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Expert Brief

Paying for Your Time: How Charging Inmates Fees Behind Bars May Violate the Excessive Fines Clause

Lauren-Brooke Eisen looks at the historical and present day practice of prisons charging inmates fees for costs related to their incarceration, including related case law.

Published: July 31, 2014

This article origin­ally ran in the Loyola Univer­sity New Orleans College of Law Journal of Public Interest Law.


In 1846, the United States saw the birth of the first correc­tional fee law when Michigan enacted legis­la­tion author­iz­ing counties to charge sentenced jail inmates for the costs of medical care.3 A century and a half later in 1985, react­ing to the rising costs of oper­at­ing the Macomb County jail, the Sher­iff and the County Board of Commis­sion­ers began collect­ing up to $60 a day from inmates behind bars.4 Today, the Macomb County Jail bills pris­on­ers for: room and board, work release,5 phys­ic­als, dental visits, medic­a­tion, prescrip­tions, nurse sick calls, and hospital medical treat­ment.6

Currently, Macomb County’s story is replayed in hundreds of juris­dic­tions across the coun­try that charge fees to inmates for programs, func­tions, and services.7 Over the past forty years, the United States radic­ally increased its use of pris­ons to combat crime. Consequently, the coun­try’s state prison popu­la­tion grew by more than 700 percent since the 1970s.8 As a result, the United States boasts less than five percent of the world’s popu­la­tion but holds close to twenty-five percent of the world’s pris­on­ers.9 With the explos­ive correc­tional growth, state correc­tional costs have skyrock­eted in the last four decades.10

While it is under­stand­able that govern­ments would look to recoup these costs, advoc­ates and schol­ars have long argued that it repres­ents bad policy. However, less work has been done to chal­lenge the legal­ity of this prac­tice, perhaps because courts have histor­ic­ally been so unfriendly to these types of chal­lenges.11 This essay suggests that explor­ing the consti­tu­tional implic­a­tions of char­ging inmates for goods, services, and even their stay behind bars could help to build the case for policy change around the nation. Specific­ally, legal academ­ics could provide persuas­ive support for this area of advocacy by reex­amin­ing the legal­ity of the current systems of fees and fines under the Eighth Amend­ment’s Excess­ive Fines Clause.12 Even if courts continue to strike down these legal argu­ments, poli­cy­makers may finally take heed of such compel­ling evid­ence that this prac­tice may poten­tially viol­ate the U.S. Consti­tu­tion.

This essay proceeds in three parts. Part II provides a brief over­view of the histor­ical and present day uses of inmate fees along with a discus­sion of policies advoc­ates cite when arguing to erad­ic­ate these prac­tices. Part III then reviews the limited case law in this area and suggests new litig­a­tion strategies using the Excess­ive Fines Clause of the Eighth Amend­ment.


History of Inmate Fees

A. History of Inmate Fees and Pay-To-Stay Prac­tices

For years, counties and states have author­ized prison offi­cials to charge inmates for costs asso­ci­ated with incar­cer­a­tion dubbed “pay-to-stay” programs. These charges range from “per-diems” for their stays to charges for meals13, toilet paper14, cloth­ing, medical co-pays, and dental fees.15 Many juris­dic­tions have begun char­ging inmates fees in order to collect any money they can to offset stag­ger­ing correc­tional costs. In an effort to curry favor with voters, many poli­cy­makers and sher­iffs tout the advant­ages of char­ging inmates fees to decrease the taxpay­ers’ need to foot the bill for incar­cer­a­tion.16

Many courts now impose monet­ary sanc­tions on a “substan­tial major­ity of the millions of U.S. resid­ents convicted of felony and misde­meanor crimes each year.”17 In the last decade addi­tional fees have begun to prolif­er­ate in the U.S. crim­inal justice system such as fees for elec­tronic monit­or­ing, sex offender regis­tra­tion, and increases in fees already on the books.18 States are also increas­ing the number and dollar value of fees asso­ci­ated with the crim­inal justice system,19 and these increased fees are prolif­er­at­ing beyond the courts. Depart­ments of correc­tions and jails “are increas­ingly author­ized to charge inmates for the cost of their impris­on­ment.”20 Counties and states continue to struggle with ways to increase revenue to pay for exor­bit­ant incar­cer­a­tion bills. In 2010, the mean annual state correc­tions expendit­ure per inmate was $28,323, although a quarter of states spent $40,175 or more.21

By 1988, forty-eight states author­ized some form of correc­tional fees.22 Room and board fees grew rapidly in the second half of the 1980s, becom­ing even more common in the 1990s and into the 21st century.23 By 2004, approx­im­ately one-third of county jails and more than fifty percent of state correc­tional systems had insti­tuted “pay-to-stay” fees, char­ging inmates for their own incar­cer­a­tion.24

Today, this prac­tice remains preval­ent through­out the coun­try. In a 2005 National Insti­tute of Justice survey, thirty-eight percent of respond­ing jails imposed some type of “pay-to-stay” fee, for hous­ing, meals, or both.25 In fact, as of 2010, there were at least twenty-four states with stat­utes that author­ize some type of fee in jail.26 It is possible that the prac­tice occurs in even more states where counties have author­ized this prac­tice without state legis­la­tion. Unfor­tu­nately, no national data­base exists that would indic­ate how many juris­dic­tions across the coun­try util­ize this prac­tice.

B. Rationales for Imple­ment­ing Inmate Fees

In order to better under­stand some of the poten­tial consti­tu­tional argu­ments against “pay-to-stay” fees, it is import­ant to under­stand the four major rationales behind char­ging inmates fees once they are behind bars. The first rationale, already discussed in this article, is that the revenue stream helps to offset expens­ive incar­cer­a­tion budgets. The second rationale is punit­ive in nature and focuses on teach­ing inmates a lesson for their crim­inal acts. Some policy makers and correc­tional offi­cials make the argu­ment that char­ging inmates for their stay is groun­ded in rehab­il­it­a­tion or deterrence.27 Others argue that fees teach inmates valu­able lessons.28 One Iowa Sher­iff said about the prac­tice of char­ging inmates, “if they are viol­at­ing the law, then they should be the ones to pay for it.”29  Offi­cials in River­side County, Cali­for­nia who voted to approve a plan to charge inmates for their stay and reim­burse the county for food, cloth­ing and health care stated, “You do the crime, you will serve the time, and now you will also pay the dime.”30

A third rationale is polit­ical in that policy makers, judges, and sher­iffs can often gain the support of constitu­ents by support­ing inmate “pay-to-stay” fees. However, because it is often diffi­cult and costly to collect the revenue, many comment­at­ors have dismissed the idea of char­ging inmates for their stay behind bars as polit­ical grand­stand­ing.31 A jail admin­is­trator in Macomb County wrote that, “local jails are viewed as another county service that drains taxpayer dollars . . . . One might ask why law-abid­ing citizens should be burdened with the cost of incar­cer­a­tion when they never use that service, or why taxpay­ers should be further victim­ized by support­ing inmates who have the where­withal to pay.”32 In 2001, the Supreme Court of Wash­ing­ton explained in a case chal­len­ging auto­matic state reim­burse­ment deduc­tions from inmate accounts that inmates have “made it neces­sary for the State to keep and main­tain [them] at a large cost.”33

A fourth rationale focuses on redu­cing frivol­ous requests for services by inmates. Prison offi­cials often complain that they have less time and resources to spend on those with seri­ous medical illnesses and that these policies result in “[l]ess money . . . spent for over-the-counter wraps, aids, oint­ments and medic­a­tion given to inmates.”34 In many cases, facil­it­ies hope the fees “will reduce unne­ces­sary sick call visits as well as cover a small portion of the costs of care.”35

