As I have previously discussed, the criminal justice system has become an avenue for the government to make money. We are seeing an influx of cities, counties, and states using criminal charges as a basis for monetary charges assed in exchange for someone’s physical freedom during pretrial, to charge for basic needs while in custody, and to charge for post-sentencing court-imposed requirements. My previous post focused on pretrial release fines and fees and my next post will hone in on the fines and fees related to diversion programs and post-sentencing release, which means this post will illustrate fines and fees imposed while in custody.
A defendant may be in custody at any time once she is arrested for a crime. She may be in custody both pending and during trial because she was ineligible for release (either by statute, a judge’s discretion, or because she did not have the means to pay for her release), or she may be in custody as part of her sentencing. Typically, a person in jail, opposed to prison, is there either pretrial or during trial but pre-conviction; awaiting sentencing and/or transfer to another facility; or serving a relatively short sentence, usually a term less than one year. Prisons are long-term holding facilities that typically house individuals who were convicted of a felony and sentenced to serve more than one year. This post will include fines and fees imposed and collected in both jails and prisons.
Pay to Stay
The in-custody fee that tends to have the most visceral reaction is the practice of ‘paying to stay’ or charging a ‘per diem’ fee. These fees, typically utilized by county jails, but also in place in prisons, actually charge inmates a daily ‘room and board’ fee for being incarcerated, as if the person checked into a hotel. Nationwide, it is unclear whether or not these fees begin accruing while a person is in custody prior to sentencing, if the per diems are only imposed once sentencing has taken place, or if, like in California, the fees can be charged retroactively for pre-sentencing custodial time after a person has been sentenced.
The most recent comprehensive study of these practices comes from an eleven-year-old report from the National Institute of Justice that surveyed 224 jails nationwide, and reported that 90 percent (pdf. page 17) of the responding parties do in fact charge per diems. Last year, the Brennan Center tweeted that forty-three states utilize pay-to-stay practices and forty-eight states charge per diems or medical fees, while there was no reported data on the remaining two states. Daily “rates” as well as requirements and standards (such as ability to pay, daily maximums, or lack thereof) for imposing these fees can vary from state to state, with some states charging as much as $80 a day (map, see New York).
In California, it is unclear if state prisons impose these fees since the available data surrounding pay to stay practices focuses on city and county jails. As noted previously, pursuant to Penal Code section 1203.1c(a), California may charge defendants, based on a determination of ability to pay, the ‘reasonable costs of’ incarceration, including time spent incarcerated prior to the disposition of the case. It is likely that California and other states that use ‘ability to pay’ as a factor for imposing the per diem fee will rarely have the opportunity to do so since the majority (figures 3 and 4) of the incarcerated population make less than $22,500 annually. However, there is little information regarding how a determination of ability to pay is made–for example, information regarding what factors are considered or if the fee will be lowered rather than, waived.
For those incarcerated in California jails with the financial means to do so, there is the option of paying a fee to be transferred to a different and ‘better’ facility to serve the ordered in custody time. The majority of these facilities, like the Fremont Detention Center, advertise that they house inmates in ‘cleaner, more modern, and more efficient’ ways than the standard county jail. Similar to Santa Clara County’s Sheriff’s Work Program, some of these alternate facilities, like the one in the city of Burbank, allow for time in custody to be spent on weekends or weekdays, depending on ‘the participant’s’ schedule. (Notice how these criminals are no longer labeled as criminals–apparently money can buy anything!). These types of alternate “choose your time” programs will be discussed in my next post.
The alternate jails tend to be far more lenient than county jails, some allowing a change of clothes for each day to be served, flat screen televisions and computer rooms, personal blankets, pillows and food, and reportedly even the use of iPods and cellphones. All of these amenities come at a hefty price, usually ranging from $100-$180 per day with an application and one-time initial fee. Most programs use some sort of an application that have the same, or similar questions as this one, however, apparently some facilities accept and deny applications arbitrarily, rejecting anyone they wish.
The states that regularly impose pay to stay fees regardless of the facility, like Ohio, are finding that pay to stay practices tend to be ineffective in generating revenue and can even end up costing the state and county money. In 2008-2011, an Ohio county was unsuccessful in collecting pay to stay fees, recovering these fees from only 15% (pdf. page 4) of its incarcerated population. The effect of this practice is harrowing as it subjects the generally (estimated 80%) low income incarcerated population to insurmountable debt upon release, which is just another side effect of the criminal justice system that disproportionately affects the poor. This debt can cause a multitude of problems for an individual, especially someone who was barely making ends meet before incarceration. Some of these problems include aggressive collection tactics such as liens on assets or estates, additional fines, driver’s license suspensions, and even re-incarceration.
