Debt Bondage: How Private Collection Agencies Keep the Formerly Incarcerated Tethered to the Criminal Justice System

Abstract

This Article examines the constitutionality of statutes which allow courts to transfer outstanding legal financial obligations to private debt collection agencies. In Washington State, the clerk of courts can transfer the legal financial obligation of a formerly incarcerated person if he or she is only thirty days late making a payment. Upon transfer, the debt collection agencies can assess a “collection fee” of up to 50% of the first $100.000 of the unpaid legal financial obligation, and up to 35$100,000. This fee becomes part of the LFO debt imposed at sentencing, and like that debt, must also be paid in full. Interest accrues at 12% per annum, there is no account for a LFO debtor’s indigence or ability to pay, and the collection fee is not dischargeable in bankruptcy. Not only do these collection fees further consign a formerly incarcerated person to a lifetime of poverty and exacerbate already-severe barriers to community re-entry, but they increase the risks for re-arrest and re-incarceration. Equally troubling is that these fees extend the time during which an ex-offender is tethered to the criminal justice system. This Article argues that Washington State’s collection agency referral law, and similar laws in other states, may violate constitutional due process and excessive fine edicts