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Making the Bad Guy Pay: The Growing Use of Cost Shifting as an Economic Sanction

by Kirsten D. Levingston1

"At some point, we have to be able to say to people who have been incarcerated, and served time on probation or parole upon release, you have paid your debt to society. We have got to help people move on to leading productive lives."2

"For people with loads of debt from court fines, supervision fees, restitution, and other charges related to their crime, getting out of prison is no fresh start. . . . They come out of the gate already at a disadvantage."3

Ex-prisoner Wilbert Rideau became known as ?the most rehabilitated prisoner in America during his long and complex journey through Louisiana?s criminal justice system, which began when he was 19 and ended when he was 64.4

Rideau was tried, convicted and sentenced to death three times for kidnap and murder, but three different appellate courts reversed those convictions because of blatantly unconstitutional conduct by judges and prosecutors.5 Following the trio of reversals Rideau was ultimately convicted of manslaughter at his fourth trial in 2005, an offense that carried a maximum sentence of 21 years. By then Rideau had already served forty-four years, one of the longest sentences in Louisiana history,6 and consequently left Angola prison on January 15, 2005, a free man. But despite this distinction and despite his undisputed rehabilitation, the judge in his case nevertheless felt Rideau still owed a debt to society. $127,905.45 to be precise.7 As a kind of twisted parting gift, Judge David Ritchie saddled Rideau with nearly $61,000 of costs "associated with impaneling, housing, feeding, transporting and providing security for the jury,"8 and a $67,000, bill to "reimburse the Indigent Defender's Board for all costs associated with [Rideau's] defense, including witness fees and expenses.9 The Louisiana appeals court vacated the trial court's six-figure assessment against Rideau, finding the trial court overstepped its legal authority. While the relevant Louisiana statute authorized recoupment of some "costs of prosecution or proceeding," the appellate court concluded this did not mean "'every' cost incurred by the State in maintaining the judicial system" as apparently interpreted by Judge Ritchie.10 The state's appeal of this decision to the Louisiana Supreme Court, seeking reinstatement of Judge Ritchie's order, was denied.11

Rideau's case was extraordinary in most respects, including the six-figure assessment levied against him, but common in at least one: The system's attempt to recoup costs from the prosecuted.

Across the country, in the face of expanding expenses and shrinking budgets, federal and state criminal justice officials are becoming more aggressive in shifting a range of criminal justice system costs onto defendants.12 Criminal financial obligations are not aimed solely at benefiting victims and punishing offenders. Increasingly policymakers are using them simply to keep the system in the black.

A Georgia sheriff, for example, collected $18 a day in room and board fees from those awaiting trial, until former pretrial detainees challenged the practice, which was not authorized by any state statute or policy.13 Mickel Jackson, one of the plaintiffs, was jailed for three months and paid half of the $1,471 cost of his jail stay, before the state dropped the charges against him.14 The sheriff had compelled Willie Williams, jailed for nine months before posting bond, to sign a promissory note agreeing to pay over $4,600 or risk going back to jail.15 "Taxpayers," according to the sheriff, "should not have to bear the burden of feeding and housing lawbreakers."16 Clinch County settled the case, agreeing to return about $27,000 to those forced to pay the unauthorized jail fees.

Though unauthorized in Clinch County, some argue that shifting costs in this way makes sense. After all, they say, those arrested, charged, and prosecuted are responsible for the ballooning costs of jails, courts, prison, and community supervision. "In essence, an inmate is being asked to reimburse the State because the inmate 'has made it necessary for the State to keep and maintain him at a large cost,'" the Supreme Court of Washington explained in a 2001 case challenging automatic deductions from inmate accounts to cover costs.17 While the notion of charging "users" for the systems' cost may have some appeal, it ignores critically important policy and practical realities.

Powerful interests profit directly from keeping our jails and prisons full -- private prison investors, prison guard unions, telephone companies, and industries that service detention facilities (like medical, transportation and food service); all gain directly from keeping prisons in business. As imprisonment systems grow, however, so does the burden on taxpayers who fund them. Why, disgruntled taxpayers might ask, are policymakers not finding less expensive and more effective ways to keep the public safe? Why, taxpayers might wonder, won't policymakers devise alternatives to jails and prisons that solve the underlying problems contributing to involvement in the system instead of exacerbate them. Rather than answer these important questions, increasingly jurisdictions now seek to quell taxpayer concern about system costs by shifting those costs away from taxpayers and on to the "bad guys" who use the system. By shifting costs in this way officials are essentially immunizing themselves from tax payer complaints, in essence muzzling the calls for change and demands to develop more cost effective alternatives to criminalization and incarceration. The resulting status quo most greatly benefits a limited, yet influential few: those who profit from full jails and prisons.

Concern over shielding "hardworking tax payers" from the costs of getting the "bad guy" figures prominently in cost-shifting rationales. Yet the distinction between "taxpayers" and "bad guys" may be an illusory one. Someone may be holding down a tax-paying job one day and behind bars the next. And, where compelled to pay book-in fees or a per diem for room and board in pre-trial detention, one is paying fees before being convicted of any offense. Probationers, for whom employment is often a condition of release, pay taxes but are still charged fees for probation services. Family members, who pay into commissary or personal accounts for a detained or incarcerated loved one, only to have those dollars intercepted by prison and jail officials to cover prisoner room and board, are often tax payers.

Ora Lee Hurley's situation offers an illustrative example of the hazy divide between "bad guy" and "taxpayer" and the counterproductive cycle fee assessments create. Hurley is a prisoner held at the Gateway Diversion Center in Atlanta because she owes a $705 fine. As part of the diversion program, Hurley was permitted to work during the day and return to the Center at night. Five days a week she works full-time at a restaurant, earning $6.50 an hour and, after taxes, nets about $700 a month. Room and board at the diversion center is $600, her monthly transportation costs $52, and miscellaneous other expenses eat up what's left. Hurley's attorney explains "[t]his is a situation where if this woman was able to write a check for the amount of the fine, she would be out of there. And because she can't, she's still in custody. It's as simple as that." Though she works while in custody, most of her income goes to repay her diversion program, not the underlying fine that landed her there in the first place.18

