In for example small claims, if the plaintiff wins and the defendant doesn't show for the payment hearing, the plaintiff can request a capias (civil arrest) and/or a writ of execution (e.g. lien) to collect payment (in some US states).

But if the judgement is already over, and money is owed, then what is even the purpose of a capias when the court already has the power to seize assets and/or garnish wages? I also heard that a sheriff will likely not actively execute civil arrests unless a person is being checked for another reason. So why is a plaintiff (or even a judge) even given a capias as an option?

  • Seizing assets is only useful if you can find the assets, and garnishing wages is only useful if the defendant has significant wages. If they have no wages, but do have assets, but you don't know where they are, then arresting the defendant could be more effective at getting them to actually pay up. Commented May 27 at 5:20
  • @NateEldredge What I find confusing about the MA rules, as written and in the sources I find explaining them, is that the plaintiff may request a capias at the same hearing as they can request a writ of execution, so as a first step. If the defendant would presumably say what assets one can and cannot seize, but they don't show up, the small claims rules at least seem to indicate the plaintiff can just generally outline if the defendant has assets. Then the writ can be filed. So to my original question, a capias at that point seems pointless, if it's requesting a defense when none is required?
    – Samuel
    Commented May 30 at 3:32

1 Answer 1


Body execution (i.e. a capias a.k.a. body attachment) is not a remedy that is available in any U.S. state, at least for mere nonpayment of a debt, and it hasn't been a remedy that has been available for that purpose for many decades. It has been held to be unconstitutional.

During the 20th century, on three separate occasions, the Supreme Court affirmed the unconstitutionality of incarcerating those too poor to repay debt. In 1970, in Williams v. Illinois, 399 U.S. 235, the high court decided that a maximum prison term could not be extended because the defendant failed to pay court costs or fines. A year later, in Tate v. Short, 401 U.S. 395 (1971) the justices ruled that a defendant may not be jailed solely because he or she is too indigent to pay a fine. Most importantly, the 1983 decision in Bearden v. Georgia, 461 U.S. 660, compelled local judges to distinguish between debtors who are too poor to pay and those who have the financial ability but “willfully” refuse to do so.


There are some circumstances in connection with debt collection where someone can be arrested and incarcerated, but this involves instances that amount to contempt of court, such as hiding an asset subject to a writ of execution and refusing to disclose where it is located.

These tools are employed predominantly in cases where a self-employed person fails to pay child support despite having a clear ability to pay, which is akin to traditional body execution but requiring a showing of willful non-payment. Inability to pay is a defense to remedy.

It is also used where someone has an asset protection trust or other hidden assets which are not disclosed, and where someone disregards court orders to provide information about their assets (just like any other failure to comply with a subpoena). Providing information and showing up to hearings is a defense in these cases, even if the debt is not paid.

The Massachusetts court website appears to indicate that the writ is used there to compel the debtor to show up for a hearing to provide statements to a magistrate about the debtor's ability to pay, much as a subpoena would be used in most jurisdictions, and not as a body execution in the traditional sense of that remedy where someone is incarcerated simply for inability to pay or non-payment that isn't shown to be willful.

The ACLU has been prominent in ending these practices, which debtors generally don't have the means to fight a constitutionality fight over. Inertia has often kept invalid practices in use long after they have been ruled unconstitutional. A 1976 law review note, written shortly after two of the key U.S. Supreme Court decision, discusses the impact that they had.

  • 3
    Looking at MA rules in particular, they have small claims instructions specifying the plaintiff can request a capias from the magistrate, and sheriff sites such as Norfolk and Essex detail capias procedure (including physical arrest). These sites are reasonably up to date, so if the capias is Unconstitutional then something is very wrong here.
    – Samuel
    Commented May 26 at 23:28
  • 1
    I can't find any sources supporting the claims in this answer. If you have a source, could you cite it? Commented May 27 at 10:22
  • @ohwilleke that is not what a capias is.
    – Tak
    Commented May 27 at 21:00
  • @user2357112 this answer confuses capias with other things. You are right.
    – Tak
    Commented May 27 at 21:14
  • @ohwilleke it is not used as a subpoena. It is used like a warrant. It means the person is forced to appear.
    – Tak
    Commented May 27 at 21:25

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