C. Types of Pay-to-Stay

There are three differ­ent models of “pay-to-stay” programs in jails and pris­ons. The first type, often described as “per-diems”, refers to counties and states that charge indi­vidu­als a fee per day. It is estim­ated that “a third of the nation’s 3,000-some county jails levy room-and-board fees.”36 The follow­ing are a hand­ful of examples of prac­tices that are common through­out our nation. River­side County, Cali­for­ni­a’s pay-to-stay program charges pris­on­ers $142.42 per day, which is more than many local hotels.37 As of 2009, Oregon’s city coun­cil author­ized its jail to charge inmates $60 a day.38 All inmates sentenced to the Penning­ton County Jail in Rapid City, South Dakota are charged $6.00 per day for room and board.39 Lancaster County Pennsylvania charges inmates $10 a day to stay at the county jail.40 Around two-thirds of Ohio Counties have imple­men­ted these fees. Frank­lin County, Ohio charges inmates $40 a day to stay in their jail.41 “Since its open­ing in 1998, the South­east Ohio Regional Jail in Nelson­ville has util­ized a ‘pay-to-stay’ policy in char­ging inmates $15 for book­ing fees and an addi­tional $1 per day spent there.”42

The second type of inmate fee involves char­ging inmates for indi­vidual items such as: toilet paper, medical co-pays, dental services, meals, cloth­ing, and other neces­sit­ies. In 2009, the county jail in Mari­copa County, Arizona began char­ging inmates $1.25 a day for meals.43 Gaston County, North Caro­lina, charges inmates $20 for medical and dental visits.44 Dallas County charges jail inmates $15 for most medical proced­ures.45 And, Collin County, Texas, charges $10 when inmates require a sick visit and $3 for each prescrip­tion.46 Many state laws allow the fees to be waived if inmates are indi­gent or have no funds in their inmate bank accounts.47

The third type of pay-to-stay model refers to four-star accom­mod­a­tions for those who can afford to pay to serve time in a more desir­able facil­ity.48 These types of pay-to-stay facil­it­ies garnered a good deal of media buzz after the New York Times published an article in 2007 noting:

[F]or offend­ers whose crimes are usually relat­ively minor (carjack­ers should not bother) and whose bank accounts remain lofty, a dozen or so city jails across the state offer pay-to-stay upgrades. Theirs are a clean, quiet, if not exactly recher­ché altern­at­ive to the stand­ard county jails, where the walls are bars, the fellow inmates are hardened and priv­ileges are few.49

These types of accom­mod­a­tions are most common in Cali­for­nia where many of the state’s pris­ons are over­crowded. So much so, that in May of 2011, the United States Supreme Court held in Brown v. Plata that the state’s pris­ons were “close to double the state pris­ons’ designed capa­city,” and that the health and safety of inmates was “uncon­sti­tu­tion­ally comprom­ised.”50 The Supreme Court noted that over­crowding in Cali­for­ni­a’s pris­ons creates a system wide viol­a­tion of the Eighth Amend­ment’s prohib­i­tion on cruel and unusual punish­ment and ordered the state to reduce its prison popu­la­tion to 110,000, or to 137.5 percent of capa­city.51

Because of the unique situ­ation of gross over­crowding in Cali­for­nia, facil­ity upgrades for those convicted of crimes are more common than in other states. For example, the Fremont Police Depart­ment in Cali­for­nia is now offer­ing an option to pay a one-time fee of $45 plus $155 a night to those inmates serving short sentences on lesser charges, so that they can stay in a smal­ler facil­ity and avoid the county jail.52 The Fuller­ton County Jail in Cali­for­nia offers a similar program for $100 a day and notes on its website that pay-to-stay inmates are “housed separ­ate from all other inmates and will have minimal contact with non-sentenced inmates.”53 In South­ern Cali­for­nia there are approx­im­ately fifteen of these types of pay-to-stay programs, where the daily charges range from $85.00 to $255.00 per day.54 Most agen­cies util­ize three aven­ues to recover fees from inmates: (1) billing the inmates as fees accrue; (2) deduct­ing money from inmate accounts (usually the commis­sary funds); and (3) billing inmates post-incar­cer­a­tion.55

This essay deals with char­ging per-diems for an inmates’ stays as well as char­ging for neces­sit­ies and other expenses while incar­cer­ated. This essay does not touch on “pay-to-stay upgrades” where inmates can choose to stay at a nicer facil­ity.

D. Policy Objec­tions

There are myriad reas­ons why char­ging inmates is a short­sighted public policy. Perhaps one of the most compel­ling reas­ons not to charge these fees is that citizens chose to remove these indi­vidu­als from soci­ety. There­fore, collect­ively, our soci­ety needs to bear the brunt of the fiscal costs that feed­ing, hous­ing, and provid­ing medical atten­tion to this group of people brings with it.56 Yes, incar­cer­a­tion is expens­ive – exor­bit­antly expens­ive, in fact – but that is the price Amer­ican citizens need to pay for its jails and pris­ons that are now explod­ing with inmates. Shift­ing even just a portion of the burden of the cost to inmates, eighty percent of whom are indi­gent,57 is not only bad fiscal policy, but also provides less incent­ive to poli­cy­makers to keep down costs asso­ci­ated with incar­cer­a­tion.

Advoc­ates contend that char­ging indi­vidu­als fines in jail imposes an unne­ces­sary burden on inmates, dispro­por­tion­ally affect­ing indi­gent popu­la­tions58 along with racial and ethnic minor­it­ies,59 all of whom are dispro­por­tion­ately repres­en­ted among the pris­oner popu­la­tion. Advoc­ates further point out that these policies gener­ate barri­ers to reentry60 and encour­age a cycle of poverty that is diffi­cult to escape.61 Adding fuel to the fire, family members often pick up the tab for these fees, depos­it­ing funds in inmate commis­sary accounts so they do not leave jail or prison with crim­inal justice debt. An article in the National Prison Project Journal noted, “[o]ften pris­on­ers will do without hygiene items or medical treat­ment rather than have their famil­ies deposit funds that will be imme­di­ately confis­cated to satisfy prison charges.”62

Addi­tion­ally, the effect of one indi­vidual inmate’s decision not to seek medical treat­ment because he or she cannot afford the copay­ment contains far-reach­ing consequences beyond that one inmate. For example, inmates and correc­tional staff who have contact with an inmate who forgoes a sick visit are all in danger of contract­ing a commu­nic­able disease. If a prison fee delays an inmate seek­ing treat­ment, consequences may rever­ber­ate through­out a correc­tional facil­ity.63

These fines are also counter-product­ive in ensur­ing public safety. Incar­cer­ated people who re-enter soci­ety are less likely to success­fully rein­teg­rate with hundreds of dollars in fines hanging over their heads.64 Further­more, it often costs more to admin­is­trate the fees than counties are gener­at­ing in revenue.65 Some agen­cies report actual reven­ues from their fee based oper­a­tions are as low as six percent of the fees assessed.66 Other programs, like one in Olms­ted County, Minnesota, have outright failed; the Minnesota program was revamped because admin­is­trat­ive costs outpaced revenue. A number of agen­cies have noted their lack of staff capa­city to effect­ively monitor and collect fees.67

Toward A New Litig­a­tion Strategy

Plaintiffs have litig­ated fees behind bars for decades on a vari­ety of grounds. Litig­ants have raised a litany of consti­tu­tional chal­lenges to health care fees,68 book­ing fees,69 room-and-board fees,70 and charges incurred while inmates were held pre-trial.71 Both state and federal courts have upheld the legal­ity of jails’ rights to deduct funds directly from pris­oner commis­sary accounts.72 Federal courts have simil­arly upheld the right of jails to deduct the cost of room-and-board directly from a pre-trial detain­ee’s pris­oner account to pay for hous­ing costs.73 In most cases, the courts have held that these fees do not viol­ate the U.S. Consti­tu­tion. However, one court held that a jail’s policy in taking cash from all pris­on­ers, includ­ing pre-trial detain­ees, for book­ing fees at the time of initial book­ing at the jail viol­ates the Four­teenth Amend­ment’s guar­an­tee of due process because no pre-depriva­tion hear­ing was offered.74

Those arguing charges incurred in jail are uncon­sti­tu­tional have raised Due Process and Equal Protec­tion argu­ments. Many have argued that the prac­tice viol­ates the Cruel and Unusual Punish­ment Clause of the Eighth Amend­ment. In almost all cases, the courts have sided with the agen­cies that imple­ment these prac­tices.

