PAYING FOR THE PRIVILEGE OF PUNISHMENT: REINTERPRETING EXCESSIVE FINES CLAUSE DOCTRINE TO ALLOW STATE PRISONERS TO SEEK RELIEF FROM PAY-TO-STAY FEES.

• Author: Haighf, Kristen M.

TABLE OF CONTENTS

Introduction 288 I. Pay-to-Stay Arrangements in State Penal Systems 290 II. The Excessive Fines Clause: History and Doctrine 295 A. Historical Background of the Excessive Fines Clause 296 B. Excessive Fines Clause Doctrine Today 299 1. What Is a "Fine"? 300 a. Browning-Ferris Industries: "Payment to a Sovereign as Punishment for Some Offense" 300 b. Austin v. United States; Alexander v. United States: Forfeitures and Punitive Versus Remedial Intent 302 2. When Is a Fine "Excessive"? 303 III. Application of the Excessive Fines Clause to State Pay-to-Stay Programs 306 A. Case-by-Case Grounds for Relief 307 1. Remedial Fees Versus Punitive Fines 307 2. A New Understanding of the "Grossly Disproportional Test" 312 B. The Private Prison Puzzle 315 1. Browning-Ferris Industries, Paroline, and the "To A Sovereign" Requirement 317 2. Proposing an Alternative Doctrinal Requirement: An "Essential Government Function" Test 319 Conclusion 322 INTRODUCTION

Across the country, the criminal justice system is becoming both more private and more expensive. Some prison systems have come to rely on private contractors for electronic monitoring, probation, pretrial services, and incarceration services. (1) At the same time, criminal justice fees are exploding, including fees charged to inmates for their "room and board" while in prison. (2) These fees, sometimes called "pay-to-stay," are imposed at the state and county level, and how they are applied varies widely. (3) Some take into account inmates' ability to pay the fees, or the effect on their families. (4) Some do not. (5) Some only apply to prisoners with paying jobs. (6) Some apply to every prisoner. (7) What they all have in common is this: these fees are imposed on convicted offenders who are statistically likely to be low income, and therefore less likely to be able to pay. (8)

Because of this reality, the effects of pay-to-stay systems can be devastating, even when the crime is comparatively minor and the sentence is relatively short. Take the example of George Richey, a Missouri man who spent three months in jail after a misdemeanor conviction. (9) The county charged him thirty-five dollars per day for his stay in jail, leaving him with a bill of $3150 just for room and board. (10) Richey's only income was a $600-per-month disability payment, and over two years after his release from jail, he still owed the county more than half his bill. (11)

In an absurd twist, because Richey could not pay the room and board fees for his jail sentence, the county put him back in jail for failure to pay and charged him an additional $2,275 in daily fees for his new jail time. (12) By the time Richey was released again, his debt was higher than it had been before he began paying it down. (13) He still could not afford to pay it. (14) Describing the difficulty of breaking out of this cycle of criminal justice debt, Richey lamented that "[i]t's like trying to shovel in a blizzard." (15) Finally, the court told him "his bill would only be dismissed if he agreed to serve a second 90-day jail stay." (16) In other words, the only way to escape his pay-to-stay debt was to volunteer to serve double the time for his original crime. (17)

When pay-to-stay fees prove ruinous, as they sometimes can, prisoners like Richey may finally have a practical constitutional remedy. In 2019, the Supreme Court turned its attention to a long-ignored clause of the Constitution, the Excessive Fines Clause, which prohibits the government from imposing excessive fines on its citizens. (18) In Timbs v. Indiana, the Court declared this Clause of the Eighth Amendment was a "safeguard [that] ... is 'fundamental to our scheme of ordered liberty"' and that it must apply to the states. (19) This Note argues that in the aftermath of Timbs, current Excessive Fines Clause doctrine can be interpreted to grant state and county prisoners increased opportunities to bring challenges to pay-to-stay fees. Bearing in mind the Clause's historical background and purpose, it is consistent with the current doctrine for prisoners to argue that these daily fees constitute fines and that those fines are excessive. (20)

Part I explains pay-to-stay fees at the state and local level throughout the United States, providing a specific example through

"subsistence fee statutes in Florida. Part II then discusses the history of the Excessive Fines Clause and reviews the Court's jurisprudence, drawing doctrinal lessons from each of the four cases in which the Court has interpreted the Clause. Part III argues that prisoners should be able to seek relief from pay-to-stay fees under the Excessive Fines Clause. Part III.A argues that these fees can constitute fines under the Clause, and that those fines can be excessive, particularly if the Court incorporates an "ability to pay" consideration into the evaluation of excessiveness. This Section argues that this slight modification is consistent with the purpose and history of the Clause, and that moral and procedural process concerns support the change.