In addition to allowing them to limit the public's financial burden caused by wrongdoers,19 policymakers and justice administrators argue that imposing cost-covering fees allows them: to avoid raising taxes;20 to ensure crime victims are properly compensated;21 to appear fiscally responsible;22 and to teach moral lessons,23 and fiscal responsibility.24 These goals, however, remain elusive. Court-imposed debt is usually layered on to other disadvantages. According to a 1997 survey of state prisoners conducted by the Department of Justice, "68 percent of people in prison had not completed high school,53 percent earned less than $1,000 in the month prior to their incarceration, and nearly one half were either unemployed or working only part-time prior to their arrest."25 A 2006 report by the New York State Bar Association found it "fair to conclude that about 80% of all defendants charged with a felony in the United State are indigent" based on Department of Justice data collected in 2000.26 Saddling those least able to pay with an extra cost, beyond that assessed in general taxes, for running a justice system ostensibly designed to serve the public is both inequitable and unlikely to generate the desired revenues. Predictably, researchers have found that "[s]taggering amounts of economic sanctions are unpaid, more than $4.5 billion in fines at the federal level and more than $166 million in New Jersey alone."27

The current approach of levying costs has a particularly devastating effect on populations of color, communities disproportionately represented in the criminal justice system. At the end of 2005, 60 percent of state and federal prisoners were African-American or Latino.28 African-American women were more than twice as likely as Latina females and over 3 times more likely than white females to have been in prison on December 31, 2005.29 The Census Bureau's most recent income and poverty figures show that African-American households had the lowest median income in 2005 ($30,858), 61 percent of the median for non-Latino white households ($50,784).30 Median income for Latino households was 71 percent of the median for non-Latino, white households.31 In 2005, the poverty32 rate was 24.9 percent for African-Americans, with 9.2 million people in poverty, and 21.8 percent of Latinos, with 9.4 million in poverty.33 For non-Latino whites, the poverty rate was 8.3 percent, or 16.2 million people in 2005.34 These prison and economic demographics show that communities of color are both disproportionately incarcerated and disproportionately impoverished.

Legislators often create new fees and increase existing assessments without much, if any, information about the system-imposed debts criminal defendants already face, or how those debts affect people's lives. In 2003 alone about a third of the states enacted laws assessing costs against criminal defendants for court security, probation supervision, appointed counsel, transfer of parole or probation supervision to another state, inmate medical and dental expenses, sex offender registration, electronic monitoring fees, and costs of incarceration, like room and board. In addition to enacting new fees some states increased existing assessments.35 Illinois doubled its monthly probation fee (to $50),36 Kansas doubled its assigned counsel application fee (to $100),37 (which all defendants seeking a court appointed lawyer to represent them at trial must complete). Minnesota upped its assigned counsel fee from $25 to $200,38 and Oklahoma quadrupled its monthly electronic monitoring fee to $300.39

George Keiser, Chief of the Community Corrections/Prison Division at the National Institute of Corrections, has studied the issue for decades. "Legislation imposing financial obligations has typically been passed incrementally," Keiser observes, creating "a danger in tacking fees upon fees with no end in sight." He suggests reviewing "the mandates in place before introducing new financial penalties."40

With the growth of the adult correctional population -- over seven million adults are in jail, prison, or supervised in their community41 -- in the near term policymakers will continue to feel pressure to balance large, costly criminal justice system budgets. The temptation to shift the financial burden to the most politically powerless among us, those caught up in the criminal justice system, is fierce. While the move may be popular with taxpayers and legislators eager to avoid raising taxes, any short-term gains in revenue come at the cost of long-term community survival. Even the courts and criminal justice administrators who are the intended beneficiaries of cost-shifting economic sanctions are beginning to realize the futility of saddling those who reenter society with debt so crippling that any chances of successful reintegration may be impossible.

An Overview of Criminal Financial Assessments

"I've never seen so many people interested in $15!"42

- Probationer's disbelief at paying multiple fees, as expressed on the wall of a probation office bathroom.43

A first step in understanding whether assessing cost-related fees is the appropriate way to defray the skyrocketing budget costs of state criminal justice systems is identifying the actual fees being assessed. An increasingly popular method for meeting the costs of expensive criminal justice systems is to recoup administrative costs from those arrested, prosecuted, incarcerated and supervised within criminal justice systems.44 While states usually enact legislation authorizing assessment of fees at each stage of the criminal justice process, these charges resemble landmines: they are "hidden" and "scattered throughout every state code,"45 and have the capacity to destroy financially those they come in contact with. As a result, it is difficult for any given defendant, defense attorney, or even policymaker to fully comprehend the financial sanction attached to a conviction or sentence.

The National Institute of Correction's first comprehensive analysis of economic sanctions, released in 1988, provided an overview of the types of financial consequences levied upon arrest, conviction, and sentence.46 Fines, costs, and restitution, perhaps the most familiar forms of economic sanctions, are usually formal penalties explicitly set forth in the court's Judgment and Sentence of the defendant, like the assessments Mr. Rideau faced. Fines are the traditional monetary penalty, usually imposed according to severity of crime, to punish an individual. Court costs are fees adopted and imposed by jurisdictions on most convicted persons, to cover a variety of court expenses that may include maintenance of court facilities, service of warrants, and law enforcement officers' retirement funds.47 Restitution is a court-ordered "payment by the offender to the victim for financial losses, and embodies both the just deserts notion of offense-based penalties and concern for the victim,"48 and may be collected at probation or parole stages.49

Service fees, a second category of charges, may arise before or after conviction and cover the costs that arise when someone in the criminal justice system is required to use certain services. Pre-conviction service fees include the jail book-in fee levied at the time of arrest; jail per diems assessed to cover the cost of a pre-trial detention stay in jail; public defender application fees, charged when someone seeks court appointed counsel; and the bail investigation fee assessed when the court determines the likelihood of the accused appearing at trial. Post-conviction service levies include pre-sentence report fees to defray the cost of gathering information about the defendant that influences his sentence; public defender recoupment fee, charged to offset the cost of appointed counsel; residential fees levied on convicted persons in a residential or work release center (like Ms. Hurley's), which is usually a percentage of gross income, or a flat fee for room and board. Upon release additional service fees attach, like parole or probation supervision fees, often a monthly assessment for supervision during the period of supervision.

Special assessments, a third category, are automatically levied on every offender who comes before that court or on all persons guilty of a particular offense. These levies usually include victim advocate and victim compensation fees,50 revenues charged to support victim advocate offices in jurisdictions and amass funds set aside to compensate victims.

