On July 20, 2011, Arizona began charging visitors what prison officials termed a “background check fee” of $25, requiring the payment before visitors are allowed to see prisoners at any of the state’s 15 prison complexes.
Since confirming that the background checks don’t cost the DOC anything, however, state officials have admitted that the fees – along with a one percent charge on all deposits made to prisoners’ accounts – were being deposited into the DOC’s Building Renewal Fund to pay for prison maintenance and repairs.
The fees, then, are an “unconstitutional tax on a single group of people” and a “special law,” according to declaratory judgment suits filed by an Arizona-based prison reform group and a state prisoner.
“The legislature in Arizona needs to stop thinking of prisoners and their families, who often are economically disadvantaged, as cash cows,” said Donna L. Hamm, executive director of Middle Ground Prison Reform. Hamm’s lawsuit, filed in September 2011 with her husband, James J. Hamm, as a co-plaintiff, argued that the visitation fee attempts to “replace what should be general taxpayer obligation.”
“It’s the responsibility of state government to pay for the maintenance of their state buildings,” Hamm told the Arizona Republic.
Prisoner David Arner filed a separate suit challenging the one percent deduction from money deposited into prisoners’ accounts, raising similar arguments. See: Arner v. Ryan, Superior Court for Maricopa County (AZ), Case No. CV 2011-096782.
The $25 visitation fee was the brainchild of Arizona Governor Jan Brewer, whose fiscal ineptitude has contributed to the state’s $1.6 billion budget deficit. State lawmakers passed legislation approving the fee, but tweaked it to apply only to visitors over the age of 18 and exempted prisoners’ attorneys and guardians of prisoners’ children. The fee is imposed on visitors only once.
“We were trying to cut the budget and think of ways that could help get some services for the Department of Corrections,” Arizona Senate chief of staff Wendy Baldo told the New York Times. She added that about $150 million in repairs at state prisons were stalled, “and it wasn’t a safe environment for the people who worked there.”
But David Fathi, director of the National Prison Project of the ACLU, said the visitation fee could end up negatively impacting public safety.
“We know that one of the best things you can do if you want people to go straight and lead a law-abiding life when they get out of prison is to continue family contact while they’re in prison,” Fathi said. “Talk about penny-wise and pound-foolish.”
As of the end of November 2011, the DOC had collected $95,090 from the background check fees imposed on visitors, according to DOC public information officer Bill Lamoreaux.
On December 19, 2011, the Superior Court granted summary judgment to the state in the lawsuit filed by Donna and James Hamm. The court rejected their argument that the background check fee imposed on prison visitors was a tax, instead holding that it was a fee and thus legally permissible. The distinction hinged on the court’s finding that “the charge at hand is voluntary ... in that the party who pays it has voluntarily asked the Department of Corrections to provide a benefit not shared by other members of society – the right to enter a highly secure and regulated facility in order to visit a person incarcerated in that facility.”
The court determined that its analysis held true even though the background check fees did not go to pay for back-ground checks, but were instead used for prison repairs and maintenance, because visitors benefited from the repair of prison buildings. The court did not address the fact that while visitors typically only frequent prison visitation areas, the fees were being used to provide maintenance and repair for all DOC buildings. See: Hamm v. Ryan, Superior Court of Maricopa County (AZ), Case No. CV 2011-097117.
Middle Ground said it would appeal the ruling. No other state prison system imposes a background check fee on visitors, according to Hamm, and prisoners’ families and friends are already subject to other types of price gouging by prison officials.
“Visitors pay inflated prices for vending machine food in the visitation rooms, as well as outrageous fees to accept collect calls [from prisoners] – and some of the profits are kicked-back to the DOC coffers,” she noted.
Sources: Arizona Republic, Arizona Capitol Times, New York Times, www.middlegroundprisonreform.org
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Related legal case
Hamm v. Ryan
|Superior Court of Maricopa County (AZ), Case No. CV 2011-097117
|State Trial Court