Finally, Part III.B argues that a doctrinal limitation on fines-that they must be paid to the government to qualify for Clause protection--should be reinterpreted to allow prisoners to seek relief for payments made to private prison contractors. This can be done by reinterpreting this requirement consistently with the Court's dicta in Paroline u. United States, to say that a fine does not need to be paid to the government if the imposition of the fine sufficiently "implicates 'the prosecutorial powers of government."' (21) Alternatively, the Court could address the increasing privatization of the criminal justice system by adding a new requirement to the doctrine: that qualifying fines must be paid to the government or to an "entity performing an essential government function at the government's behest." (22)

1. PAY-TO-STAY ARRANGEMENTS IN STATE PENAL SYSTEMS

   Broadly, "pay-to-stay" refers to the custom of charging prisoners for their time in jail. (23) Under pay-to-stay programs, prisons can charge daily fees for costs associated with prisoner care; these fees are often characterized as "room and board." (24) Alternatively (or additionally), a pay-to-stay program can take a more a la carte approach, charging for necessities like toilet paper and clothing. (25) These pay-to-stay fees are part of a larger trend in American criminal justice, where revenue-raising fees are imposed on a wide variety of pre- and post-conviction services. (26) With state and local governments charging these fees at many stages during arrest, conviction, and post-release supervision, "an estimated 10 million people ... owe more than $50 billion resulting from their involvement in the criminal justice system." (27)

   Pay-to-stay fees are a relatively new phenomenon; "room and board" charges exploded in popularity in the 1980s and steadily gained traction over the next three decades. (28) These fees do not replace traditional fines in criminal actions; rather they are imposed on top of other common criminal consequences like restitution or punitive payments. (29) Though many states authorize some form of pay-to-stay fees in state prisons or county jails (or both), there does not appear to a be a uniform model. (30) Some states authorize only county jails to collect these fees. (31) Other states take payment only from those inmates who are employed or on work release, while others recover fees from inmates regardless of employment status. (32) Though the permutations of these programs are many, the justifications for them tend to be similar. States enact pay-to-stay fees to help defray rapidly rising costs associated with rising prison populations. (33)

   Proponents of these programs point to moral and political arguments in favor of this arrangement. (34) First, consider some policy alternatives: to address rising costs associated with growing prison populations, one could either (1) reduce those costs by reducing the prison population, or (2) raise new revenue to cover those costs. (30) Faced with the complexities of comprehensive criminal justice reform in the first case, and the unpopularity of tax increases in the second, (36) it is not hard to see why "policy makers, judges, and sheriffs can often gain the support of constituents by supporting inmate 'pay-to-stay' fees." (37) Rather than campaigning on complicated systemic reforms or trying to sell tax increases to a reluctant constituency, elected officials can propose a simple solution: if you do the crime, you, and no one else, must be ready to pay for it. (38)

   This logic has some intuitive appeal: if these prisoners were the ones who committed a crime, then why should innocent, law-abiding taxpayers have to pay for it? (39) On closer inspection, the reasoning is not so clear-cut. From a moral standpoint, one may argue that when the citizenry chooses to punish wrongdoing with the extreme remedy of removing a fellow citizen from society, the citizenry must bear the necessary costs of that choice. (40) Beyond this moral imperative, there is also a practical reason to view this "simple" solution with some skepticism: these programs do not always deliver the revenue they promise. For example, the American Civil Liberties Union (ACLU) of Ohio investigated pay-to-stay programs in Ohio jails and found that high charges do "not translate into higher collection rates." (41) Furthermore, the ACLU found that when the counties employed collections agencies to recover the debt, those agencies "impose a new cost on jails" without providing any increase in the likelihood that the fees will be paid. (42) Ohio is not alone in finding that the revenue benefits of pay-to-stay programs may be overstated. (43)

   Still, supporters argue that these fees serve important purposes, even beyond revenue. The fees can play a role in punishment, driving home the lesson that a criminal must be prepared to pay for their crime...