Given the range of economic sanctions now commonly utilized by jurisdictions across the country -- fines, costs, restitution, service fees and special assessments -- people entering the justice system are unlikely to leave it without facing a financial obligation they did not have before going in. Increasingly those debts are unrelated to achieving the criminal system?s putative goals of punishment, deterrence, incapacitation, and rehabilitation. Rather, those assessments are designed to defray system costs.

Two service fees, jail fees and probation fees, are particularly ripe for discussion. Those fees are gaining in popularity in jurisdictions across the country and accumulate quickly, since jurisdictions usually assess jail fees on a daily basis and probation fees on a monthly basis. As the Clinch County sheriff demonstrated in forcing pre-trial detainees to sign promissory notes to pay for room and board or return to jail, fee payments linked to freedom are particularly critical. These fees are discussed in the next section.

The Growing Cost of Detention
and Supervision

To understand the impact of jail and probation fees, it is important first to understand the demographics of the populations forced to pay them. As previously noted, as of 2005 there were seven million people in the federal, state, or local adult correctional population, either incarcerated or in the community.51 What these figures mean is that one in every 136 U.S. residents was in prison or jail.52 There were 1,446,269 people in prison, and 747,529 people in jail,53 figures representing a 1.7 percent growth in prison and a 4.7 percent growth in jail populations.54 Over 4.1 million people were on probation, and 784,408 people were on parole.55 By yearend 2005 both the probation and parole populations had grown, 0.5 percent and 1.6 percent respectively.56 Fifty- five percent of those on probation are white, 30 percent are African-American, and 13 percent are Latina.57 Parole data show whites comprised 41 percent, African-Americans, 40 percent, and Latinos, 18 percent of adults on parole.58 Along with the burgeoning population of people in jails and prisons or on probation or parole, the cost of the criminal justice system has grown, leading policymakers and legislators scrambling to find new sources of revenue without jeopardizing their political futures by raising taxes.

Jail Fees are Common, and Costly

In 2005 the U.S. Department of Justice, National Institute of Corrections surveyed state jails across the country "[t]o explore the extent to which local jails are charging fees to jail inmates," "[t]o learn the actual amounts of the fees that are being charged and the revenues that are being generated," and "[t]o learn jail managers' views on the effectiveness of charging fees."59 This 2005 survey does not reflect a representative national sample, however it does provide "substantial information on jails" current practices related to charging inmates for programs and services.60

The report classifies jail fees as either a "'program fee' . . . charged to jail inmates who are participating in a program that is not a basic element of jail operations, or who are receiving a program-related service";61 or, alternatively, as non-program fees assessed in relation to everyday facility operations and services.62 The purposes of non-program fees are to offset administrative costs, the costs of housing prisoners, costs of providing routine services (like phone service and hair cuts), the expense of medical services, and to deter the frivolous use of medical services.63 Ninety percent of the jails that responded were charging jail inmate fees,64 with the most common charges being in the "non-program" fee category for health-related services, like prescriptions (59 percent of respondents) and physician visits (59 percent of respondents), and participation in work release programs (58 percent of respondents). These findings corroborate those of a 1997 NIC study of the largest jails nationwide that found "charging of inmate fees is both prevalent and increasing among the agencies surveyed," with the most common charges imposed for medical care and participation in work release programs, and the most revenues generated by telephone services, work release programs, and home detention.65

The table below summarizes the prevalence of jail fees and was created by the 2005 NIC Jail Fees Report of 2004 jail revenues. The NIC report captured program and non-program categories, as well as the number of agencies assessing the fee and the total annual revenues received from all survey respondents.

State jail officials regularly collect fees from prisoners by deducting the fees from funds, often deposited by family members, in prisoner accounts and by taking cash directly from them upon arrest. In a 2006 lawsuit challenging collection practices in Kenton and Campbell counties in Kentucky, a federal court upheld the jails' right to deduct money directly from commissary accounts of jail prisoners.66 Kenton County Attorney Garry Edmondson called the decision "an important victory for all counties," concluding "[t]he order recognizes that inmates, not the taxpayers, should bear the costs of their own incarceration."67 68

Dean v. Lehman,69 a 2001 case decided by the Washington State Supreme Court, also addressed the legality of automatic deduction of funds from inmate accounts. RCW 72.09.480(2), a 1995 state statute, "authoriz[ed] specified deductions from any outside funds sent to DOC inmates."70

Husbands and wives depositing funds into their spouses' prison accounts challenged the statute, convincing a lower court to invalidate it as a violation of tax law requirements, an unconstitutional taking of property, and an unlawful withholding of earned interest on the prisoner savings account.71 On appeal, however, the state's high court reversed the lower court in part, holding that the automatic deductions were not a tax, and therefore violated neither tax law nor the state and federal takings clauses. The Washington Supreme Court explained "the deductions authorized by [the statute] are essentially akin to a direct 'user fee,' in that they allow the DOC to recoup its expenditures, but no more. In essence, an inmate is being asked to reimburse the State because the inmate 'has made it necessary for the State to keep and maintain him at a large cost.'" The court did not explain how giving money to a victims fund was a "user fee" as the dissent noted.72

Elsewhere, at Hampton Roads Regional Jail, Virginia, a federal court upheld a fee of $1 per day directly deducted from pre-trial detainees' prisoner accounts to pay for housing costs.73

Federal courts have invalidated jail book-in fee procedures allowing officials to take funds directly from prisoners upon their arrest. In 2006, the court struck down a Washington jail booking fee statute74 finding it and Spokane jail policies implementing the provision "facially unconstitutional in that they deprive persons of their property without due process in violation of the Fourteenth Amendment."75 The court found the state lacked a specific need for immediate seizures in the absence of a pre-deprivation hearing or determination of guilt.76

The Hamilton County, Ohio, program of confiscating from an arrested individual any "cash-on-hand" to pay up to $30 for a "Book-in Fee," was struck down by a federal court as a violation of due process,77 with the court concluding "the detainee's 'obligation' to pay for costs of being booked-in cannot be finally determined until after that detainee's conviction."78

This brief review of select cases is by no means comprehensive; however it reveals two themes that arise when courts consider the legitimacy of jail fees. The legality of jail fees hinges on how courts classify the fee: as punishment, a tax, or a user fee. It also depends upon whether procedural safeguards are in place to ensure state officials do not abuse their fee collection powers or take money from someone other than a "bad guy."