Many litig­a­tion strategies – from chal­lenges against cruel and unusual punish­ment to argu­ments about equal protec­tion – have proven unsuc­cess­ful. However, from this unfa­vor­able case law advoc­ates oppos­ing these fees have over­looked doctrinal open­ings to conduct chal­lenges under the U.S. Consti­tu­tion. This essay will specific­ally explore the poten­tial to chal­lenge inmate fees under the Excess­ive Fines Clause of the Eighth Amend­ment. Advoc­ates, in partic­u­lar, would bene­fit from util­iz­ing litig­a­tion as part of their reform strategy. Although success­ful in getting their objec­tions writ­ten about by the media, news articles have a limited abil­ity to change these prac­tices. The media covers these stor­ies relent­lessly, but advoc­ates see almost no impact as more and more juris­dic­tions imple­ment fee prac­tices each year. Litig­a­tion util­iz­ing the Excess­ive Fines Clause offers a unique oppor­tun­ity to argue that char­ging inmates fees while incar­cer­ated viol­ates the U.S. Consti­tu­tion.

A. Excess­ive Fines Clause of the Eighth Amend­ment

The Eighth Amend­ment provides “[e]xcess­ive bail shall not be required, nor excess­ive fines imposed, nor cruel and unusual punish­ments inflic­ted.”75 The Clause, while once virtu­ally ignored, has been “rescued from obscur­ity” in recent years.76 As recently as 1998, the Supreme Court wrote,” [t]his Court has had little occa­sion to inter­pret, and has never actu­ally applied, the Excess­ive Fines Clause.77 The adop­tion of the Eighth Amend­ment gener­ated little debate in the First Congress and the state rati­fy­ing conven­tions.78 In fact, the Clause was taken verbatim from the Virginia Declar­a­tion of Rights of 1776, which mirrored a provi­sion of the English Bill of Rights of 1689.79 Any debate regard­ing the Eighth Amend­ment has tended to focus on the Eighth Amend­ment’s Cruel and Unusual Punish­ments Clause, not the Excess­ive Fines Clause. However, some limit­a­tions on fine amounts are found in the Magna Carta.80 In fact, the Consti­tu­tion is silent on how to determ­ine whether a fine is “excess­ive” under the Excess­ive Fines Clause. An 1819 case from the Kentucky Court of Appeals states “no defin­ite criterion is furnished by the consti­tu­tion or bill of rights by which to ascer­tain what fine would or would not be excess­ive.”81

B. Forfeit­ure Cases Examined Under the Excess­ive Fines Clause

The Excess­ive Fines Clause of the Eighth Amend­ment is viol­ated only if the disputed fees are both “fines”, which consti­tute punish­ment for an offense, and are “excess­ive.”82 Accord­ing to Webster’s diction­ary, “excess­ive” means “surpass­ing the usual, the proper, or a normal meas­ure of propor­tion.” Little juris­pru­dence exists on the Excess­ive Fines Clause. However, to the extent that the Supreme Court has inter­preted the Excess­ive Fines Clause, it has done so primar­ily in civil and crim­inal forfeit­ure cases over the last two decades.

In 1993, in Alex­an­der v. United States, the Court recog­nized that a crim­inal forfeit­ure of an indi­vidu­al’s entire busi­ness might consti­tute an excess­ive fine, remand­ing the case back to the Court of Appeals.83 Five years later, the Supreme Court had the oppor­tun­ity to exam­ine another forfeit­ure claim under the Excess­ive Fines Clause in United States v. Bajakajian. In Bajakajian, Hosep Bajakajian attemp­ted to leave the United States with $357,144 in U.S. currency without claim­ing the funds through U.S. customs inspect­ors.84 The currency was seized and Bajakajian was taken into custody.85 The Supreme Court based its hold­ing on an histor­ical read­ing of the Excess­ive Fines Clause; it concluded the “touch­stone of the consti­tu­tional inquiry under the Excess­ive Fines Clause is the prin­ciple of propor­tion­al­ity: The amount of the forfeit­ure must bear some rela­tion­ship to the grav­ity of the offense that it is designed to punish.”86 Justice Thomas’s opin­ion stated that the penalty of a forfeit­ure of $357,144 was “grossly dispro­por­tional to the grav­ity of [the] offense.”87 Although Bajakaji­an’s hold­ing applies to an asset forfeit­ure proceed­ing, its prin­ciple can be borrowed and applied to cases in which an inmate is required to pay fees while behind bars.

C. Seminal Consti­tu­tional Casein Jail Fee Juris­pru­dence

The seminal case in jail fee juris­pru­dence is Till­man v. Lebanon County Correc­tional Facil­ity.88 Till­man is considered signi­fic­ant because the peti­tioner raised every consti­tu­tional argu­ment inmates have argued in past litig­a­tion – except for the Ex Post Facto Clause.89 In the case, Leonard Till­man, a former pris­oner in an Ohio County jail, brought suit after he was assessed a fee of $10 per day for hous­ing costs stem­ming from his incar­cer­a­tion in a county facil­ity for state parole viol­a­tions.90 Ulti­mately, he accu­mu­lated a debt exceed­ing $4,000.91 The unpaid fees were then turned over to a collec­tion agency after he was released from prison.92 Till­man was later recom­mit­ted to the jail, and pursu­ant to the facil­ity’s Cost Recov­ery Program, offi­cials confis­cated half of the funds in Till­man’s wallet as well as half of all funds he received during his stay at the facil­ity in order to satisfy the balance.93

Till­man sued the warden and the jail under 42 U.S.C. § 1983, alleging the $10 a day fee he was charged while in jail consti­tuted cruel and unusual punish­ment and was an excess­ive fine,94 and the jail’s confis­ca­tion of funds from his wallet and commis­sary account to satisfy his debt resul­ted in a depriva­tion of prop­erty without due process of law.95 Till­man failed to argue viol­a­tion of a partic­u­lar law, but the Magis­trate Judge engaged in an analysis of the Eighth and Four­teenth Amend­ment and issued a memor­andum opin­ion recom­mend­ing that the motion be denied.96 The Magis­trate Judge ques­tioned whether these facts presen­ted a case of cruel and unusual punish­ment because here, pris­on­ers do not have a choice but to be imprisoned, and the fees incurred are based on their incar­cer­a­tion and not on some­thing they could have control over.97 The defend­ants filed supple­mental affi­davits, includ­ing copies of relev­ant sections from the updated pris­oner hand­books.98 Defend­ants also stated that “the Cost Recov­ery Program was not inten­ded to punish, but rather to rehab­il­it­ate by teach­ing inmates finan­cial respons­ib­il­ity by shar­ing in the costs of their food, hous­ing, clothes, and protec­tion.”99 The District Court gran­ted summary judg­ment and dismissed the complaint.100

Regard­ing the cruel and unusual punish­ment argu­ment, the District Court found that Till­man was never denied basic human neces­sit­ies.101 Reject­ing the “excess­ive fines” argu­ment, the Court declined to treat the fees as a “fine,” and concluded that “even if they were fines, they were not excess­ive because the costs of incar­cer­a­tion by defin­i­tion cannot be dispro­por­tion­ate to the offense.”102 The district court also rejec­ted Till­man’s due process claim because the “notice given and postdepriva­tion remedy avail­able through the griev­ance proced­ure were consti­tu­tion­ally adequate.”103 Regard­ing Till­man’s equal protec­tion claim, the District Court held that it was not viol­ated because some inmates were taught finan­cial respons­ib­il­ity because they were afforded oppor­tun­it­ies to work and were addi­tion­ally required to make payments of at least $70.00 per week.104 The District Court dismissed the case and Till­man appealed.

