زندان های بدهکاران در امریکا: تجزیه و تحلیل اقتصادی

Debtors’ prisons have been commonplace throughout history, including in the United States. While imprisonment for debt no doubt elicited some repayment by benefactors of the debtor, we argue that its primary function was to deter default in the first place by giving borrowers an incentive to disclose hidden assets. Because of its cost, however, imprisonment was destined to be replaced by more efficient ways of preventing borrowers from sheltering assets. Empirical analysis of state laws banning imprisonment for debt provides some support for this argument. In particular, the results suggest that states in which the publishing industry developed sooner (thus facilitating the flow of information) were more likely to enact early bans on imprisonment for debt.

The availability of credit is an important component of a growing economy. A fundamental problem facing any system that relies on credit, however, is how to ensure timely repayment, and also how to deal with those unable to repay. These questions present society with a difficult trade-off because, while an unbending policy toward defaulters is generally necessary to enforce repayment terms, it can result in harsh treatment of those down on their luck. In early English law, the ultimate penalty for defaulters was imprisonment, often at the debtor's own expense, until the debt was paid. Of course, this raises the obvious question of how one could repay debt while in prison, but the underlying presumption was that the threat of imprisonment would induce borrowers to avoid default in the first place. In other words, the prospect of prison would act as a deterrent. Additionally, Mann (2002, p. 79) notes that creditors “hoped that the rigors of imprisonment would induce debtors to disclose concealed wealth or to part with assets that were exempt from attachment or, perhaps, that family members might step into the breach…” Holton (2007, p. 43) similarly observes that the system contained a “cruel logic, since it forced the delinquent debtor to reveal hidden assets…” Still, some debtors were bound to default, and others apparently were willing to sacrifice their freedom in order to protect their assets (Coleman, 1999, p. 9). As a result, debtors’ prisons flourished as a costly method for enforcing repayment, both for society and for prisoners. The fact is that, throughout history, imprisonment for debt was the norm rather than the exception to the rule. Ford (1926) describes the codification of imprisonment for debt in early Roman law, which evidently allowed debtors to be arrested and placed in jail for a prescribed period of time. References to imprisonment for debt can also be found in the bible, where it is suggested that if debts went unpaid by the end of the imprisonment term, the debtor could be killed or sold into slavery.3 While the tendency to imprison debtors apparently abated as alternative means of dealing with delinquent debtors developed, it reemerged in full force in the Middle Ages, waned again in the era of feudalism, only to return to prominence in the later Middle Ages, partly through the approval of the Catholic Church. For a variety of reasons discussed by Ford (1926), debtors’ prisons surged in medieval England and spread throughout Europe. In fact, Ford (1926, p. 30) cites the 1834 report of a British parliamentary commission asserting that at the time imprisonment for debt was legal in every country in continental Europe except Portugal. The American colonies imported the practice, and “[b]y the end of the seventeenth century the debtors’ prison had become an established colonial institution” (Coleman, 1999, p. 249). The system remained little changed until the beginning of the nineteenth century when most colonies began to enact reforms, driven in part by humanitarian concerns. And when Massachusetts abolished imprisonment for petty debts in 1811, the process of eliminating the practice altogether had begun. “Between 1811 and the end of Reconstruction most but not all of the eastern states gradually prohibited the imprisonment of defaulters except in cases of fraud and in damage suits for alimony, child support, and wrongful behavior” (Coleman, 1999, p. 256). The demise of the debtors’ prisons, however, was not driven entirely by compassion for debtors; it also reflected changes in lending practices. As credit became more impersonal, lenders began to require some form of security up front as protection against default. In addition, the legal system facilitated the seizure of secured assets in lieu of payment. Borrowers therefore had a harder time sheltering assets. Debtors’ prisons thus became an anachronistic and costly way to enforce payment in this world, and undoubtedly would have disappeared even without legal action (Coleman, 1999, p. 268). The goal of this paper is threefold. The first is to provide an historical picture of debtors’ prisons in the United States as they existed in the early years of the Republic. The second is to develop an economic theory of debtors’ prisons, focusing on their role in facilitating efficient lending and repayment of debt, and on the emergence of alternative enforcement measures. Finally, the paper offers some historical and empirical evidence on those factors that led to the demise of debtors’ prisons in the United States during the mid-nineteenth century.

The idea of debtors’ prisons, on its face, seems irrational. How, one asks, can a borrower be expected to pay back a loan when imprisoned? Yet debtors’ prisons have flourished throughout history and were even imported into the United States, where they endured until the middle of the nineteenth century. This suggests that they must have served some useful function in the operation of early credit markets. The analysis in this paper has sought to explain the economic reasons for their existence, and ultimately, for their demise. While the imprisonment of debtors no doubt elicited some amount of repayment of delinquent loans by benefactors of the debtor, we argued that its primary function was to deter default in the first place by giving borrowers an incentive to disclose hidden assets that could be used for repayment. Imprisonment was costly, however, and was therefore destined to be replaced by a more efficient means of preventing borrowers from sheltering assets. Although most states repealed debtors’ prison laws in the decades prior to the Civil War, by then such actions were largely symbolic since the practice had already substantially declined under its own economic weight.31 Empirical analysis of state laws banning imprisonment of debtors in the United States provides some support for the economic argument. In particular, the results suggest that those states in which the publishing industry developed sooner, thus facilitating the flow of information, were more likely to enact early bans of imprisonment for debt.