Pay-to-stay fees put some Wisconsin inmates in sizable debt
MADISON, Wis. (AP) — In 2011, Sean Pugh was arrested for allegedly violating terms of his release from prison. A year and a half into his roughly two-year stay in the Brown County Jail, he realized he owed the county around $17,000 — the result of a $20 daily “pay-to-stay” fee plus fees from previous jail stints.
Brown County is one of at least 23 Wisconsin counties that assess “pay-to-stay” fees, which charge inmates for room and board for the time they are incarcerated, according to a Wisconsin Watch survey of county jails.
“While most inmates have exploited society in some way, financial exploitation of the incarcerated creates a vicious cycle that contributes to the pitfalls of getting back on one’s feet after release,” Pugh said in an email. “The entire incarceration experience leaves one in a worse financial state then when they went they went to jail/prison.”
Wisconsin is among at least 40 states where some inmates are required to pay daily room and board fees.
The nonprofit news outlet Wisconsin Watch provided this article to The Associated Press through a collaboration with Institute for Nonprofit News.
But this practice varies across states, according to the Brennan Center for Justice, a New York-based public policy and law institute that focuses on democracy and justice. Some states charge jail inmates, prison inmates or both. Some states charge only inmates who are working, while other states charge all inmates.
Pugh, who is now incarcerated at the state’s Stanley Correctional Institution in Chippewa County, said in an email that Brown County ultimately agreed to forgive the entire debt. He argued that it was the Department of Corrections’ decision to keep him jailed so long while it investigated the alleged violation of his release terms.
Pugh filed a small claims action seeking repayment of the money he had already paid, alleging the county was trying to “double dip” by billing both him and the state for his stay. Pugh said he was offered a settlement of $1,000, which he accepted.
“Had I not needed the money, I could have held out on principle to expose this, but I was not in a position to pass on the settlement,” Pugh said.
Brown County’s imposition of pay-to-stay fees was upheld in a 2013 federal decision. Former inmate Lamon Barnes’ federal lawsuit alleged the county’s pay-to-stay fee when applied to pretrial detainees is unconstitutional.
Barnes was booked into the Brown County Jail in January 2011, was found guilty in February 2012 and sentenced a month after that — resulting in a $9,160 pay-to-stay bill.
Judge Lynn Adelman for the U.S. District Court for the Eastern District of Wisconsin found that fee did not violate the prohibition against subjecting a detainee to punishment before conviction.
“There is no evidence that Brown County was motivated by a desire to punish pretrial detainees when it collected lock-up fees from them,” Adelman wrote. “The policy appeared to be rationally related to the county’s legitimate interest in ‘effective management of the detention facility.’ ”
Under Wisconsin law, counties can decide whether to levy pay-to-stay fees for the entire period of time the person is in jail, including pretrial detention.
The jail systems in Wisconsin’s two largest counties — Dane and Milwaukee — do not levy pay-to-stay fees. But in other Wisconsin counties, jails are taking in hundreds of thousands of dollars a year, the Wisconsin Watch survey found.
Such fees have escalated in recent decades. The U.S. Supreme Court recently ruled in a 9-0 decision that financial penalties levied by states may be so high as to violate the federal Eighth Amendment constitutional protection against excessive fines.
In Wisconsin, each county decides whether or not to charge non-working jail inmates a daily room and board fee. Many Wisconsin counties charge inmates with Huber privileges, which allow the inmate to leave jail for work, school or other reasons. Inmates on work release in Wisconsin state prisons are also charged room and board.
Jail fees often impact low-income individuals the hardest — the average income for someone arrested is a little more than $19,000, according to the Prison Policy Initiative, a think tank that works against what it describes as over-criminalization.
Many people could have a hard time paying such fees. Wisconsin counties that charge a pay-to-stay fee average $13 a day, Wisconsin Watch found, or about $390 a month. According to the Federal Reserve, about 40% of people in the United States could not afford a surprise $400 payment.
“If I could create a perfect system to maintain inequality, create inequality and sustain it over time, this is the system,” University of Washington sociology professor Alexes Harris said. “The process perfectly labels, stigmatizes, financially burdens and imposes further legal consequences to poor people.”
In addition to pay-to-stay, there are other fees inmates must pay, depending on the county they are in. Some may have to pay for work release, medical visits, electronic monitoring, phone calls and DNA collection.
When Mishelle O’Shasky was serving a 9-month jail sentence in 2004 for drunken driving, she paid $500 a month for electronic monitoring — almost as much as her apartment rent.