The Third Circuit affirmed the lower court’s opin­ion and held that the amount of fees was not “excess­ive” under the Eighth Amend­ment.105 The Third Circuit noted that the $4,000 in fees charged Till­man were not punit­ive; they were determ­ined to be “rehab­il­it­at­ive” in nature.106 Agree­ing with the District Court’s reas­on­ing, the Third Circuit noted that the factual record in the case indic­ated that the program “was imposed for rehab­il­it­at­ive and not punit­ive purposes.”107 The Third Circuit held that even if the Cost Recov­ery Program of the facil­ity is considered a “fine,” and not a “fee,” it was not “excess­ive” because the fines were not out of propor­tion to the maximum fine of $100,000 for Till­man’s convicted offense – posses­sion with intent to deliver approx­im­ately 29 grams of cocaine.108

Regard­ing Till­man’s other Consti­tu­tional claims, the Third Circuit held that the assess­ment of daily fees did not consti­tute cruel and unusual punish­ment so long as the inab­il­ity to pay the fees did not affect the pris­on­er’s access to needed services.109 The Third Circuit addi­tion­ally held that the facil­ity’s taking of Till­man’s money for fees was not in viol­a­tion of the Due Process Clause because of the avail­ab­il­ity of a pris­oner griev­ance program.110 Further, the Court held that the facil­it­ies assign­ment of fees against Till­man did not viol­ate Equal Protec­tion because it did not implic­ate a protec­ted class and was reas­on­ably related to a legit­im­ate govern­ment interest.111 Inter­est­ingly, the Court held that it was legit­im­ate for the govern­ment to teach “fiscal respons­ib­il­ity” to inmates, and to have them pay a portion of the state’s expendit­ures incurred by their incar­cer­a­tion.112

While the major­ity of courts have followed Till­man when grap­pling with the consti­tu­tion­al­ity of fees assessed against pris­on­ers, Till­man opened the door for a consti­tu­tional argu­ment that inmate fees viol­ate the Excess­ive Fines Clause of the Eighth Amend­ment. The Till­man Court acknow­ledged the possib­il­ity that the “fees” could be considered “fines” under the Excess­ive Fines Clause of the Eighth Amend­ment.

D. Further Litig­a­tion Inquir­ies

New consti­tu­tional argu­ments can bolster advocacy by ques­tion­ing the legit­im­acy of jail fees for pris­on­ers. Partic­u­larly, academ­ics and creat­ive litig­ants should look care­fully at the cases that have discussed whether fees in jail are rehab­il­it­at­ive or punit­ive. Once clas­si­fied as “punit­ive,” they may be treated as “fines” and thereby receive protec­tion under the Excess­ive Fines Clause of the Eighth Amend­ment.

Of partic­u­lar note, the Third Circuit in Till­man held that even if the Cost Recov­ery Program is considered a “fine” it is not “excess­ive;” the court stated,” [r]ather than being used to punish, the undis­puted evid­ence shows that the fees are designed to teach finan­cial respons­ib­il­ity.”113 The Third Circuit in Till­man, citing to the Supreme Court’s hold­ing in Austin v. United States, recog­nized that if Till­man’s “assessed fees and confis­ca­tions. . .’can be explained as serving in part to punish”’ the Cost Recov­ery Program trig­gers the Excess­ive Fines Clause – “even if they may also be under­stood to serve remedial purposes.”114 However, the Third Circuit based its decision on the undis­puted record in the lower court confirm­ing the program was purely rehab­il­it­at­ive and in no way punit­ive in nature.115 Never­the­less, the Third Circuit in Till­man addressed the issue and stated that even if the program consti­tuted “fines,” the $4,000 debt was not deemed excess­ive because it still remained “a sum that is less than one-twen­ti­eth the legally permiss­ible fine.”116

Recent case law in Eighth Amend­ment juris­pru­dence analyz­ing forfeit­ure cases has noted that a punit­ive forfeit­ure viol­ates the Excess­ive Fines Clause “if it is grossly dispro­por­tional to the grav­ity of the offense that it is designed to punish.”117 Since Eighth Amend­ment juris­pru­dence analyz­ing fines under the Excess­ive Fines Clause has focused on the prin­ciple of propor­tion­al­ity, this is another doctrinal open­ing for addi­tional litig­a­tion. In the forfeit­ure line of cases, the Supreme Court has held that the amount of forfeit­ure must bear some rela­tion­ship to the grav­ity of the offense that it is designed to punish.118 However, the U.S. Supreme Court has noted that the history of the Excess­ive Fines Clause, although point­ing toward a propor­tion­al­ity view, does not suggest how dispro­por­tion­ate to the grav­ity of the offense a fine must be in order to be deemed consti­tu­tion­ally excess­ive.119 Using this line of reas­on­ing, creat­ive litig­ants could possibly bring specific chal­lenges in cases where an inmate’s fees are signi­fic­antly more than the legally permiss­ible stat­utory fine for the inmate’s crime.

Litig­ants should continue to argue that there are numer­ous cases where inmate fees are dispro­por­tional to their crime. For example, in New York State, the misde­meanor crime of driv­ing while impaired by the combined influ­ence of drugs or alco­hol carries with it a jail sanc­tion of up to one year and a fine of up to $1,000.120 Hypo­thet­ic­ally, if an indi­vidual sentenced under this stat­ute racked up jail fees in excess of $1,000 during their stay, there would be a compel­ling case to be made that the fees are excess­ive under the Eighth Amend­ment due to the fine’s dispro­por­tion to the maximum stat­utory fine.

Another strong chal­lenge to these prac­tices lies with litig­ants who can chal­lenge fees where offi­cials have described their intent as punit­ive. This open­ing is ripe for litig­a­tion after Till­man in juris­dic­tions where poli­cy­makers and jail and prison offi­cials have made it clear that their fees are partly or wholly punit­ive in nature. Creat­ive litig­ants should delve into the history and rationale for inmate fees in certain juris­dic­tions and bring chal­lenges to those policies where it is evid­ent that the motiv­a­tion behind the fees is punit­ive. Punit­ive fees place them­selves squarely within the Eighth Amend­ment’s Excess­ive Fines Clause. These fines are unne­ces­sar­ily excess­ive because an inmate is already deprived of his or her liberty pursu­ant to incar­cer­a­tion. It is overly punit­ive because the inmate has already been punished through depriva­tion of liberty and there­fore addi­tional fees are dispro­por­tion­ate and excess­ive. There are costs asso­ci­ated with remov­ing a group of citizens from the community and forcing them to live separ­ate and apart from soci­ety. There is a cred­ible argu­ment to be made that once soci­ety has determ­ined to remove a group of indi­vidu­als from the community, it is then “excess­ive” and “dispro­por­tion­ate” to charge them daily fees, book­ing fees, and even medical and other fees while their liberty is deprived and the justice system has already imposed a sentence for their crimes. Although this is at odds with much of the current case law on this issue, there is room to chal­lenge prevail­ing assump­tions (both factu­ally and legally) in order to urge courts to rule that these fees are uncon­sti­tu­tional under the Excess­ive Fines Clause of the Eighth Amend­ment. As part of their Eighth Amend­ment chal­lenge, litig­ants may also want to look at the “evolving stand­ards of decency” juris­pru­dence when chal­len­ging fees that pris­on­ers are required to pay behind bars. In the 1958 case of Trop v. Dulles, the Court struck down a law that allowed Trop, a native-born Amer­ican, to be stripped of his citizen­ship for the crime of wartime deser­tion.121 Emphas­iz­ing the flex­ib­il­ity in the word­ing of the Eighth Amend­ment, Justice Warren wrote that “the Amend­ment must draw its mean­ing from the evolving stand­ards of decency that mark the progress of a matur­ing soci­ety.”122 Although this stand­ard has tradi­tion­ally been applied in the context of the Cruel and Unusual Clause of the Eighth Amend­ment, Justice Warren’s words could equally refer to the entire Eighth Amend­ment, thus applic­able to the Excess­ive Fines Clause. Given the enorm­ous growth of the correc­tional popu­la­tion in the U.S. in addi­tion to the stat­ist­ics indic­at­ing that 80 percent of those incar­cer­ated are indi­gent,123 one could argue that the “evolving stand­ards of decency” should carry the day in order to protect a huge swath of poor inmates from becom­ing burdened with debt while incar­cer­ated.