As outrageous as pay to stay fees are, correctional facilities didn’t stop there. Some jails and prisons have gone as far as charging inmates for basic needs such as clothing, blankets and towels, toilet paper, medical and dental services, and even meals. One facility in Tennessee charges $9.15 per pair of pants issued, $6.26 for each blanket, and $1.15 for each towel. In 2013, relying on the logic that ‘everybody else has to pay for food’, infamous tough on crime sheriff Joe Arpaio of Maricopa County, Phoenix, was slated to start profiting from charging inmates $1 per day for their two meals, since meals only cost $0.60 per day. It is unclear whether or not the Sheriff succeeded in his endeavor, however, he is transitioning the eight jails he runs from serving a balanced omnivorous menu, to a pure vegetarian menu, saving him a measly nine cents per meal.
In our very own backyard in Santa Clara County, the jail provides only one ‘set’ of clothes (pdf. page 24) at a time, exchanging them only once or twice a week, forcing inmates to live, sleep, and even exercise in the same set of clothes for days at a time. Inmates attempt to combat the poor hygiene practices by sneaking an extra pair of clothes or underwear, which if found, can result in disciplinary action.
It has also been reported (pdf. pages 37-41) that the jail does not provide adequate amounts of soap and shampoo, cleaning and sanitizing products for cleaning cells, toilet paper, and even feminine hygiene products. However, the County has been kind enough to contract with Aramark (Agreement with Aramark), a for-profit company, to allow inmates to purchase (Agreement with Aramark, pdf. pages 33-37) some of these products in the commissary: a bar of soap that reportedly lasts one shower costs $1.20 (pdf. page A-29) deodorant costs $5 (pdf. page A-230), and a tube of toothpaste $8-9 (pdf. pages A-136, A-202, A-225).
For indigent inmates that cannot afford these high prices, the Santa Clara County jail does provide indigent hygiene kits (pdf. page 40) once a week on Wednesdays—regardless of what day you arrive. Although the County’s contract with Aramark states that these kits will include toothpaste (Agreement with Aramark, pdf. page 12), it is unclear if that is the case, as inmates have reported (pdf. page 41) that they do not include toothpaste, or even shampoo and deodorant. Although these indigent kits are free if an inmate has less than $2 in his account, the price ($1.10) is deducted from the inmate’s account, potentially creating a negative balance. If this is the case, if and when an indigent inmate does deposit money into his account, the negative balance will be applied retroactively (Agreement with Aramark, pdf. page 26) to the “free” kit.
Santa Clara County also siphons money from its inmates by charging $20-25 (pdf. page A-57, A-223) to activate the phone calling service in addition to charging a per minute rate (pdf. page A-9) for phone calls.
In 1976, the Supreme Court decided the landmark case of Estelle v. Gamble, holding that failure to provide medical care to inmates constitutes cruel and unusual punishment under the Eighth Amendment. Still, at least 38 states charge as much as $100 for medical services while in custody, including additional fees for prescriptions (section C), the costs being reasoned away as a necessary means of discouraging abuse. However, the costs have deterred some inmates from seeking medical care, which has the potential to affect all inmates through the spread of bacteria. The lack of accessibility to health care has even led to death. In Santa Clara County, it is unclear whether or not jails are charging a fee to see a doctor as some inmates have reported paying $3-5 (pdf. page A-97, A-115) per request or visit, while others have said that the fee is no longer (pdf. page A-18) imposed.
All across the nation, jails and prisons are offering various educational and vocational classes as they have shown to reduce recidivism rates, however this too can disproportionately affect the poor as some states charges inmates a fee per course.
As with pretrial release, you likely have an advantage when spending time in custody if you can afford the extra costs to make life a little more bearable. Although some critics argue that the inmates are the one that did the wrongdoing and taxpayers should not have to pay for them to be punished, we are seeing a system that continually creates harsher conditions for those who do not have expendable funds. Is allowing two people charged with the same offense to serve two different sentences with different living conditions based on their income really in the interest of justice? Does our current system really “punish” or even “rehabilitate” those for the crimes they commit? Or does it perpetuate the ever-growing system of wealth inequalities across the nation? In my next post, I will discuss how the justice system continues to treat people of low income unfairly by sentencing them to harsher punishments and not affording them the same community-driven diversion programs that it allows people with disposable income.