Still, the dissenting opinion in the Washington Supreme Court case upholding automatic deductions offers a straightforward critique of the problem with automatic deductions from prisoner accounts that could easily apply to all forms of cost-related assessments:

"I have scratched my head more than once trying to determine what public good is promoted by a statute that essentially authorized the seizure of 35 percent of every cent that a prison inmate's spouse sends to the inmate. While I do not know this fact for certain, I feel comfortable believing that many, if not most, of the spouses of inmates are low income individuals and that some may even be beneficiaries of forms of public assistance. Consequently, the money they send to the prisons may not be easy for them to acquire. When the State takes almost half of this money from the grasp of the inmate, the needs of the inmate will often have to be met by another contribution from the spouse. These spouses, who are mostly women, must then dig deep again if they are to offset the State's cut. In doing so they undoubtedly deprive themselves of funds that could be devoted to the purchase of necessities for them and their children. Such a scheme strikes me as not only unwise but unfair.79"

The Cost of Staying Out of Jail

While there are currently no contemporary studies of probation fee collection practices, evidence of national trends, most notably that documented by the Vera Institute of Justice,80 suggests the number of jurisdictions charging probationer supervision fees has grown since a 1986 NIC survey concluding that nearly half of states then had probation supervision fees in place. That survey found 24 states assessed fees for adult supervision services, typically "rang[ing] from $10 to $50 per month," 5 states assessed fees for adult investigations/pre-sentence reports, typically "rang[ing] from $75 to $300 per report," that 5 states assessed fees for specific programs (e.g. drug/alcohol monitoring or treatment programs); and 3 states assessed fees for juvenile supervision and investigation).81 According to the American Probation and Parole Association, "[m]ost long-range economic forecasts point to a continued increased competition for declining public revenues. In this economic environment, it is reasonable to conclude that the trend towards charging supervision fees will continue."82

Probation administrators have expressed differing opinions about the use of probation service fees, with some being "adamantly oppose[d]" to them, while others believe supervision fees help secure programs "central to fulfilling [their] mission."83 The role of probation departments in recouping fees from probationers varies from jurisdiction to jurisdiction. In some, probation agencies may not be responsible for collection of fees, in others, they may collect payments on all economic sanctions -- from victim restitution, to court costs, to probation service fees. Payment of the range of economic sanctions is often a condition of successful probation.

One study has found that "[p]robation officers generally believe that collecting fees takes too much time and infringes on their ability to do what they consider to be important duties."84 To increase the likelihood of fee recovery some counties use collection of fees as a method of evaluating their probation officers' overall performance.85

The monthly payments sought by probation are sometimes steep, as are the consequences for their non-payment. In Louisiana, for example, individuals on probation may be required to pay a probation supervision fee of up to $100 per month, and a court can condition probation on payments to various system-related funds including those for indigent defense, the criminal court, victim compensation and privately funded crime stoppers organizations, as well as reimbursement for other court and law enforcement costs.86 If a condition of probation is violated, the individual is subject to arrest which can lead to imposition of additional probation conditions, increased supervision, incarceration, or revocation.87 In Ohio, a court can order probationers to pay up to a $50 monthly supervision fee as a condition of probation. Failure to pay may warrant the imposition of additional community control sanctions,88 or a modification of the offender's sentence.89 In Arizona, for example, officials will extend a person's probationary period until restitution has been fully paid off.90 Non-payment or late payment may lead to the imposition of collections fees and interest creating a financial hole for probationers.91

A Texas study established that "70.8% of those with unstable employment histories . . . had negative probation outcomes. . . ."92 Paradoxically it also found that Harris County judges were more likely to impose miscellaneous fees and fines on probationers with unstable employment histories than those with stable histories.93 Another study shows probationers in rural counties have a higher chance of being assessed probation supervision fees than those in urban counties.94

Arizona has made its county probation agencies responsible for collecting all economic sanctions, and has even determined the precise order by which sanctions are to be paid. Payment of restitution, for example, is given the highest priority, while payment of the "prison construction and operations fee" is number seven on the list.95 Arizona discourages court modification of payment orders, instructing probation officers to "neither request that the Court adjust the payment amount or frequency of payment, nor request that the Court delete or exonerate any delinquency or order of Probation Service Fee during the term of probation."96 The American Probation and Parole Association has noted that "[o]f all factors affecting collections, the degree of access to fee payments is the most significant. Organizations which are able to keep part or all of the supervision fees collected, collect more."97

In 1997 the Georgia legislature passed a law placing supervision of misdemeanor probationers in the hands of private companies. The supervision fee the company charged contributed to Sabrina Byrd's jailing in 2003. Byrd, the single mother of three, had never been involved in the criminal justice system. That changed, however, when she failed to pay misdemeanor fines associated with failure to leash her dogs. Unable to pay the fees, which totaled $852, she was placed by the court on probation and devised a payment plan requiring her to both pay down fines plus a monthly service fee of $39 charged by a private probation supervision company. The Court's imposition of the $124 monthly payment was too much for Byrd to pay. She stopped showing up for probation meetings and was arrested and jailed for violating her probation.98

Byrd's snowballing experience in the criminal justice system was both predictable and common. Over a decade earlier, in 1986, the National Institute of Corrections predicted just such a scenario would result from probation supervision fees. "The added stress caused by inability to pay may cause probationers to miss appointments, thus negating any positive effect of supervision and sometimes resulting in revocation for failure to comply with the conditions of probation."99

Current fee trends appear to weaken our constitutional protection against jailing people for being poor.100 One could argue that people like Byrd are not imprisoned for being poor and unable to pay, but for their failure to attend probation meetings. But Byrd's economic status and status as a probationer were inextricably intertwined. If she had the money to pay the fine in the first place, she would not have been placed on probation, and if she had not been on probation she would not have an additional $39 payment to the private probation company on top of her fines. And of course, but for the court's supervision she would not have landed in jail.

Does Cost-Shifting Achieve Its Intended Goals?

