In an academic paper published in the November 2024 issue of Theoretical Criminology, researchers Brittany Friedman, Gabriela Kirk-Werner, and April D. Fernandes examined efforts to reform what they termed the “shadow carceral state.”

While the carceral state encompasses the criminal legal system—jails, prison, parole, etc.—the shadow version consists of civil and administrative policies and practices that, while purportedly non-punitive, often have that effect. Through the shadow carceral state, “the ‘get-tough’ nature of mass incarceration is preserved but made hidden and transferred to other institutional contexts.”

The authors use a case study of the enactment and later repeal of pay-to-stay legislation in Illinois to show how reform of the shadow carceral state can be accomplished—particularly in the recent era where policymakers are trending toward a smart-on-crime approach to criminal justice issues. “As a monetary sanction, pay-to-stay fees epitomize the rapid expansion of the shadow carceral state during the rise and height of mass incarceration,” the paper notes. “Yet we know a little about efforts to repeal them.”

Illinois enacted a pay-to-stay law targeting state prisoners as early as 1981. The bi-partisan legislation allowed the state DOC to establish a per diem rate for the cost of incarceration, and authorized the Attorney General to file civil lawsuits against prisoners suspected of having sufficient assets to cover those costs. In effect, it made prisoners pay for their own confinement. The law was amended multiple times, “widening the types of assets that could be seized, explicitly preventing defendants from claiming indigency, and adding more recoupment mechanisms through administrative law such as the seizing of pension, veteran, disability checks, tax refunds, and federal benefits.”

When Illinois lawmakers passed and subsequently revised the pay-to-stay law, they cited fiscal efficiency, protecting the interests of taxpayers, and rehabilitation as justifications for the legislation. The bill’s original sponsor, state Rep. Jacob John Wolf, said that changing people for their incarceration could offset the growing correctional costs from an increasing prison population. With respect to rehabilitation, lawmakers argued that prisoners should reimburse the state for social services, such as educational and drug treatment programs, much like hospital patients have to pay for their medical care.

The authors presented data indicating the Attorney General’s office brought 160 pay-to-stay lawsuits to recoup incarceration costs between 1996 and 2015—mostly against people still in prison. A majority of those suits were filed during the administration of Governor Rod Blagojevich who, ironically, was later impeached, convicted, and sent to federal prison for eight years on public corruption charges. 

In November 2015, the Chicago Tribune published an article highly critical of the pay-to-stay law, highlighting the case of Melvin Moore. Moore was sued by the state to defray the cost of his incarceration and left destitute. As it was a civil action, he was not entitled to an attorney. Upon his release, after serving 20 years, Moore “was forced to get on food stamps and go into a homeless shelter after his parole, and subsequently his physical and mental health deteriorated.” According to his family, he died penniless shortly after getting out.

That news reporting galvanized efforts to repeal the pay-to-stay law, and legislation to do so (SB 2465) was introduced two months later. The bill had bipartisan support and lawmakers cited the need “to protect taxpayers, rehabilitate people after incarceration, and the imperative to make Illinois more fiscally efficient.” Relatively little had been collected from the pay-to-stay suits, which were costly to litigate, and stripping prisoners of their assets did not promote rehabilitation but, instead, made them more dependent on taxpayer-funded assistance programs after their release. Essentially, the same reasons used to enact the pay-to-stay law were repurposed to repeal it.

Although the bill passed in 2016, it was vetoed by then-Governor Bruce Rauner, who expressed concern that prisoners could profit from their crimes—e.g., by selling artwork or writing about their offenses—without the pay-to-stay law to seize their assets. The repeal legislation, however, had specifically exempted so-called “Son of Sam” statutes that prohibited such profiteering. The bill was reintroduced in early 2019 as HBO900 | SB 1158, and lawmakers again argued that repeal was necessary to protect taxpayer interests, ensure fiscal efficiency, and promote rehabilitation. State Rep. Kelly Cassidy remarked that the pay-to-stay law had been “a clear failure.” The re-introduced legislation passed with broad support.

Friedman, Kirk-Werner, and Fernandes observed that the same arguments used to pass the pay-to-stay law during the tough-on-crime era were essentially the same as those used to repeal it; they were simply repackaged in a different context. “Thus, lawmakers were able to situate repealing prison pay-to-stay within a larger socioeconomic and historical moment where penal logics such as rehabilitation, protecting taxpayers, and fiscal efficiency, which previously built up the carceral state, now could justify its repeal,” they wrote.

Similar strategies of repurposing and reframing talking points used to create carceral systems and policies, in order to reform or abolish them, could potentially be applied to other aspects of the legal and criminal justice systems.

“Logics and narratives never die,” the authors concluded. “They are often recycled, reimagined, resurrected depending on broader political and economic contexts…” While their didactic research is insightful and provides a detailed case study of Illinois’ pay-to-stay law, they largely ignore the fact that the impetus for the successful repeal effort was the Tribune’s reporting—not lawmakers’ concerns about taxpayer interest, fiscal efficiency or rehabilitating prisoners. Also, to a large extent, we are still in a tough-on-crime era that is highly resistant to reforms.  

Source: “Reforming the Shadow Carceral State,” by B. Friedman, G. Kirk-Werner, and A. Fernandes, Theoretical Criminology, Vol. 28, Issue 4 (Nov. 18, 2024)

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