The incar­cer­a­tion rate in the U.S. has expo­nen­tially increased since 1970.124 From 1980 to 2008, the number of people incar­cer­ated in Amer­ica quad­rupled from roughly 500,000 to 2.3 million people.125 This growth has created a stag­ger­ing price tag. It is under­stand­able that jails and pris­ons would look to offset costs for hous­ing these indi­vidu­als. However, it is unreas­on­able to require popu­la­tion whose debt to soci­ety is already being paid by the sentences imposed, 80 percent of whom are indi­gent, to chip in to foot the bill.

Advoc­ates need a stronger leg to stand on when arguing that these fines are bad policy. While many argu­ments are compel­ling, juris­dic­tions forced to tighten belts continue to imple­ment policies char­ging inmates fees while behind bars. With the help of addi­tional case law rais­ing ques­tions about the consti­tu­tion­al­ity of these prac­tices, even if not success­ful in court, their argu­ments can serve as thought-provok­ing cata­lysts for poli­cy­makers. Hope­fully legis­lat­ors can grapple with these issues when enact­ing stat­utes author­iz­ing fines for those behind bars. While the Excess­ive Fines Clause of the Eighth Amend­ment provides only one narrow open­ing for litig­a­tion, it serves as an example of research and litig­a­tion that is ripe for creat­ive litig­ants and academ­ics to take on.



1 Coun­sel, Bren­nan Center for Justice

2 Dylan Woolf Harris, County to Charge Inmates for Food, Doctor, Elko Daily Free Press (Febru­ary 6, 2014, 6:00 AM),–8ee8–11e3–82ee-001a4b­cf887a.html.

3 Dale Parent, Nat’l Inst. of Justice, Dep’t of Justice, Recov­er­ing Correc­tional Costs Through Offender Fees1 (1990), avail­able at https://­es1/Digit­iz­a­tion/125084NCJRS.pdf.

4 Office of Sher­iff Macomb Cnty. Mich., Inmate Reim­burse­ment “Pay-to-Stay” Program, avail­able at http:// www.macomb­sh­er­­bpay2stay­on­linepam.pdf.

5 Id. Due to budget cuts, work release was suspen­ded in 2010.

6 See Inmate Reim­burse­ment “Pay-to-Stay” Program, supra note 3 (the jail’s policy states that a pris­oner is never denied medical and dental services because of an inab­il­ity to pay. In the past 26 years, the county has collec­ted almost $18 million from pris­on­ers, and it is estim­ated that the current cost of oper­at­ing the jail costs about $38 million a year, approx­im­ately $94.32 a day per pris­oner).

7 Barbara Krauth, et al., Nat’l Inst. of Correc­tions, Dep’t of Justice, Fees Paid by Jail Inmates: Fee Categor­ies, Reven­ues, and Manage­ment Perspect­ives in a Sample of U.S. Jails 2 (2005), avail­able at https://­ (“Of the 224 survey responses, 202 juris­dic­tions charge fees to inmates for at least some programs, func­tions, or services.”).

8 Pew Ctr. on the States, Prison Count 2010: State Popu­la­tion Declines for the First Time in 38 Years 1 (2010), avail­able at http://­Files/wwwpewtrust­sorg/Reports/senten­cing_and_ correc­tions/Prison_Count_2010.pdf.

9 See Roy Walms­ley, Int’l Ctr. for Prison Stud­ies, World Prison Popu­la­tion List 1, 3 (9th ed. 2011), avail­able at–22.pdf (show­ing that, as of May 2011, the United States incar­cer­ates 2.29 million of the 10.1 million pris­on­ers around the world).

10 See Tracey Kyck­el­hahn, Bureau of Justice Stat­ist­ics, Dep’t of Justice, State Correc­tions Expendit­ures, FY 1982–20101 (rev. 2013), avail­able at (“Between 1982 and 2001, total state correc­tions expendit­ures increased each year, rising from $15.0 billion to $53.5 billion in real dollars. Between 2002 and 2010, expendit­ures fluc­tu­ated between $53.4 billion and $48.4 billion.”).

11 See infra Part III.

12 U.S. Const. amend. VIII (“Excess­ive bail shall not be required, nor excess­ive fines imposed, nor cruel and unusual punish­ment inflic­ted.”).

13 Laura Bauer, Some Inmates Pay for Their Crimes and Jail Stays, Kansas­ (Apr. 24, 2009), http:// www.jocosh­er­­doc­u­ment.aspx?docu­mentid=47 (Mari­copa County, Arizona charges inmates $1.25 a day for meals in the county jail).

14 Nate Rawl­ings, Welcome To Prison, Will You Be Paying Cash Or Credit?, Time (Aug. 21, 2013),

15 Diane Turby­fill, County Spent $1.9 Million on Jail Health Care, Will New Law Help?, Gaston Gazette (Nov 2, 2013, 6:57 PM), http:// www.gastongaz­­light/county-spent-1–9-million-on-jail-health-care-will-new-law-help-1.229341 (Gaston County, North Caro­lina charges inmates $20 for medical and dental visits.).

16 Assoc. Press, Nevada County’s Plan to Charge Inmates for Jail Meals Draws Lawsuit Threat, Fox News (Feb. 8, 2014), http:// (‘’Why should the people of Elko County pay for some­body else’s meals in jail?’ said Commis­sioner Grant Gerber, a backer of the plan who thinks the fees should be higher.”).

17 Alexes Harris et al., Draw­ing Blood from Stones: Legal Debt and Social Inequal­ity in the Contem­por­ary United States, 115 Am. J. Soc. 1753, 1756 (2010).

18 See Kim Shayo Buchanan, It Could Happen to “You”: Pay-to-Stay Jail Upgrades, 106 Mich. L. Rev. First Impres­sions 60 (2007), avail­able at http://www.michigan­lawre­

19 See Alicia Bannon et al., Bren­nan Ctr. Justice, Crim­inal Justice Debt: A Barrier to Reentry 7 (2010), avail­able at http:// www.bren­nan­cen­ 20FI­NAL.pdf.

20 Harris et al, supra note 17, at 1759.

21 Kyck­el­hahn, supra note 10, at 4.

22 Parent, supra note 2, at 1 (“Specific­ally, stat­utes author­ized fees charged to proba­tion­ers in 28 states, to jail inmates in 26 states, to parolees in 15 states, and to prison inmates in 39 states.”).

23 See, e.g., Philip P. Pan, Pr. George’s Considers Fee for Jail Food; Correc­tions Chief’s Plan Troubles Local ACLU, Wash. Post, June 1, 1998, at B01; Desiree Evans, Doing Time on Their Own Dime: More States Charge Inmates for Stays in Jail, Prison, Inst. for S. Stud. (May 19, 2009), http:// www.south­ern­stud­

24 Evans, supra note 23.

25 Krauth et al., supra note 7.

26 Alison Bo Andol­ena, Can They Lock You Up and Charge You for It?: How Pay-to-Stay Correc­tions Programs May Provide A Finan­cial Solu­tion for New York and New Jersey, 35 Seton Hall Legis. J. 94, 100 (2010).

