Reconceptualizing Bankruptcy Education Requirements for Incarcerated Debtors

In the eighteen years since Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), bankruptcy scholars and professionals have launched countless critiques against two of the Act’s more drastic amendments: (1) mandatory pre-filing credit counseling and (2) a mandatory post-filing financial management course. Without completing the pre-filing requirement, one cannot qualify as a debtor under the Code and is thus barred from filing for bankruptcy. Without completing the post-filing requirement, one cannot receive a discharge. Notwithstanding the volume and breadth of valid criticisms, the specific harm of BAPCPA’s education requirements has been largely ignored for one population: incarcerated debtors. People in prison have debt; they enter prison with debt, they incur debt while in prison, and they leave prison with debt, along with a whole slew of financial hurdles to overcome. As they currently stand, BAPCPA’s education requirements present an additional, empty hurdle that incarcerated debtors must overcome. A hurdle, because incarcerated persons face liberty constraints that make it exceptionally difficult to obtain the required courses. Empty, because the one-size-fits-all courses are ineffective as educational programs. Bankruptcy education is not a hopeless endeavor, but the system is in need of an overhaul. This Comment proposes a two-pronged solution. First, the education courses should be made more accessible through implementation of in-prison programming. Second, the requirements for program approval should be altered to incorporate the educational theory of differentiation and impose specific guidelines to address the unique needs of incarcerated debtors