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    Tuesday, June 06, 2023

    Forcing people to pay for being locked up remains common

    In February 2018, 19-year-old Tianna Laboy was incarcerated in York Correctional Institution in Niantic, awaiting trial in the mental health unit when her complaints of stomach pain and cries for help were ignored. Denied proper medical care for a week, Laboy gave birth to her premature daughter — in her prison cell toilet.

    Upon release in March 2019 Laboy filed a civil rights lawsuit against the prison, its medical providers and the Connecticut Department of Corrections. However, she had no choice but to settle with the state without going to trial. Why? Because any money she might win from the state could be seized right back by the Department of Corrections as part of Connecticut's pay-to-stay statutes.

    This is a routine procedure made possible by laws that allow the Connecticut attorney general to seize any settlement to pay for the cost of incarceration at a rate of $249 a day, the highest pay-to-stay rate in the country. For Laboy's case, the state claimed to have paid over $500,000 for the cost of incarceration and medical care. Such astronomical figures are the rule, not the exception, in pay-to-stay lawsuits.

    Charging adults and children for their own incarceration is common in all 50 states in the form of per diem fees for room and board and/or fees for medical and commissary costs. The proliferation of pay-to-stay laws throughout the country, including in Connecticut, highlights the demand for revenue after the post-War on Drugs era of mass incarceration and a dedication to "tough on crime" policies across the political spectrum.

    The United States incarcerates more people per capita than anywhere else in the world and it spends at least $182 billion per year to do so. For decades, as jurisdictions struggled to keep up with these rising costs, pay-to-stay emerged as an innovative yet predatory strategy to recoup the steep financial cost of mass incarceration from the very communities who predominantly fill our nation's cages.

    Pay-to-stay operates either through direct payments from incarcerated individuals for services, such as medical co-pays in jails and prisons or through the state suing incarcerated people for these costs in civil court. These lawsuits target the full cost of incarceration, often ranging from $10,000 to over $400,000, depending on the location and time spent incarcerated. The state targets incarcerated people with any level of assets they can seize: an inheritance from a deceased family member or spouse, pension funds from previous employment, veterans and disability benefits, even tax refunds or personal injury settlements. Punishment then is no longer measured just in physical extraction from the community, but now people serve a life sentence measured in financial debt to the state that, more often than not, they and their families will never be able to pay back.

    Since the 1980s, places like Connecticut have increased their use of monetary penalties such as pay-to-stay as they rapidly expanded prison systems that disproportionately target the poor and minority communities. Beginning in the late 1960s, a bipartisan tough-on-crime political wave began. Republican, Democratic and independent governors, joined by their legislatures, supported sentencing policy that not only increased the number of people going to prison but the associated costs of incarceration, including medical co-pays, utility fees and room-and-board charges.

    In Connecticut, from 1985 to 1995, as control of the legislature and the governorship shifted from Democrats to Republicans, the number of prisons in the state tripled, increasing the ever-growing need for additional revenue streams and cost-saving measures to mitigate the costs of such growth. News headlines in this period warned of a costly overcrowding crisis and announced massive budget cuts to account for the shortfalls, often touting the prison system as particularly effective at cutting their expenses by shifting costs to incarcerated people, including their own medical care, and eliminating free programs such as education and reentry classes.

    In 1995, Connecticut adopted a pay-to-stay law that allowed the state to charge incarcerated people for the daily costs of their confinement and sue them in civil court for the bill. This bill, lauded by Republican Gov. John Rowland, who a decade later would resign amid a corruption investigation, followed the template set out by Michigan in 1981 — with a host of other states, including Florida and Illinois, enacting similar statutes. Proponents framed it as "sharing costs" between the state of Connecticut and those incarcerated — an argument that resonated with many during a time of budget crises and rising austerity measures due to decreased federal funding and reimbursement for state programs and services.

    This climate made pay-to-stay popular with state Republicans and Democrats alike. It also shifted the tax burden to the incarcerated population. As police commission member Louis Goldberg asserted in 1996: "Why should I pay for it? I didn't break the law. People should be responsible for the actions they cause and the cost associated with that. Why should the taxpayer be left holding the bag?"

    Since then, the legislature updated the policy to increase its revenue potential. In 2001, Connecticut lawmakers amended the statute to allow additional assets to be subject to collection for up to 20 years after the release from prison, funds that are essential for incarcerated individuals to reenter society and support dependents.

    The push to seek revenue from citizens to fund the criminal legal system changed after the 2014 police killing of Michael Brown in Ferguson, Mo. The Justice Department's Ferguson Report detailed an unjust and racialized system of revenue extraction, with law enforcement disproportionately targeting Black residents for minor offenses such as jaywalking or broken taillights to collect fines and fees through municipal courts.

    The report strongly urged other states and jurisdictions to investigate the expansion of monetary penalties, given the report's key finding that these practices were both widespread and disproportionately burdened the economically marginalized, especially in Black communities and communities of color.

    But, while places like Connecticut may have made advances in the past few years on some criminal legal changes, their pay-to-stay systems are still in place. For example, Connecticut has achieved dramatic reductions in its prison population in the past decade, decreasing it by 50 percent and with plans to close three state prisons, saving the state millions.

    However, Connecticut ranked near the bottom of states in 2020 on the Fines and Fees Index compiled by the National Center for Access to Justice. Many of these financial penalties in Connecticut are "user" fees that penalize citizens for simply doing things like requesting a jury trial, fulfilling community service hours and completing mandated drug testing. While the state has begun to make strides in this area by limiting the use of cash bail in 2017 and eliminating driver's license suspensions for unpaid debt in 2021, there is still significant room for change — especially because cases like Tianna Laboy's continue to be commonplace.

    Following the murder of George Floyd in 2020 and the massive ensuing social movement for equality, Connecticut lawmakers have turned their attention to criminal legal change broadly with enthusiasm, passing several bills rethinking many aspects of the legal process — limiting solitary confinement, making it easier to clear criminal records and removing fees for in-prison phone calls.

    And yet, the persistence of pay-to-stay and civil lawsuits continue to hurt both incarcerated individuals and their families. That's why across the country public support for this type of predatory practice has shifted, with states such as Illinois (in 2019) repealing prison pay-to-stay laws and ceasing the practice of suing incarcerated individuals for the costs of being locked up. If Connecticut follows suit, it will move toward a more equitable and fair system of justice for all.

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    April D. Fernandes is assistant professor of sociology at North Carolina State University researching social control and its consequences.

    Brittany Friedman is assistant professor of sociology at the University of Southern California researching punishment and institutional predation.

    Gabriela Kirk is a doctoral candidate in sociology at Northwestern University researching criminal legal policy and the logics of punishment.

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