27 Nancy Petersen, Proposal Would Have Chesco Inmates Pay Room And Board They’d Be Charged $2 A Day. The Aim: To Teach Respons­ib­il­ity. It’s Gain­ing Among The Prison Board, (Sept. 13, 1995), http://–09–13/news/25718535_1_prison-board-inmates-domestic-rela­tions-charges (‘I think we have a two-fold respons­ib­il­ity to the taxpay­ers …One is to collect as much as we can in terms of user fees from the inmates at the prison. The other is to attempt to rehab­il­it­ate the pris­on­ers so that they are not a future burden yet again on the taxpay­ers. You do that by teach­ing them finan­cial respons­ib­il­ity.”) (quot­ing Chester County Control­ler Joseph Carpenter); Inmates’ Jail Fee Yields Little Green for Min., St. Paul Pion­eer Press (Sept. 19, 2003), avail­able at http:// www.correc­ (“During the past year, at least one-quarter of Minnesota counties star­ted char­ging for room and board. Dubbed ‘pay to stay,’ the purpose was two-fold: bring in money to help offset ever-rising jail costs and send a message to crim­in­als that ‘if you do the crime, you pay to do the time.”’).

28 N.Y. State Dep’t of Corr. Servs., Inmates Pay $4M Annu­ally in Fines, Fees to Taxpay­ers, Crime Victims, DOCS Today, Apr. 2004, at 4 (Former New York Correc­tions Commis­sioner Glenn Goord explains that fees “teach inmates … to deter miscon­duct that often-times endangers staff or other inmates, or to teach inmates that there is a cost asso­ci­ated with the priv­ileges that they seek.”).

29 Todd Bens­man, States Making Inmates Pay for Services in Jail, Dallas Morn­ing News, May 15, 1998, at 35A (quot­ing an Iowa Sher­iff who favors pay-to-stay).

30 Jennifer Medina, In Cali­for­nia, a Plan to Charge Inmates for Their Stay, N.Y. Times (Dec. 11, 2011),­side-cali­for­nia-a-plan-to-charge-inmates.html?_r=0.

31 Julia Silver­man, Oregon Pris­on­ers Must Pay for Jail Stay, Assoc. Press, May 21, 2004.

32 Michelle M. Sanborn, The Pay-to-Stay Debate: Inmates Must Take Finan­cial Respons­ib­il­ity, Correc­tions Today, Aug. 2003, avail­able at http://­a­tions/ctarchivespdf/aug03/pnt-counter.pdf.

33 Dean v. Lehman, 18 P.3d 523, 533 (Wash. 2001).

34 Sanborn, supra note 32.

35 Krauth et al., supra note 7, at 15.

36 Sara B. Miller, Is it Fair and Legal for Inmates to Foot their Room and Board? Chris­tian Sci .Monitor (July 21, 2004), http:// www.csmon­

37 Pay to Stay Jail Programs Grow­ing, https:// www.pris­on­leg­al­­yArticle.aspx (last visited Mar. 17, 2014).

38 Bauer, supra note 13.

39 Room & Board, Penning­ton Cnty. Jail, http:// www.penning­ton­county­sh­er­ (last visited Mar. 17, 2014).

40 P.J. Reilly, Lancaster County Prison Board Seek­ing Ways to Recoup Costs, Lancaster Online (Sept. 12, 2013, 7:06 PM), http:// lancas­ter­on­­ing-ways-to-recoup-costs.html.

41 Mary Beth Lane & Josh Jarman, Poor Inmates Leave Jails Short on Pay-To-Stay Fees, Colum­bus Dispatch (June 27, 2013, 4:52 AM), http://­ies/local/2013/06/27/poor-inmates-leave-jails-short-on-pay-to-stay-fees.html (“Frank­lin County charges inmates $40, which comes out of the inmate’s commis­sary fund. Inmates who cannot afford the fee are not charged, Sher­iff Zach Scott said. ‘If their family later drops $200 in their commis­sary account, though, we’ll take the $40 out of it first.”’).

42 Tyler Buchanan, Report Fuels Debate Over Char­ging Inmates Jail Fees, Athens Ohio (Jan. 15, 2014, 1:17 PM), http:// www.athenso­hi­­ging-inmates-jail-fees/article_04c5258d-9dd4–5b4d-ae11–3ce836f9c380.html.

43 Bauer, supra note 13.

44 Turby­fill, supra note 14 (“The local jail spent $1.9 million for a medical services contract in 2012. Inmates paid a little more than $7,000 toward that expense.”).

45 Kevin Krause, Dallas County Jail Begins Char­ging Inmates Fee for Medical Services, Dallas News (June 5, 2012, 2:20 PM), http:// crimeb­log.dallas­­ging-inmates-fee-for-medical-services.html/.

46 Id.

47 See Phil Schaen­man et al., Urban Inst., Oppor­tun­it­ies For Cost Savings In Correc­tions Without Sacri­fi­cing Service Qual­ity: Inmate Health Care 14 (2013) (“A survey of state correc­tions health systems in 2009 found that the vast major­ity of states assess some type of medical co-payment, which often is not applied if the indi­vidual is indi­gent, has a chronic disease, needs emer­gency care, suffered a work-related injury, or is staff-ordered.”).

48 See Leah A. Plun­kett, Captive Markets, 65 Hast­ings L.J. 57, 61 (2013).

49 Jennifer Stein­hauer, For $82 a Day, Book­ing a Cell in a 5-Star Jail, N.Y. Times (Apr. 29, 2007), page­wanted=print&_r=0.

50 Edit­or­ial Board, Cali­for­ni­a’s Continu­ing Prison Crisis, N.Y. Times (Aug. 10, 2013)­ion/sunday/cali­for­nias-continu­ing-prison-crisis.html?_r=0.

51 Brown v. Plata, 131 S. Ct. 1910 (2011).

52 Cali­for­nia Pris­on’s ‘Pay-To-Stay’ Option Offers ‘Quieter’ Rooms For $155 A Day, Huff­ing­ton Post (July 28, 2013, 4:05 PM), http:// www.huff­ing­ton­­for­nia-prison-pay-to-stay_n_3667573.html.

53 Pay-to-Stay, City of Fuller­ton Police, http://­;to_stay.asp (last visited Feb. 21, 2014) (The website states that this is a fee-based program avail­able to qual­i­fied men who have been convicted and sentenced to serve time in a city jail. They are only able to accept inmates who have been convicted of a non-viol­ent misde­meanor crime).

54 Staff Report 1345, Altern­at­ive Confine­ment Program – Consid­er­a­tion of a Fremont Deten­tion Facil­ity Altern­at­ive Confine­ment (‘Pay-to-Stay‘) Program and Adop­tion of a Resol­u­tion Setting Corres­pond­ing Rates, City of Free­mont Cali­for­nia, http://fremont­­File.aspx? ID=1345 (last visited Feb. 21, 2014); see also Stein­hauer, supra note 48 (“For roughly $75 to $127 a day, these convicts—who are known in the self-pay parlance as ‘cli­ent­s’—­get a small cell behind a regu­lar door, distance of some amplitude from viol­ent offend­ers and, in some cases, the right to bring an iPod or computer on which to compose a novel, or perhaps a song.”).

55 Special Comm’n to Study Feas­ib­il­ity of Estab­lish­ing Inmate Fees, Inmate Fees As a Source of Revenue: Review of Chal­lenges 100 (2001) (Appendix J contain­ing info regard­ing the collec­tion process and consid­er­a­tions).

56 See Sharon Dolovich, Cruelty, Prison Condi­tions, and the Eighth Amend­ment, 84 N.Y.U. L. Rev. 881, 892 (2009) (“The state’s carceral burden is the price soci­ety pays for the decision to incar­cer­ate convicted offend­er­s…If soci­ety prefers, it can choose not to incar­cer­ate. But if it wants the bene­fits of incar­cer­a­tion, soci­ety must bear the burden, even if this choice should oblige the state to provide for the needs of people in prison in ways it routinely fails to do for needy people in the free world.”).