Earlier, this article described several rationales policymakers put forth to justify cost-shifting economic sanctions: limiting the financial burden of wrongdoing, avoiding tax increases, ensuring victim compensation, appearing fiscally responsible, and teaching moral and fiscal lessons. Policymakers fail to discuss how cost shifting protects bloated justice budgets that benefit those with a financial stake in keeping jails and prisons fully occupied, by helping to hush taxpayer demand for more effective alternatives to criminalization and incarceration. It is natural to wonder how much those interests -- private prison investors, guard unions, telephone companies, and prison and jail service industries -- influence policymaker decisions about whether to shift costs or cut them. At a minimum we must evaluate whether cost-recovery sanctions are achieving the stated goals of policymakers. This article's review of the evidence suggests they are not.

Does Imposition Of Cost-Recovery Sanctions Limit The Public's Financial Burden?

Evidence suggests they may not for two main reasons. First, recovering monies from people may be akin to drawing blood from a stone. When one cannot find a job and when one is faced with other mandatory financial obligations, like child support, one simply may not have money left to pay the system's costs. The public savings suggested in the budget ledgers, therefore, may never materialize. Moreover, because cost-recovery sanctions are often levied against the poor, further research is needed to determine whether payments made actually come from other sources of public dollars, like public benefits. Whether the public is paying the cost of the criminal justices system directly or indirectly, through the transfer of public benefit dollars to pay down criminal debt, the evidence suggests cost-recovery sanctions do little to relieve the public's financial burden.

Does Imposition Of Cost-Recovery Sanctions Limit Tax Payer Burden?

The evidence suggests tax payers, albeit a potentially narrower slice of them, are paying their taxes as well as the cost-recovery sanctions that allegedly reduce their tax burden. Individuals assessed the fees may also be taxpayers, holding down tax-paying jobs while on work release or under community supervision, and still be assessed additional costs to cover the system. Family members of those in the system face a triple threat: they pay taxes (that cover the cost of the system), contribute to jail and prison inmate accounts (that officials intercept to cover the cost of the system), and may help released brothers, mothers, daughters, and fathers to repay old fees and new ones (like probation supervision costs).

Does Imposition Of Cost-Recovery Sanctions Ensure Crime Victims Are Properly Compensated?

Imposition of cost-recovery sanctions actually seems to undermine the penological goals of the system, including crime victim compensation. These additional financial burdens create competition among victims and justice system administrators for pieces of a small pie.

Does Imposition Of Cost-Recovery Sanctions Allow Policy Makers To Appear Fiscally Responsible?

This rationale for promoting cost-shifting to people in the system is an interesting one, focused on appearances rather than sound policy. Even if appearances were a legitimate basis for making policy, the evidence suggests these impositions do not reflect favorably on policymakers. To the contrary, cost-shifting demonstrates willingness to place political expediency over true fiscal responsibility which requires tough decisions about cutting costs and raising revenues. The ability to impose costs on the criminal system's captive audience allows policymakers to avoid these hard questions, and to avoid disappointing those with a fiscal interest in keeping jails and prisons full.

Does Imposition Of Cost-Recovery Sanctions Teach Moral Lessons
And Fiscal Responsibility?

For many people leaving prison, criminal financial obligations hang over their heads like the Sword of Damocles, ready to drop at any moment. High criminal debt and low earning potential combine to frustrate efforts to achieve financial and social stability, and to live up to one's obligations to family and community after involvement in the system. Research in the child support context illustrates a tipping point at which the size of debt relative to income creates an unwanted backlash. Studies show that compliance with child support orders is strongly linked to abilty to pay, and that compliance was significantly lower when monthly orders were more than 20 percent of a parent's income, than when orders were 15 percent or less of income101. If criminal financial obligations are aimed at furthering responsibility, they cannot be so burdensome as to make work futile.

Policymakers Must Reconsider The Use Of Cost-Recovery Sanctions

20 dollars here, 15 dollars there -- for a busy legislator focused on ending the fiscal year in the black, enacting these types of monetary sanctions may appear to be sensible, relatively painless, financial fixes. But as lawmakers continue to shift more and more of the costs of the criminal justice system onto those arrested, charged, prosecuted, and incarcerated, it is critical that they understand the entire economic sanctions picture, and resist the current piece-meal approach. Across the country, both those burdened with the debt, as well as state policymakers, probation officers, judges, and court administrators increasingly understand the big picture, and are troubled by it. They are urging reconsideration of existing cost-recovery fees and cautioning against creation of new ones.

Policymakers can heed their call by: 1) conducting (and regularly updating) an inventory of all criminal fees, fines and economic sanctions on their books; 2) performing an impact analysis when a new economic sanction is proposed that includes assessment of the population most likely to face the sanction, the amount of sanctions already paid by that population, and the proposal's effect on public safety; and 3) instituting a moratorium on new sanctions or sanction increases until the proper research and impact procedures are in place. Without protections like these, responsible decision-making in the area of criminal economic sanctions is simply not possible.


1 The author wishes to thank Nora Christenson, a Brennan Center summer intern, and Bran Noonan, a volunteer lawyer, for their essential research and drafting for this article, as well as Brennan Center colleagues Lynn Lu, for her tireless work on all aspects of this chapter, and Chris Muller for his always helpful review and insights. Finally, the author thanks Rene Kathawala, Mick Peters, and their firm, Orrick, Harrington, and Sutcliffe, LLP, for their expert cite-checking.

2 Michigan State Senator Alan Cropsey, chair of the Judiciary Committee and member of the Appropriations Committee, Karen Imas & Rachel McLean, The Council of State Governments Eastern Regional Conference, Issue Brief, "Policymakers Discuss Practical Solutions to Financial Obligations of People Released from Prisons and Jails," 1, May 2006.

3 The Honorable Judge John Andrew West of the Court of Common Pleas in Ohio, Karen Imas & Rachel McLean, The Council of State Governments Eastern Regional Conference, Issue Brief, "Policymakers Discuss Practical Solutions to Financial Obligations of People Released from Prisons and Jails," 2, May 2006.

4 NAACP Legal Defense and Educational Fund, Inc., website,

5 Appeals Court Decision and Opinion Vacating Order to Pay Costs, State v. Rideau, No. 2005-1470, 2006 WL 3091892 at *3 (La. Ct. App. Nov. 2, 2006). The first reversal, handed down by the U.S. Supreme Court, called Rideau's trial a 'kangaroo court,' and the events leading up to it a 'spectacle.' Id. at *1.

