical witnesses would fail to testify.

“We worked with the courts, we worked with the defense bar, and we said we don’t want to do this — we feel like we have no choice — but this is what we’re going to do,” said Margaret Burns, chief of communications and government affairs for the state’s attorney’s office.

She said if witnesses fail to show up several times, a prosecutor will ask a judge for a body attachment. A dedicated witness-location unit made up of Baltimore police and investigators then goes out to find and arrest the witnesses.

“We try to get these people out of jail to testify as quickly as possible,” she said. “And after that, they’re free to go.”

But in Champaign County, Ill., officials in 2004 revoked the tax-exempt status of Provena Health, a chain of six hospitals, in part because its debt-collection practices included seeking body attachments. Last July, Provena won an appeal in state court — a decision the Illinois attorney general then appealed to a state appellate court panel of three judges.

“At the moment we’re waiting for our next court date,” Provena spokesman Lisa Lagger said.

She added that Provena no longer seeks body attachments for debt collection, citing what she called their inconsistency with the organization’s faithbased approach.

EMPOWERED CITIZENS

In Arkansas, it doesn’t take an attorney to seek a body attachment. Sometimes it just takes persistence.

Little Rock real-estate agent Christine Ragar, 63, got a judge to grant a body attachment in a $4,250 small-claims case against the owner of a landscaping firm. Her complaint claims the contractor killed her grass and worked only 1 1/2 days of a 10-day project, then wouldn’t return her phone calls.

“I guess I was just persistent,” she said. “I kept asking, ‘What else can I do, what else can I do?’ after he wouldn’t show up and wouldn’t pay.”

She said she asked attorneys around Little Rock District Court if she should ask for a body attachment after she read about them in her own research.

“They didn’t think so,” Ragar said.

But she asked Judge Alice Lightle anyway whether her case would qualify.

“She looked at me, paused for a minute and said, ‘Granted,’” Ragar said. “A friend of mine said I should have gone to law school.”

Although the contractor has yet to pay her and still hasn’t contacted her to resolve the debt, Ragar said she at least feels like she has done something about it.

“I guess that’s the most important thing,” she said. “I have the power to go after something that’s mine.”

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Comments
  1. Bail or bond (on this situation, bail and bond imply the same factor) is an amount of money in cash, home, or surety bond for the purpose of creating confident that someone attends all expected court appearances. Bond permits an arrested individual (defendant) to be released from jail right up until his or her situation is completed.

  2. YouMakeMeSick says:

    Tim Cullen is a souless person. I have had the misfortune of dealing with him and my kids still go to bed wondering when life will ever go back to normal. My story is pretty simple. I had lump removed from my under arm to check for cancer. Three months later I lost my job and could not pay the bills for awhile while I was out of work. I tried like crazy to get Access Credit Management to work with me. They knew I had lost my job as I provided documents to them stating such. It didnt matter as I soon found myself being sued by Mr. Cullen and his company. What was a $270.00 has now skyrocketed to over $700.00. Well, the good news I finally found work. The bad news? Its for min wage but hey its a job right? Mr. Cullen seems to think that folks that make min wage in this day and age make more than enough money to justify taking 25% of each paycheck before I even get it. No matter it doesnt even really cover my rent or car payment to say nothing of food and gas. Clothes for the kids? Forget it. School pictures? Forget it. Hey son, I heard you want to join the boy scouts! Sorry buddy, I cant pay the small fee because Mr. Cullen has to make sure and get the money he worked so hard to earn. I had a guy, Bill Brakeen I think his name was, at one of the numbers I talk to tell me that he worked with mostly Social Security accounts and folks that made less than 25k a year. Thats right, they sue old people without a dime to thier names. I mean seriously Mr. Cullen, is this what you went to law school for? Is this what you tell your kids that you do for a living? Are your parents proud of you for taking from those that have nothing so that you can live the good life? I hope it feels good, but then for it to feel bad you would have to actually think about what you do to people. Not everyone on the planet who falls behind is a deadbeat. There are actually some of us that just feel on hard times which got 50 times harder when the bottom feeders like yourself got involved. I hope all the pain you cause is worth it just remember that what goes around comes around. The good times cant last forever Mr. Cullen and when they finally end for you I hope that whoever knocks on your door treats you with the same “respect” that you treat others.

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