Utah Judge Orders Jail to Stop Seizing Prisoners’ Money for Pay-to-Stay Fees
by Matt Clarke
On April 9, 2014, Utah District Judge Michael G. Allphin signed a standing order for all criminal cases in which he presided, prohibiting Davis County Sheriff Todd Richardson, the sheriff’s office and its business manager from seizing funds from prisoners held at the county jail to reimburse costs of incarceration under a pay-to-stay policy.
The issue was raised a year earlier when prisoners contacted public defender Todd Utzinger, complaining that their personal accounts at the jail were being emptied in what they called “account sweeps” and the sheriff referred to as pay-to-stay. Davis County Attorney Troy Rawlings termed the practice “illegal, unconstitutional accounting enemas.”
“I view it as a significant violation of people’s rights,” said Rawlings. “They’re going to get sued, and they’re going to lose.”
Rawlings advised the sheriff to stop the account sweeps, which were temporarily halted. However, they began again in the fall of 2013 and renewed complaints by prisoners led Judge Allphin to issue his standing order.
A 2007 state law allows jails to collect costs from prisoners. However, it is considered restitution, requires a court order and applies only to those who have been convicted of crimes. The account sweeps at the Davis County jail were done without court orders and included the seizure of funds from pretrial detainees who had not been convicted.
Under the state law, all restitution is to be included in a pre-sentencing investigation (PSI) report and the prisoner must be afforded an opportunity to object to the restitution before sentencing. If an objection is made, the court must schedule a hearing.
In determining restitution, the court is required to take into account factors such as the prisoner’s ability to pay, the burden restitution would impose on the prisoner’s other financial obligations and the effect it might have on his or her rehabilitation. Even if the court orders restitution for costs of incarceration, the statute specifies the priority each restitution order is to be given, placing restitution to county jails behind restitution to victims, the Utah Office for Crime Victims, any other government agency, any entity that paid a reward and any insurance company that reimbursed a victim due to the crime. The law also states that any criminal fines and surcharges are to be paid before restitution for costs of incarceration.
Judge Allphin noted that neither prosecutors nor Davis County had made a request for restitution to cover jail costs, nor did the PSI reports contain references to such restitution. As a result, prisoners were being deprived of their right to notice and an opportunity to object to the restitution, and the sheriff’s office lacked legal authority to continue the practice of account sweeps. Further, the jail’s pay-to-stay policy violated the rights of crime victims and other third parties in priority positions to receive restitution payments.
Therefore, on his own initiative, and applicable to all of his pending criminal cases, Judge Allphin prohibited the sheriff’s office from confiscating funds from prisoners’ jail accounts to cover costs of incarceration, noting that when appropriate a restitution hearing may be held in individual cases to address that issue.
In September 2014 another judge, Glen Dawson, scheduled hearings to decide whether Davis County should have to return money taken from the jail accounts of former prisoners Jessica Wolfe and Anthony Christopher, while state Rep. Paul Ray announced he planned to introduce a bill clarifying when jails could seek restitution for costs of incarceration.
“Sheriff’s offices across the state are scared to do anything,” Ray stated.
Kent Hart, executive director of the Utah Association of Criminal Defense Lawyers, said the association’s members would oppose any changes to the existing law. “In the long run, it’s not saving any money,” he noted. “It’s just keeping people down and making them into lifetime criminals.”
Davis County Commissioners passed a resolution in November 2014 requiring the county to issue refunds to all prisoners whose funds were confiscated from their jail accounts without a court order since April 2010. The resolution said the county was “legally and morally obligated to reimburse individuals whose funds have been unlawfully seized.”
In 2013 alone, Davis County collected almost $370,000 from prisoners pursuant to the jail’s pay-to-stay policy, and waived another $858,000 in costs in exchange for prisoner labor at the rate of $10 per day. Presumably, the labor the county received will not be refunded.
Sources: Salt Lake Tribune, www.washingtontimes.com, www.ksl.com
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