6 Motion to Vacate March 15, 2005 Order, State v. Rideau, No. 15321-01, 1 (May 2, 2005), available at

7 See Appeals Court Decision and Opinion Vacating Order to Pay Costs, State v. Rideau, No. 2005-1470, 2006 WL 3091892 at *1 (La. Ct. App. Nov. 2, 2006), see also Adam Liptak, Debt to Society is Least of Costs of Ex-Convicts, N. Y. Times, Feb. 23, 2006, at A1.

8 See Appeals Court Decision and Opinion Vacating Order to Pay Costs, State v. Rideau, No. 2005-1470, 2006 WL 3091892 at *9 (La. Ct. App. Nov. 2, 2006).

9 Appeals Court Decision and Opinion Vacating Order to Pay Costs, State v. Rideau, No. 2005-1470, 2006 WL 3091892 at *16 (La. Ct. App. Nov. 2, 2006).

10 Appeals Court Decision and Opinion Vacating Order to Pay Costs, State v. Rideau, No. 2005-1470, 2006 WL 3091892 at *9 (La. Ct. App. Nov. 2, 2006).

11 See Original Application for a Supervisory Writ of Review Filed on Behalf of the Applicant, The State of Louisiana, State v. Rideau, No. KA-05-1470 (La. Ct. App. Nov. 29, 2006).

12 Jon Wool & Don Stemen, Vera Institute of Justice, Changing Fortunes or Changing Attitudes: Sentencing and Corrections Reforms in 2003, 4 (2004).

13 See Brief in Support of Plaintiffs: Motion for Summary Judgment, Williams v. Clinch County, No. 7:04-CV-124-HL at 1 (M.D. Ga. Oct. 11, 2005).

14 Carlos Campos, Jail Inmates No Longer Charged Rent: Pretrial Detainees in Clinch Had Paid Room and Board, Atlanta Journal-Constitution, Apr. 18, 2006 at 4B.

15 Id.

16 Id.

17 Dean v. Lehman, 18 P.3d 523, 533 (Wash. 2001). For further discussion of the fee issues in this case see infra at 25-26.

18 Carlos Campos, Poverty Keeps Woman Jailed, Lawsuit Says, Atlanta Journal-Constitution, Sept. 19, 2006, at 1B.

19 "To many taxpayers, it seems unfair to be burdened with providing food, clothing, shelter, medical, and other expenses for persons convicted of criminal wrongdoing." Donald J. Amboyer, Jail Administrator, Macomb Sheriff Department, Mt. Clemens, Michigan, U.S. Dep?t of Justice, Nat'l Inst. of Corr., Large Jail Network Bulletin 2, (Summer 1992).

20 "[L]egislators are reluctant to introduce new taxes to fund the operations of the judiciary." Karen Imas & Rachel McLean, The Council of State Governments Eastern Regional Conference, Issue Brief, "Policymakers Discuss Practical Solutions to Financial Obligations of People Released from Prisons and Jails," 2, May 2006 (quoting Assemblywoman Shelia Leslie, a member of the Nevada State Assembly and Specialty Courts Coordinator in Reno).

21 "'Inmates are being held financially accountable for their crimes and the pain and suffering that they have caused victims and their families,' said [New York State Department of Corrections] Commissioner [Glenn] Goord." Inmates pay $4M annually in fines, fees to taxpayers, crime victims, N.Y. State Dep't of Corr. Servs., DOCS Today 4 (Apr. 2004). (Commissioner Goord retired from the DOC's post in July 2006.)

22 Fahy G. Mullaney, U.S. Dept. of Justice, Nat'l Inst. of Corr., Economic Sanctions in Community Corrections 1-2 (1988) (emphases appear in original) (hereinafter referred to as "Economic Sanctions Report"), available at

23 Former New York Corrections Commissioner Goord explains fees "teach inmates: [they] are either imposed to deter misconduct that often-times endangers staff or other inmates, or to teach inmates that there is a cost associated with the privileges that they seek." Inmates pay $4M annually in fines, fees to taxpayers, crime victims, N.Y. State Dep't of Corr. Servs., DOCS Today 4 (Apr. 2004).

24 See Federal Bureau of Prisons Program Statement, Inmate Financial Responsibility Program, Section 545.10, 1 ("staff will assist the inmate in developing a financial plan for meeting [legitimate financial] obligations and . . .shall consider the inmate's efforts to fulfill those obligations as indicative of that individual's acceptance and demonstrated level of responsibility")

25 Marc Mauer, Race to Incarcerate 178 (2006).

26 N.Y. State Bar Ass'n, Re-entry and Reintegration: The Road to Public Safety, Report and Recommendations of the Special Committee on Collateral Consequences of Criminal Proceedings 200 (2006) (citation omitted).

27 Mark H. Bergstrom & R. Barry Ruback, Economic Sanctions in Criminal Justice: Purposes, Effects and Implications, 33 Crim. Justice & Behav. 242, 264 (2006) (citations omitted).

28 Paige M. Harrison & Allen J. Beck, U.S. Dep't of Justice, Bureau of Justice Statistics, Prisoners in 2005, 8 (2006), available at

29 Id.

30 Carmen DeNavas-Walt, Bernadette D. Proctor & Cheryl Hill Lee, U.S. Census Bureau, Income, Poverty, and Health Insurance Coverage in the United States: 2005, 5 (2006), available at

31 Id.

32 The Census Bureau uses a set of money income thresholds that vary by family size and composition to determine who is in poverty. For example, a family of four that includes two related children under 18 the threshold amount is $19,806. Income above this amount means the family is not in poverty, while income below the sum means the family is in poverty. For a list of the poverty thresholds in 2005, see Carmen DeNavas-Walt, Bernadette D. Proctor & Cheryl Hill Lee, U.S. Census Bureau, Income, Poverty, and Health Insurance Coverage in the United States: 2005, 45 (2006), available at

33 Id. at 13-15.

34 Id. at 13-14.

35 As early as 1988, the National Institute of Corrections observed that economic sanctions against people involved in the criminal justice system were expanding. Economic Sanctions Report at 1. The number of states charging a probation fee, for example, grew from 9 in 1980 to 24 in 1986. Id.

36 730 Ill. Comp. Stat. 5/5-5-10.

