Unveiling hidden injustice: The truth behind ‘pay-to-stay’ prison policies

College students aren’t the only ones facing room and board charges.

So-called “pay-to-stay” statutes administered by city, county and state governments across the United States leave millions of incarcerated individuals — both past and present — subject to the partial or total cost of their imprisonment.

Sociologist Brittany Friedman at the USC Dornsife College of Letters, Arts and Sciences is examining this often overlooked, long understudied issue. She says it’s a controversial practice that contributes to widening inequalities in American society.

“The average person in the U.S. could not afford a pay-to-stay bill, let alone an incarcerated person who is sued by a state attorney general,” says Friedman, assistant professor of sociology at USC Dornsife, adding that the bill often approaches six-figure amounts. And because these are civil suits, defendants are not entitled to an attorney.

Earlier this year, Friedman and two of her longtime collaborators, April D. Fernandes of North Carolina State University and Gabriela Kirk-Werner of Syracuse University, received $1.5 million from the nonprofit Arnold Ventures to launch the Captive Money Lab. The five-year funding pledge supports the research lab’s mission to advance research, policy and advocacy around the political economy of punishment, the links between the prison system, politics and state finances.

Understanding pay-to-stay

Friedman first became interested in pay-to-stay policies in 2016 as a graduate student at Northwestern University when she discovered a little-known Illinois statute allowing the state’s attorney general to sue incarcerated people for their prison stay. She submitted a Freedom of Information Act request asking for records on the practice and, intrigued by what she found, recruited two fellow graduate students — Fernandes and Kirk-Werner — to launch the first in-depth study of states’ pay-to-stay policies, specifically the use of civil lawsuits to recoup money.

“We found that states largely enforce pay-to-stay unevenly, often imposing these laws amid financial turmoil as a means to boost the state’s balance sheet,” said Kirk-Werner.

The researchers witnessed cash-strapped states using pay-to-stay laws, a practice first employed during the Great Depression, to seize stimulus checks amid the COVID-19 pandemic.

“States increase their reliance on these laws at will, most likely when prompted by financial hardships and budget shortfalls,” Fernandes explains. “So incarcerated people could be subject to the seizure and collection efforts of the state through pay-to-stay.”

And when using civil lawsuits to recoup money, states effectively limit protections for defendants by freezing assets, impacting their ability to find legal representation and to appeal.

Civil lawsuits also increase the potential length of time incarcerated defendants can be subject to collection efforts. Some states extend the pay-to-stay collection period as much as 20 years beyond an individual’s release.

“There’s a financial impact to these policies, of course, but also a psychological impact,” says Da’ee McKnight of Family ReEntry, a Connecticut-based organization advocating for criminal justice reforms. “Even after their release, people don’t feel they can start over with these policies hovering over their heads.” McKnight and his Family ReEntry colleague Fred Hodges were part of a coalition that in 2022 advocated for the repeal of pay-to-stay in Connecticut, which ended with a partial rollback of the practice.

The Captive Money Lab researchers submitted written testimony summarizing their research to Connecticut lawmakers during that 2022 repeal debate and penned a related article published in the Washington Post. Their detailed work on monetary sanctions earned publication in academic outlets such as Sociological Forum and the Journal of Contemporary Criminal Justice, garnered further national media attention and, ultimately, captured the attention and support of Arnold Ventures, a philanthropy that supports policy research projects addressing inequities and injustices in American society.

Finding solutions to pay-to-stay

As Friedman and her colleagues studied the pay-to-stay issue, they began to see it as a solvable problem centered on access to justice. Now, fueled by Arnold Ventures’ support, the newly formed Captive Money Lab will expand their national study of state pay-to-stay practices and recoupment strategies.

The researchers will also investigate the impact pay-to-stay policies have on incarcerated individuals and their families. This includes reentry into society, familial connections and the larger consequences for families to build wealth from generation to generation, particularly for Black and Latino communities, which make up the majority of those incarcerated in U.S. prisons.

In addition, the Captive Money Lab plans to conduct a detailed fiscal analysis of the economic costs and benefits of pay-to-stay policies, including if the funds obtained from incarcerated individuals outweigh the costs of state agencies trying to recoup the funds.

To stimulate awareness, discussion and more informed decision-making, the Captive Money Lab has partnered with Hyperobjekt, a digital agency specializing in academic and nonprofit public interest projects, to build a website housing the lab’s public-facing data, policy briefs and academic papers.

As nearly every state has a pay-to-stay statute on its books, Friedman says it’s important to consider the various dimensions of these measures, which can apply to as many as 1 million individuals currently incarcerated in state prisons.

“Should we seize the assets of people and their families and prevent them from starting over on top of having them serve their time in prison?” Friedman asks. “Additionally, should we exhaust taxpayer money on civil lawsuits to recoup pay-to-stay bills that people can never afford to pay?”

Through the Captive Money Lab, Friedman, Kirk and Fernandes hope to find answers to these and other pressing questions.

More information about the Captive Money Lab is available at captivemoneylab.org and on social media: @CaptiveMoneyLab.