57 Accord­ing to the Amer­ican Bar Asso­ci­ation (ABA), research­ers estim­ate that anywhere from sixty to ninety percent of crim­inal defend­ants need publicly-funded attor­neys, depend­ing on the juris­dic­tion. Marea Beeman, Am. Bar Ass’n, Using Data To Sustain And Improve Public Defense Programs 2 (2012), avail­able at http://www.amer­ic­an­­is­trat­ive/legal_ aid_indi­gent_defend­ants/ls_sclaid_def_sustain­ing_and_improv­ing_public_ defense.authcheck­dam.pdf; Bureau Justice Assist­ance, Dep’t Justice, Contract­ing For Indi­gent Defense Services 3, n.1 (2000), avail­able at https://­es1/bja/181160.pdf (stat­ing that sixty to ninety percent of all cases involve indi­gent defend­ants and thus use court-appoin­ted coun­sel); see also Eve Brensike Primus, Proced­ural Obstacles to Review­ing Inef­fect­ive Assist­ance of Trial Coun­sel Claims in State and Federal Post­con­vic­tion Proceed­ings, Crim­inal Justice, Fall 2009, avail­able at http:// www.amer­ic­an­­ing/crim­inal_justice_section_ news­let­ter/crimjust_cjmag_24_3_primus.authcheck­dam.pdf (‘With public defend­ers repres­ent­ing 80 percent of crim­inal defend­ants nation­wide, the indi­gent defense crisis is a prob­lem that our crim­inal justice system can no longer afford to ignore.‘); Caroline Wolf Harlow, Bureau Justice Stat­ist­ics, Dep’t Justice, Defense Coun­sel In Crim­inal Cases 1 (2000), avail­able at http:// (find­ing over 80% of people charged with a felony in state courts are repres­en­ted by public defend­ers).

58 Supra note 57.

59 Am. Civil Liber­ties Union, In for a Penny: The Rise of Amer­ica’s New Debt­or’s Pris­ons 9 (2010), avail­able at http://­Penny_web.pdf#page=6.

60 “The addic­tion to incar­cer­a­tion has had very real consequences—cre­at­ing a grow­ing class of indi­vidu­als with crim­inal convic­tions unable to obtain employ­ment or hous­ing, and trapped in perpetual poverty. As these indi­vidu­als struggle under the weight of reen­ter­ing soci­ety, many see no hope and instead return to crime.” Am. Civil Liber­ties Union Ohio, Adding It Up: The Finan­cial Real­ity of Ohio’s Pay-to-Stay Jail Policies 2 (2013), avail­able at http://www.acluo­­gItUp2013_06.pdf; see also “[F]ormerly incar­cer­ated people face tremend­ous chal­lenges find­ing and main­tain­ing legit­im­ate job oppor­tun­it­ies because of low levels of educa­tion, limited work exper­i­ence and voca­tional skills, poor atti­tudes, and a general reluct­ance of employ­ers to hire people with convic­tions.” Amy L. Solomon et al., Justice Policy Center, Urban Insti­tute, Life After Lockup: Improv­ing Reentry from Jail to the Community 15 (2008), avail­able at https://­es1/bja/220095.pdf.

61 “’We’re talk­ing about saddling a popu­la­tion that has noth­ing with debt, and then telling them they’re supposed to success­fully re-enter soci­ety and be product­ive,’ said Rebecca Vallas, an attor­ney with Community Legal Services, which provides legal assist­ance to poor Phil­adelphia resid­ents.” Lisa Riordan Seville & Hannah Rappleye, Sentenced to Debt: Some Tossed in Prison Over Unpaid Fines, NBC News, (May 27, 2013, 12:43 AM), http:// inplain­

62 See Pat Nolan, Inmate User Fees: Fiscal Fix or Mirage?, Am. Corr. Assoc. (Aug. 2003), avail­able at http://­a­tions/ctarchivespdf/aug03/pnt-counter.pdf (citing to the National Prison Project Journal).

63 Nolan, supra note 62. (Inmates have no control over who they live with and are exposed to many commu­nic­able diseases. With the rapid spread of hepat­itis C among inmates, it makes no sense to discour­age inmates from seek­ing treat­ment when that merely results in further spread­ing the disease.).

64 See Bannon et al., supra note 19.

65 Nat’l Inst. Corr., Dep’t Justice, Fees Paid by Jail Inmates: Find­ings From The Nation’s Largest Jails (1997), avail­able at http://

66 Id. at 17–18 (“Accord­ing to some agen­cies, the burden of track­ing accounts and collect­ing fees is not matched by the reven­ues gener­ated. One agency is consid­er­ing rescind­ing its policy of char­ging for services because ‘the process is cumber­some and unwork­able’ and ‘does not enhance the goals and object­ives of the depart­ment.”’).

67 Krauth et al., supra note 7, at 40.

68 See New Jersey v. Thomas, Nos. 09–2610(RMB), 09–4478(RMB), 2010 WL 715394, 8 (D.N.J. Feb. 24, 2010) (The court held that inmate’s asser­tion that an impos­i­tion of a $50 user fee from his prison account for payment of medical fees is not a viol­a­tion of due process and his rights against unreas­on­able seizures).

69 See Berry v. Lucas County Board of Commis­sion­ers, No. 3:08cv3005, 2010 WL 480981, 6 (N.D. Ohio Feb. 4, 2010) (The court held that the book­ing fee of $100 is not a punit­ive confis­ca­tion of prop­erty by the sover­eign and serves a legit­im­ate non-punit­ive purpose, which is to recoup the costs of incar­cer­a­tion, and not as a means of punish­ment.).

70 See Reyn­olds v. Wagner, 128 F.3d 166, 183 (3d Cir. 1997) (affirm­ing grant of summary judg­ment in favor of state correc­tion offi­cials on a complaint alleging an equal protec­tion viol­a­tion stem­ming from a now-discon­tin­ued exper­i­mental program to charge room and board based on an inmate’s level of income or in a state prison); see also Chris­ti­ansen v. Clarke 147 F.3d 655 (8th Cir. 1998); Federal law acknow­ledges that a pris­on­er’s wages might be subject to deduc­tions for room and board. 18 U.S.C. § 1761 (c)(2)(B); see also Browder v. Ankrom, No. 4:05cv-p9-m, 2005 WL 1026045, 6 (W.D. Ky. Apr. 25, 2005) (hold­ing that a hous­ing or per diem fee pursu­ant to a state stat­ute or policy are not true depriva­tions of prop­erty because such funds are deduc­ted in exchange for services rendered or goods provided); see also Sickles v. Kentucky, 439 F. Supp.2d 751, 757 (E.D. Ky. 2006) (hold­ing that deduc­tion of fees from county jail pris­on­ers’ prison canteen accounts pursu­ant to Kentucky stat­ute author­iz­ing county jail­ers to adopt pris­oner fee and expense reim­burse­ment policies for expenses incurred by reason of pris­on­er’s confine­ment did not viol­ate proced­ural due process because they are not afforded a pre-depriva­tion hear­ing before the fees are assessed and deduc­ted).

71 See Barnes v. Brown County, No. 11-cv-00968, 2013 WL 1314015, 4 (E.D. Wis. Mar. 30, 2013) (The court held that a pretrial detain­ee’s Four­teenth Amend­ment due process rights were not viol­ated when a Brown County jail charged him $20 a day even when he was held pretrial).

72 Sickles v. Camp­bell Cnty., 439 F. Supp. 2d 751, 752 (E.D. Ky. 2006) (uphold­ing the right of two jails in Kentucky to deduct money directly from commis­sary accounts of jail pris­on­ers); Dean v. Lehman, 18 P.3d 523 (Wash. 2001) (uphold­ing the legal­ity of auto­matic deduc­tion of funds from inmates accounts).

73 Slade v. Hamp­ton Rds. Reg’l Jail, 407 F.3d 243, 246–47 (4th Cir. 2005) (find­ing this policy is not a viol­a­tion of due process because the charge does not amount to a punish­ment).