37 Kan. Stat. Ann. § 22-4529.

38 Minn. Stat. Ann. § 611.27.

39 Jon Wool & Don Stemen, Vera Institute of Justice, Changing Fortunes or Changing Attitudes: Sentencing and Corrections Reforms in 2003, 4 (2004).

40 Karen Imas & Rachel McLean, The Council of State Governments Eastern Regional Conference, Issue Brief, "Policymakers Discuss Practical Solutions to Financial Obligations of People Released from Prisons and Jails," 2-3, May 2006. NIC expressed this sentiment twenty years earlier in the Economic Sanctions Report: "Concurrent with these leaps has been an incremental growth resulting from the piecemeal adoption of fees, program by program, agency by agency." Economic Sanctions Report at 1.

41 Lauren E. Glaze & Thomas P. Bonczar, U.S. Dep't of Justice, Bureau of Justice Statistics, Probation and Parole in the United States, 2005, 1 (2006), available at

42 Economic Sanctions Report at iv.

43 Economic Sanctions Report at iv.

44 "In New York, and all across the country, state legislatures are increasing existing fees, fines, and surcharges and creating new ones. Parole and probation supervision fees, surcharges for convictions of violations, misdemeanors, and felonies, incarceration fees, and DNA databank fees are all examples of financial penalties." Center for Community Alternatives, "Sentencing for Dollars: Policy Considerations," available at

45 Gabriel Jack Chin & Margaret Colgate Love, Introduction to Symposium on the Collateral Sanctions in Theory and Practice, 36 U. Tol. L. R. ix (2005) available at The American Bar Association recently recommended that state "legislature[s] should collect, set out or reference all collateral sanctions in a single chapter or section of the jurisdiction's criminal code" in order to "provide the means by which information concerning the collateral sanctions that are applicable to a particular offense is readily available." Am. Bar. Ass'n, Standards for Criminal Justice Section Standards, Collateral Sanctions and Discretionary Disqualification of Convicted Persons, Standards §§ 19-2.1, 19-1.2(a)(iii) (2006), available at

46 Economic Sanctions Report at vii-viii.

47 For example in Washington "'cost of incarceration' means the cost of providing an inmate with shelter, food, clothing, transportation, supervision, and other services and supplies as may be necessary for the maintenance and support of the inmate while in custody of the department . . ." Dean v. Lehman, 18 P.3d 523, 533 (Wash. 2001).

48 Mark H. Bergstrom & R. Barry Ruback, Economic Sanctions in Criminal Justice: Purposes, Effects and Implications, 33 Crim. Justice & Behav. 242, 249 (2006).

49 Id. at 250.

50 According to the U.S. Department of Justice Office for Victims of Crime, "nearly every state has some form of general offender assessment, penalty, or surcharge that all convicted defendants must pay" that goes to funds set aside for victim services or compensation. U.S. Dep't of Justice, Office for Victims of Crime, "State Legislative Approaches to Funding for Victims' Services," Legal Series Bulletin #9, 1 (2003), available at

51 Lauren E. Glaze & Thomas P. Bonczar, U.S. Dep't of Justice, Bureau of Justice Statistics, Probation and Parole in the United States, 2005, 1 (2006), available at

52 Paige M. Harrison & Allen J. Beck, U.S. Dep't of Justice, Bureau of Justice Statistics, Prisoners in 2005, 1 (2006), available at

53 Id.

54 See fn. 66.

55 Id.

56 Id.

57 Id. at 6, tbl. 2.

58 Id. at 9, tbl. 6.

59 Barbara Krauth & Karin Stayton, U.S. Dep't of Justice, Nat'l Inst. of Corr., Fees Paid by Jail Inmates: Fee Categories, Revenues, and Management Perspectives in a Sample of U.S. Jails, 1 (Connie Clem, ed., 2005) (hereinafter referred to as "NIC Jail Fees Report"), available at

60 Id. at 4. "Responses were received from jurisdictions in 28 states and the District of Columbia. . . ." Id.

61 NIC Jail Fees Report at 6.

62 NIC Jail Fees Report at 15.

63 Id. at 15-16.

64 NIC Jail Fees Report at 2. Id.

65 U.S. Dep't of Justice, Nat'l Inst. of Corr., Fees Paid by Jail Inmates: Findings From the Nation's Largest Jails, Special Issues in Corrections, 2 (February 1997), available at

66 Kentucky law requires prisoners to reimburse "costs of confinement." See Ky. Rev. Stat. Ann. § 441.265 ("a prisoner in a county jail shall be required by the sentencing court to reimburse the county for expenses incurred by reason of the prisoner's confinement as set out in this section, except for good cause shown." Id. § 441.265(1). In Campbell County, jailors confiscate an initial $20 from an arrestee's possessions and subsequently deduct 25 percent daily from inmate accounts as reimbursement for costs of confinement, up to $50 per day, and a mandatory $30 "booking fee." In neighboring Kenton County, jailors deduct 50 percent from a prisoner's account until charges are paid in full. See Sickles v. Campbell Cty, 439 F. Supp. 2d 751, 752 (E.D. Ky. 2006); see also Plaintiff's Class Action Complaint and Jury Demand, Sickles v. Campbell Cty., 2005 WL 1530654 at ¶ 13 (May 17, 2005).

67 Paul A. Long, Judge OKs seizing inmates' money, Kentucky Post, July 25, 2006.

68 The federal Bureau of Prisons requires prisoners in its facilities to pay their "cost of incarceration," and runs the "Inmate Financial Responsibility Program" (IFRP), which ostensibly "encourages each sentenced inmate to meet his or her legitimate financial obligations [by assisting] the inmate in developing a financial plan for meeting those obligations." Program Statement: Financial Responsibility Program, Inmate, U.S. Dep't of Justice, Federal Bureau of Prisons, § 545.10-1 (Aug, 15, 2005). The IFRP requirements do not apply to pretrial or detainee prisoners. Id. § 545.10-6.

69 18 P.3d 523 (Wash. 2001).

70 Id. at 526. Specifically, it permitted deduction of 35 percent of such funds, re-routed as follows:

(i) Five percent to the public safety and education account for the purpose of crime victims' compensation;

(ii) Ten percent to a department personal inmate savings account; and

(iii) Twenty percent to the department to contribute to the cost of incarceration.

