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Virginia Jail Pay-to-Stay Fee Constitutional

The United States Court of Appeals for the Fourth Circuit has upheld Virginia's county jail $1.00 per day pay-to-stay fee under the Due Process and Taking Clauses, even though the issue on appeal was the dismissal of the underlying action pursuant to preliminary screening under 28 U.S.C. § 1915A.

Calvin Slade, a Virginia state pretrial detainee housed in the Hampton Roads Regional Jail, challenged the jail's $1.00 per day pay-to-stay charge in federal district court. This fee was authorized by the state legislature (see: Va. Code §53.1-131.3) and implemented under a Model Plan developed by the Board of Corrections. The Plan requires prisoners to be informed of the charge upon arrival and sign a form verifying only that they were so informed. The $1.00 charge is automatically deducted. Negative balances are carried until the next stay, if any (no judgment liens), and prisoners adjudicated not guilty may seek a refund within 60 days.

Slade filed a pro se "Motion," which the United States District Court for the Eastern District of Virginia took as a 42 U.S.C. § 1983 complaint, and then dismissed sua sponte upon the initial screening required by 28 U.S.C. § 1915A. The district court found that Slade had failed to state a claim when he alleged (1) an equal protection violation, the Court finding the statute applied equally to all; and (2) a due process violation, the Court finding the $1.00 fee was implemented to defray costs, not as punishment.

On appeal, after finding Slade's injunctive relief moot, the Fourth Circuit found Slade did not adequately plead his claims under F.R.Civ.P. 8(a)(2) and thus failed to state his claims, and the dismissal should have been affirmed and the inquiry concluded. Instead, the appellate court addressed the constitutional merits anyway, ignoring the well-settled doctrine of addressing constitutional grounds only as a last resort.

First, the Court found the pay-to-stay charge did not amount to constitutional punishment of pretrial detainees under Fourteenth Amendment substantive due process. Because Slade was a pretrial detainee, the Eighth Amendment did not apply so the analysis proceeded under the Fourteenth Amendment standard announced in Bell v. Wolfish, 99 S.Ct. 1861 (1979). Slade did not show the express purpose of the daily charge was to punish or that it was not rationally related to a legitimate governmental interest.

Second, although the jail conceded that Slade had a property interest in the money charged, the Court found no Fourteenth Amendment procedural due process violation since both a property interest and a lack of deprivation procedures must be shown. With the deduction found to be ministerial in nature, with no discretion and minimal risk of error, no pre-deprivation procedures were necessary. Besides, the Court noted, Virginia law requires trials to begin within five months of a probable cause hearing, so the charge is for "only a limited period." The Court apparently did not consider the time spent in jail prior to a probable cause hearing, stays and waivers of the five-month period, time for trial, pre-sentencing and post-sentencing before transfer to prison (depending on jail backlog), as the daily charge applies during those periods as well. Post-deprivation procedures include grievances and requesting a refund if eligible.

Finally, the Court found no Takings Clause violation because the fee was more akin to a "reasonable user fee." The Court reasoned that if a state can find probable cause and deprive an individual of liberty before trial, why not his money, too?

The Court noted this was a case of first impression when applying fees to pretrial detainees, and noted several other state laws and circuit decisions upholding various fees assessed against convicted prisoners. No pre-trial detainee precedent was cited, ignoring such cases as Ohio's "Pay-for-Stay" program, which was declared unconstitutional in 2003 [PLN, June 2002; Aug. 2003]. See: Slade v. Hampton Roads Regional Jail, 407 F.3d 243 (4th Cir. 2005).

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Related legal case

Slade v. Hampton Roads Regional Jail