Are debtors prisons coming back?

This post comes from Lynn Mucken at MSN Money.

The United States does not have debtors prisons, per se -- they effectively were outlawed in 1833 -- but you can still go to jail for failure to pay your debts.

Surprised? You wouldn't be if you thought about it for a bit. Judges occasionally jail a parent who fails to pay court-ordered child support, but only after going to considerable effort to extract the money in other ways, and usually only if the courts believe the parent can afford to pay.

And there are still "pay the fine or …" judgments, although community service in lieu of slammer time is the preferred option these civilized days.

Popping up more often, however, are cases where people go to jail for failure to pay their personal debts to businesses.  Post continues after video.

According to The Wall Street Journal, more than a third of all U.S. states allow jailing of debtors who can't or won't pay. Its survey of nine counties with a total population of 13.6 million showed that judges have signed off on more than 5,000 such warrants since the start of 2010.

The Star Tribune of Minneapolis-St. Paul detailed one case:

Jack Hinton of Kenney, Ill., was sentenced to jail indefinitely after falling behind on a court order that he pay $150 a month on a debt of $6,440. Hinton, a self-employed roofing contractor, said he had broken his neck and back in a fall, but the judge noted that Hinton used $1,000 for other bills rather than his court-ordered payments. He was ordered to the county jail until he could come up with $300.

After three hours in a holding cell, his wife got him released by borrowing on a credit card. "I couldn't pay, and I was stuck in jail until I did," Hinton said. "How is that any different from debtors prison?"

The WSJ reported on a couple of recent jailings:

• Easy Money Express, a Paducah, Ky., payday lender, won arrest warrants against at least four customers, one of whom spent five days jail after failing to pay a $275 debt.
• Emmie Nichols, 26, was arrested at her mother's house in Platt County, Ill., after lawyers for Capital One Financial won an arrest warrant against her for skipping a court hearing about $1,159.87 she owed on a credit card. The $500 bond that freed Nichols from the county jail was turned over to Capital One as a partial payment of the debt. 

Most of these legal actions are filed by payday lenders or collection companies that are sold the debt for pennies on the dollar by the stiffed businesses, which seldom find bill collection to be cost-effective. Bigger companies build credit losses into the price of their product and have accounts-receivable insurance and tax write-offs to ease their pain.

"We have created a de facto debtors prison system in the United States that is largely unconstitutional," Judith Fox, a law professor at Notre Dame Law School, told the Star Tribune. "In some parts of the country, people are so fearful of arrest they are scrambling to pay money they might not even owe."

Of course, the fear factor is what makes the collection system work. That, and the relentless pursuit.

Debt collectors defend the practice, saying phone calls, letters and legal actions aren't always enough to get people to pay.

• Calculator:Do I have too much debt?

"Admittedly, it's a harsh sanction," said Steven Rosso, a partner in the Como Law Firm of St. Paul, which does collections work. "But sometimes, it's the only sanction we have."

Is it legal? Experts disagree, the Star Tribune found.

In states such as Indiana and Illinois, people are being locked up for not making court-ordered payments. Known as "pay or stay," it can mean days in jail and multiple arrests for the same debt. Some legal experts say the practice is unconstitutional because the arrest is directly linked to the failure to pay a debt.

In other states, the issue is less clear because warrants to arrest debtors are issued for disobeying court orders, such as not filling out a financial disclosure form or missing a required hearing, not for failure to pay debt. So long as someone fulfills the court order, they can avoid incarceration.

"It looks on the surface like debtors prison," said William Ross, a law professor at Samford University's Cumberland School of Law in Birmingham, Ala. "But it's really not, because the person isn't being punished for the debt, but for failing to appear."

Alan White, a law professor at Valparaiso University in Indiana, told the newspaper that even the threat of jail for debts is unconstitutional. He also questioned the practice of bail being set at the amount of the debt. "If, in effect, people are being incarcerated until they pay bail, and bail is being used to pay their debts, then they're being incarcerated to pay their debts," he said.

• How do your finances stack up?

And then there is the opinion of Illinois Circuit Court Judge Chris Freese. "I wish I could do it more," Freese, who has heard hundreds of debt-collection cases, told the WSJ. "It's often the only remedy to get people into court and paying their debts."

How often are debtors arrested across the country? No national statistics are kept, and until recently the practice has gone largely unnoticed outside legal circles.

"My suspicion is the debt collection industry does not want the world to know these arrests are happening," Robert Hobbs of the National Consumer Law Center in Boston told the Star Tribune, "because the practice would be widely condemned."

Would it? Public support/disapproval,​ as with its attitude toward the welfare system, likely depends on the details of each individual case. Some people have received a raw deal in life, and others just want things without paying for them.

 More from MSN Money:

• They paid down huge debts; so can you
• 8 creative ways to stay debt-free
• A debt payoff plan that works
• Marrying Mr. Debt? Prepare to pay
• Warning signs of a debt problem
• 10 habits that lead to debt disaster