71 Id. at 527.

72 Id. at 533 (citation omitted). The appellate court upheld the finding that the statute unlawfully diverted interest earned on the inmate savings accounts to cover costs of incarceration since "it belonged to the inmates." Id. at 536.

73See Slade v. Hampton Roads Reg'l Jail, 407 F.3d 243, 247 (4th Cir. 2005) (finding this policy is not a violation of due process because the charge does not amount to a punishment).

74"A governing unit may require that each person who is booked at a city, county, or regional jail pay a fee based on the jail's actual booking costs or one hundred dollars, whichever is less, to the sheriff's department of the county or police chief of the city in which the jail is located. The fee is payable immediately from any money then possessed by the person being booked, or any money deposited with the sheriff's department or city jail administration on the person's behalf." Wash. Rev. Code Ann. §70.48.390 (2002).

75Order Granting Plaintiff's Motion for Partial Summary Judgment, Huss v. Spokane, No. CV-05-180-FVS at 15 (E.D Wa. Aug. 29, 2006).

76Order Granting Plaintiff's Motion for Partial Summary Judgment, Huss v. Spokane, No. CV-05-180-FVS at 13-14 (E.D. Wa. Aug. 29, 2006).

77See Allen v. Leis, 213 F.Supp.2d 819 (S.D. Ohio 2002) (finding Hamilton County's "Pay for Stay" program offered no procedural protections and therefore violated due process even though it was possible to obtain a refund).

78Id. at 830.

79Dean v. Lehman, 18 P.3d 523, 539-40 (Wash. 2001). For a full discussion of incarceration's impact on the family, see Donald Braman, Doing Time on the Outside: Incarceration and Family Life in Urban America (2004).

80Jon Wool & Don Stemen, Vera Institute of Justice, Changing Fortunes or Changing Attitudes: Sentencing and Corrections Reforms in 2003, 4 (2004), available at See Kirsten D. Levingston, Op-Ed., The Cost of Staying out of Jail, N.Y. Times, April 2, 2006, § 14, at 11 (describing a 2006 proposal by New York Governor George Pataki to permit counties to institute monthly probation supervision fees).

81See S. Christopher Baird, Douglas A. Holien & Audrey J. Bakke, U.S. Dep't of Justice, Nat'l Inst. of Corr., Fees for Probation Services 14 tbl. 3.1, 15 (1986), available at

82Am. Probation and Parole Ass'n., "Supervision Fees," available at

83 S. Christopher Baird, Douglas A. Holien & Audrey J. Bakke, U.S. Dep't of Justice, Nat'l Inst. of Corr., Fees for Probation Services 1 (1986), available at

84Mark H. Bergstrom & R. Barry Ruback, Economic Sanctions in Criminal Justice: Purposes, Effects and Implications, 33 Crim. Justice & Behav. 242, 255 (2006); see also S. Christopher Baird, et. al., Nat'l Council on Crime and Delinquency, Projecting Probation Fee Revenues 9, 10 tbl. 2 (1986) (draft), available at (finding that 49 percent of agencies sampled in a study of probation fees "consciously g[a]ve less priority to [collection of probation] fees" and that 64.2 percent of the agencies used "Late Payment Notices" as collection methods versus only 12.5 percent who garnished probationers' wages).

85 Mark H. Bergstrom & R. Barry Ruback, Economic Sanctions in Criminal Justice: Purposes, Effects and Implications, 33 Crim. Justice & Behav. 242, 255 (2006) (stating that collection rates were higher when a factor in job performance evaluations).

86 La. Code Crim. Proc. Ann. art. 895.1(B).

87 See id. arts. 899, 900.

88 Ohio Rev. Code Ann. § 2951.021.

89 Ohio Rev. Code § 2951.021.

90 Ariz. Rev. Stat. Ann. § 13-902(C).

91 For example, Florida allows the clerk of the court to assess a collections fee of up to 40 percent of the debt for defendants who default on payments. Fla. Stat. Ann. § 28.246. Similarly, in Ohio, once a financial sanction is imposed, it is subject to enforcement through civil remedies, and collections are conducted by the clerk of the court. See Ohio Rev. Code Ann. § 2929.18(A)(5)(a), (D), (F) (governing the imposition and collection of fees for community control sanctions); id. § 2929.15 (enumerating community control sanctions, including probation).

92 Gerald R. Wheeler, et. al., "Economic Sanctions in Perspective: Do Probationers' Characteristics Affect Fee Assessment, Payment and Outcome" at 12 (1989) (manuscript), available at

93 Id. at 9-10 (miscellaneous fees and fines were assessed on "52.1 % of those with unstable employment histories . . . whereas 41.9 % of those with stable employment histories" were assigned such fees and fines).

94 Mark H. Bergstrom & R. Barry Ruback, Economic Sanctions in Criminal Justice: Purposes, Effects and Implications, 33 Crim. Justice & Behav. 242, 255-56 (2006).

95 Ariz. Code of Judic. Admin. pt. 4, ch. 3, § 4-301(e)(7), available at

96 Id.

97 Am. Probation and Parole Ass'n., "Supervision Fees," available at (emphasis omitted). The APPA also notes "[t]he ability to impose strong sanctions (e.g. jail, work release) is moderately associated with increased collections." Id.

98 Carlos Campos, Probation Fees Unfairly Punish Poor, Critics Say, Atlanta Journal-Constitution, Sept. 24, 2003, at C1.

99 S. Christopher Baird, Douglas A. Holien & Audrey J. Bakke, U.S. Dep't of Justice, Nat'l Inst. of Corr., Fees for Probation Services viii (1986), available at

100 See Bearden v. Georgia, 461 U.S. 660, 661-62 (1983). Even those individuals who escape the most draconian sanction of incarceration stemming in part from nonpayment may nevertheless be subjected to other restraints on liberty, such as drivers license suspension or forced community service. See, e.g., Fl. Stat. Ann. § 948.01, Wash. Rev. Code Ann. § 9.94A.634. In some states, non-payment of criminal justice debt may preclude the restoration of civil rights, including the right to vote. See, e.g., Wash. Rev. Code Ann. § 9.94A.637.

101 U.S. Department of Health and Human Services, Office of Inspector General, The Establishment of Child Support Orders for Low Income Non-custodial Parents, 2000.

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