William & Mary Law Review


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. At the same time, criminal justice fees are exploding, including fees charged to inmates for their “room and board” while in prison. These fees, sometimes called “pay-to-stay,” are imposed at the state and county level, and how they are applied varies widely. Some take into account inmates’ ability to pay the fees, or the effect on their families. Some do not. Some only apply to prisoners with paying jobs. Some apply to every prisoner. 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.

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. 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. 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.

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. By the time Richey was released again, his debt was higher than it had been before he began paying it down. He still could not afford to pay it. 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.” Finally, the court told him “his bill would only be dismissed if he agreed to serve a second 90-day jail stay.” 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.

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. 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. 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.

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 v. 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.’” 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.”