Stop making prisoners pay for incarceration
For decades, Connecticut has been garnishing the assets of formerly incarcerated individuals — from inheritances, legal settlements, and other assets — to make them pay for the costs of their incarceration. This practice undermines important criminal justice goals and is out of step with national trends. Connecticut legislators are now considering whether to repeal the law that allows the practice. They should do so.
There are many reasons to end this law, like the constitutional concerns that arise from imposing a devastating financial penalty on those who have finished their sentences, and the message of social marginalization it sends. However, one of the reasons this practice must end is the growing realization — across the country — that these laws are simply bad policy. The overwhelming trend of the last decade has been the steady repeal of laws that put the economic burdens of funding governments and criminal systems on defendants.
Connecticut’s law allows the state to place a lien on assets of a formerly incarcerated person within two years of their release, and up to 20 years after release for certain assets, like legal settlements and inheritances. While the incarceration lien adds little to the state coffers, approximately .0003 percent of the state budget, the loss to individuals is enormous. The law perpetuates intergenerational poverty and, like with most incarceration fees, disparately impacts BIPOC populations and the economically vulnerable – populations the state should aim to lift up, not push down.
Pay-to-stay statutes have roots dating back to the civil war and were expanded in the 1990s, when accountability logic and economic dips led legislators to shift the costs of carceral systems onto defendants and their families as a way of balancing state budgets. By 2004, one survey found that approximately one-third of county jails and more than 50 percent of state correctional systems had instituted “pay-to-stay” fees. Individuals across the country are paying fees for their arrest, attorney, courthouse appearances, court transcripts, and more. Costs for formerly incarcerated people can run into six figures. In Connecticut, the state shifted incarceration costs through high-priced commissary charges for basic necessities like soap and toothpaste, exorbitant phone fees, and its sweeping pay-to-stay law. Meanwhile, incarcerated people working in Connecticut prisons are paid about $1.25 per day. Once out of prison, the incarceration lien creates a looming debt burden on those working to reenter society.
Over the last decade, states and local governments across the country have realized the harms of imposing the costs of running criminal systems on the people least likely to be able to pay. A national organization called the Fines and Fees Justice Center now works with communities, researchers, policymakers, judges, and others to help governments find ways to abolish criminal system fees. More state and local governments are joining this effort every day. A few weeks ago, the New Mexico House of Representatives passed a bill that would end court fees for people who cannot pay. In January, New York Gov. Kathy Hochul called for an end to parole supervision fees. According to the Fines and Fees Justice Center, 2021 saw a wave of reforms in red and blue states and localities, including the end of debt-based driving restrictions, the elimination of juvenile fees, and the abolition of a host of other criminal system costs, in places such as Arkansas, Arizona, Colorado, Illinois, Indiana, Louisiana, Michigan, Minnesota, Nevada, New Mexico, Oregon, Texas, Utah, Virginia, and Washington.
Connecticut and Maine remain the only states in New England and the Tri-State Region authorizing room and board charges for individuals after they have left prison. Fortunately, in recent decades, media have shined a spotlight on the inequities that persist when laws perpetuate economic and physical hardship for criminal defendants. Two years ago, Illinois abolished its pay-to-stay law. State Sen. Robert Peters, the sponsor of the repeal bill, summarized the case against pay-to-stay: “Pay-to-stay is morally wrong. These folks are already being punished for their crimes by being locked up. It’s unconscionable that we would place them into indentured servitude upon their release.” In 2021, Washtenaw County in Michigan forgave more than half a million dollars in debt owed by more than 31,000 people who have been incarcerated at their facilities within the past eight years.
The effort to curtail carceral fines and fees as punishment has been bipartisan. Conservative groups like Cato, Right on Crime, and the Texas Policy Foundation have linked up with criminal justice advocates to end charging practices in Texas, Florida, California, and many other places.
When COVID hit, many feared that the economic burden on states and local governments would halt progress, but in many places the opposite has happened. Since COVID, governments began suspending payment obligations, offering amnesties, and ending charges for items in prison — everything from phone calls to soaps. In 2019, a unanimous Supreme Court wrote in Timbs v. Indiana that excessive fines imposed by states are unconstitutional under the Eighth Amendment. Justice Ginsberg wrote for the Court that a fine “not be so large as to deprive (an offender) of his livelihood.” Conservative justices agreed. Justice Thomas, concurring, wrote that the “the right to be free from excessive fines” should be an “inalienable right” under the Privileges or Immunities Clause.
In the Land of Steady Habits, Connecticut is slow to catch up to national trends, but not inert. Last year, Connecticut made significant strides. The Legislature eliminated a welfare lien that threatened to take property from those receiving welfare benefits and ended phone fees for people in prison. Repealing incarceration liens and the remainder of pay-to-stay fees is a critical step that Connecticut must take to eliminate policies that deprives free individuals and their families of reentry and economic stability.
Mumina Egal is a student at the University of Connecticut School of Law and a Fellow for UConn Law’s Center on Community Safety, Policing, and Inequality. Luke Reynolds is a student at the University of Connecticut School of Law and a member of the UConn Law Criminal Defense Clinic. Anna VanCleave is an associate professor at the University of Connecticut School of Law and the director of the Criminal Defense Clinic and a member of the Affiliated Faculty for UConn Law’s Center on Community Safety, Policing, and Inequality