It was difficult to pay for both electronic monitoring and her regular bills, said O’Shasky, a single mother of four children who was in and out of jail and prison for more than two decades because of substance use and mental health challenges.
“Even when you think you’re done paying for things, you’re not,” said O’Shasky, who lives in Rudolph, Wisconsin. “It’s traumatizing.”
Even though monetary punishment has long existed, there has been a dramatic increase since the 1990s and early 2000s, Harris said. Wisconsin’s pay-to-stay law was enacted in 1996.
Prior to working as a criminal defense attorney, David Stegall was as an assistant district attorney in Milwaukee County. As a prosecutor, jail fees were not something he saw. When he got to private practice, however, the fees became more visible.
His clients are usually “shocked” by the fees charged. Stegall said even with a low-level crime, like disorderly conduct, the total can easily be $500 to $600.
Wisconsin Watch got pay-to-stay and booking information for 60 of 72 Wisconsin counties. Of those, 36 county jails charge a booking fee, and 17 counties charge for both booking and pay-to-stay. Eighteen charge neither a booking fee or a pay-to-stay fee.
The highest reported pay-to-stay rate was $26 per day in Winnebago County, and the lowest was $5 per day in Iron, Dunn and Wood counties.
The cost of electronic monitoring for inmates on some form of release also varies by county, Stegall said, but it is between $15 and $35 per day — or up to $1,050 a month. These and other fees can become a significant source of income; Winnebago County reported receiving about $950,000 a year.
Marathon County jail administrator Sandra La Du said the jail is “far from making money” on these fees, which bring in about $700,000 a year.
Joanna Weiss, co-director of the New York-based Fines and Fees Justice Center, says the justice system serves everyone and “needs to be funded equitably, not on the backs of people going through it.”
In Wisconsin, counties cannot charge more than their actual per-day cost of keeping an inmate in jail.
The average expected stay in jail was 25 days in 2016, according to the U.S. Bureau of Justice Statistics. At an average of $13 per day, inmates incarcerated in a pay-to-stay county for a typical stay could leave with a $325 bill.
The Wisconsin Watch survey found inmates on Huber are charged anywhere from $15 to $26 per day, depending on the county where they are incarcerated. Bayfield County’s jail administrator Kathleen Haiden said that people with a job should help pay, but those without a job should not.
“We wouldn’t want to put that on the family when they are probably already financially challenged,” Haiden said.
In addition to pay-to-stay, those on work release in Wisconsin prisons are responsible for paying income taxes, transportation, child support, restitution and other responsibilities under state law.
Department of Corrections spokeswoman Clare Hendricks said in an email that inmates working outside the institution can pay up to $740 per month for room, board and transportation.
O’Shasky is the founder and executive director of Peer Association Inc., a La Crosse, Wisconsin, nonprofit that provides reentry services for people like herself.
The first time O’Shasky went to prison was in 2000 for failing to pay child support. She owed a couple of thousand dollars. After she got out of prison, O’Shasky still owed the money plus interest.
“I ended up paying like $40,000 in child support when the court ordered $10 a week back in 1992,” said O’Shasky, who was in prison three different times. “You’re just stuck forever. I just finished paying that, and my child is 27 years old.”
As jail populations swell, county jails are struggling for money, Stegall said. The solution, he said, is often to charge the offender.
A common argument made by those who support pay-to-stay is these individuals commit crimes, creating a need for jails, so they should pay, said John Cooper, the executive director of Safe & Just Michigan. The Lansing group focuses on reducing Michigan’s use of incarceration.
But Cooper said most people in jail are there because of lack of opportunity and poverty and pay-to-stay exacerbates that. “There is a good argument,” Cooper said, “that it undermines public safety.”
In fact, a 2018 report by the nonpartisan, nonprofit group Alabama Appleseed found 38% of respondents had committed another crime to pay off the fines and fees they already had.
“If you get sent to jail, probably you are going to lose your job. When you’re coming out of jail, you’re going to need to get a car,” Cooper said. “If you can’t get a car loan because your credit is bad because you’ve got all this criminal justice debt, it’ll be hard to get a job. How are you going to pay it all back? What are you going to do to provide for yourself and your family?”
Some states have begun to rethink fees, including New Hampshire, where Gov. Chris Sununu in July signed a measure repealing that state’s pay-to-stay law.
Said Harris: “Yes, we still want to hold people accountable for their offending, but we need to make sure we do it in a way where they can show accountability, make amends and then move forward to have productive lives.”