74 See Allen v. Leis, 213 F. Supp. 2d 819 (S.D. Ohio 2002)

75 U.S. Const. amend. VIII.

76 Dep’t of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 803 (1994).

77 United States v. Bajakajian, 524 U.S. 321, 327 (1998).

78 Id. at 335.

79 See Brown­ing-Ferris Indus­tries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 266–67; Nich­olas M. McClean, Live­li­hood, Abil­ity to Pay, and the Original Mean­ing of the Excess­ive Fines Clause, Hast­ings Const. L.Q. 833–902 (2013) (noting that essen­tially no Supreme Court case law exists address­ing the Excess­ive Fines Clause prior to the modern era).

80 Magna Carta, Ch. 20, 21, reprin­ted in 1 The Stat­utes At Large: From Magna Carta to the End of the Elev­enth Parlia­ment of Great Britain 8–9 (Danby Pick­er­ing ed., 1762) (stat­ing that fines should be graded accord­ing to offense seri­ous­ness and also should not deprive the offender of his live­li­hood).

81 Common­wealth v. Morrison, 9 Ky. 75, 79 (1819); McClean, supra note 79 at 871.

82 United States v. Bajakajian, 524 U.S. 321, 327–34 (1998).

83 See Alex­an­der v. United States, 509 U.S. 544, 548–59 (1993).

84 Bajakajian, 524 U.S. at 324–25.

85 Id.

86 United States v. Bajakajian, 524 U.S. 321, 334 (1998).

87 Id. at 339–40.

88 Till­man v. Lebanon Cnty. Corr. Facil­ity, 221 F.3d 410 (3d Cir. 2000).

89 See Joshua Michtom, Making Pris­on­ers Pay for Their Stay: How a Popu­lar Correc­tional Program Viol­ates the Ex Post Facto Clause, 13 B.U. Pub. Int. L.J. 187, 187–202 (2004) (examin­ing the Till­man case and provid­ing a compre­hens­ive discus­sion about the consti­tu­tional implic­a­tions of whether pay-to-stay, when imposed inde­pend­ently of crim­inal senten­cing, is an ex post facto viol­a­tion).

90 Till­man, 221 F.3d at 413.

91 Id.

92 Till­man v. Lebanon Cnty. Corr. Facil­ity, 221 F.3d 410 413 (3d Cir. 2000).

93 Id. at 414. (Pursu­ant to the Cost Recov­ery Program, which was adop­ted by the Lebanon County Prison Board on June 19, 1996, any funds gener­ated through this program go toward the county’s general fund, which pays the facil­ity’s oper­at­ing costs.)

94 Till­man v. Lebanon Cnty. Corr. Facil­ity, 221 F.3d 410, 413 (3d Cir. 2000).

95 Id. at 415 (Till­man also argued the jail viol­ated the Equal Protec­tion Clause because some pris­on­ers in the jail were not charged the daily fee).

96 Id.

97 Id. (The Magis­trate Judge held that “although pris­on­ers could avoid medical fees by declin­ing to seek treat­ment, they could not avoid resid­ing in an insti­tu­tion. That fact and the amount of debt created a triable ques­tion of fact regard­ing cruel and unusual punish­ment. Second, it could not be shown as a matter of law that the fees were not excess­ive fines in viol­a­tion of the Eighth Amend­ment. Third, the defend­ants failed to demon­strate what due process, if any, was provided to the plaintiff. Finally, the Court held that it lacked suffi­cient inform­a­tion to conclude that there was no mater­ial ques­tion of fact regard­ing any equal protec­tion claim.”).

98 Id.

99 Id.

100 Till­man v. Lebanon Cnty. Corr. Facil­ity, 221 F.3d 410, 415 (3d Cir. 2000).

101 Id. at 416.

102 Id.

103 Till­man v. Lebanon Cnty. Corr. Facil­ity, 221 F.3d 410, 416 (3d Cir. 2000).

104 Id.

105 Id. at 420.

106 Id. (noting that the fees were “designed to teach finan­cial respons­ib­il­ity,” and that there was not an increase in the fee in connec­tion to the “grav­ity of the offense,” and the pris­oner was not held for a longer period of time for a fail­ure to pay the fee).

107 Id.

108 Till­man v. Lebanon Cnty. Corr. Facil­ity, 221 F.3d 410, 420 (3d Cir. 2000).

109 Id. at 418 (the Third Circuit also commen­ted that if Till­man “truly cannot meet his finan­cial oblig­a­tions, then his concerns would be more appro­pri­ately addressed in a federal bank­ruptcy court. That he is unhappy to be saddled with debt is under­stand­able, but in the present circum­stances, does not implic­ate the Cruel and Unusual Punish­ments Clause.” Id. at 420.

110 Id. at 422.

111 Till­man v. Lebanon Cnty. Corr. Facil­ity, 221 F.3d 410, 423 (3d Cir. 2000).

112 Id. at 423.

113 Id. at 420.

114 Id. (citing Austin v. United States, 509 U.S. 602, 620–21 (1993)).

115 Id.

116 Till­man v. Lebanon Cnty. Corr. Facil­ity, 221 F.3d 410, 420–21 (3d Cir. 2000).

117 United States v. Bajakajian, 524 U.S. 321, 322 (1998); see also Austin 509 U.S. at 622–623. (In Austin, a state court found Austin guilty of intent to distrib­ute cocaine and defend­ant’s prop­erty was seized under state forfeit­ure law since it was used to commit the crime. Austin argued that forfeit­ure of his prop­erty viol­ated the Eighth Amend­ment’s Excess­ive Fines Clause. The Supreme Court held that the crucial ques­tion is whether the forfeit­ure is monet­ary punish­ment, with which the Excess­ive Fines Clause is partic­u­larly concerned. Because sanc­tions frequently serve more than one purpose, the fact that a forfeit­ure serves remedial goals will not exclude it from the Clause’s purview, so long as it can only be explained as serving in part to punish. The Supreme Court determ­ined that both civil and crim­inal real estate forfeit­ures under federal stat­utes consti­tute punit­ive fines and there­fore that they must be limited by the Excess­ive Fines Clause. The Court declined to estab­lish a test for determ­in­ing whether a forfeit­ure is consti­tu­tion­ally ‘excess­ive,‘ leav­ing that to the lower courts.).

118 See Bajakajian, 524 U.S. 321; Austin 509 U.S. 602.

119 Bajakajian, 524 U.S. at 336.

120 N.Y. Veh. & Traf. Law § 1192 (McKin­ney 2009).

121 Trop v. Dulles, 356 U.S. 86 (1958)

122 Trop v. Dulles, 356 U.S. 86, 101.

123 Paul Butler, Gideon’s Muted Trum­pet, N.Y. Times (Mar. 17, 2013),­ion/gideons-muted-trum­pet.html?_r=0 (noting that over 80 percent of defend­ants are indi­gent. Extra­pol­at­ing from this, it is fair to say that 80 percent of those incar­cer­ated are indi­gent).

124 See Pub. Safety Perform­ance Project, Pew Char­it­able Trusts, Public Safety, Public Spend­ing: Fore­cast­ing Amer­ica’s Prison Popu­la­tion 2007–2011 (2007), avail­able at http://­Files/wwwpewtrust­sorg/Reports/State-based_ policy/PSPP_prison_projec­tions&uscore;0207.pdf (“After a 700-percent increase in the U.S. prison popu­la­tion between 1970 and 2005, you’d think the nation would finally have run out of lawbreak­ers of put behind bars.” Id. at i).

125 See Id.; Bureau Justice Stat­ist­ics, U.S. Dep’t Justice, Growth in the Total Correc­tional Popu­la­tion During 2008 Was The Slow­est in Eight Years (2008), avail­able at http://­pus08pr.pdf (“At year­end 2008, 7.3 million men and women were under correc­tional super­vi­sion, includ­ing 70 percent (about 5.1 million) who were super­vised in the community on proba­tion or parole and 30 percent (about 2.3 million) who were held in the custody of pris­ons or jails, the U.S. Depart­ment of Justice’s Bureau of Justice Stat­ist­ics (BJS) announced today.” Id. at 1).