The Baltimore Sun recently reported on a rarely used legal maneuver that has resulted in the arrest of more than 100 people for their failure to pay rent. The existence of this tactic as a legal process is somewhat surprising since it is on par with putting people in jail for being poor (which is illegal). The bigger surprise is that the person behind its increased use is President Trump’s son-in-law and senior advisor Jared Kushner.
As a housing law expert with Maryland Volunteer Lawyers Service and as a former collections industry attorney myself, I’ve seen the practice put to use far too many times. And now with the newfound attention Mr. Kushner’s fame has brought to the issue, the time is ripe for the state legislature to end this outdated and unjust practice, and bring Maryland’s legal system into the 21st century.
In Maryland, a creditor can use a “body attachment” to force someone who owes them money to come to court via this civil arrest process. Once they have a judgment in their favor, creditors can require a person to appear in court to discuss their finances. If the debtor fails to appear after two requests, the creditor can ask the court to have that person arrested. However, this process raises other concerns: There may not be enough evidence that the alleged debt is actually owed. The person may not have received notice about the debt, was not informed or was misinformed about what was owed.
Because the body attachment is a civil legal matter and not a criminal action, there is no right to an attorney to contest it, and people who cannot afford to hire a lawyer may lack the legal knowledge to defend their rights. They may be so confused or intimidated by the complicated process that they are afraid to go to court at all. Yet, with a body attachment on their record, they can still land in jail and face a vicious cycle of debt that takes away their ability to work and earn enough to pay off the alleged debt. My civil legal aid organization exists to provide legal help to such people, but our limited resources permit us to help only a small fraction of those who need it.
Civil courts are the proper place to resolve financial conflicts. But poverty is not a crime and should not be punished as part of the American justice system. Debtors’ prisons are supposed to be a horror of the past — not only cruel, but also unnecessary in the modern world. Most other states handle these cases just fine without body attachment, but in Maryland, the creditors still using it are mainly bail bondsmen and Jared Kushner.
Meanwhile, our police, court commissioners, and corrections officers should be preventing and punishing actual crimes, not being forced to collect on private debts like enforcers in a Dickens novel. And to make matters worse, this tactic has its worst impact on the very poorest, often elderly or disabled Americans whose only income comes from benefits like Social Security. Normally, the law says those funds can’t be touched in most consumer cases against someone whose only income is social security; however, if a creditor requests a body attachment, this loophole lets them force this debtor to use exempt funds to buy their freedom. Body attachment is a hostage situation, but in Maryland it’s perfectly legal.
I know from my experience on the collections side of these cases that this tactic is about exploiting the tools of criminal law to collect money for a civil case. We separate those parts of the law for a reason, but this practice blurs them inappropriately. I know from my experience in civil legal aid that the vast majority of people defending against collection lawsuits are in court alone, without the legal help to protect their rights, while Jared Kushner and other collectors are routinely represented by counsel. That’s not fair, especially when there’s not enough legal aid to go around and the consequence can be time in jail.
Maryland’s legislature has tried to end this, but it failed after a strong lobbying effort by the bail bonds industry. In early 2017, changes to the practice were introduced as part of a larger justice reform package that also failed. However, this fall, we have a real opportunity to end this practice as legislators will convene a working group on the issue, to possibly tackle it again when session resumes in January.
Anyone not directly profiting from this practice can see it is obviously unjust. If the public puts even half as much pressure on our Delegates as the bail bonds industry does, we stand a real chance of success. For the sake of human decency, taxpayer savings, internal consistency in our justice system, and common sense, Maryland legislators need to finally eliminate body attachment in our state.
Amy Hennen (firstname.lastname@example.org) is a managing attorney at the Maryland Volunteer Lawyers Service.