Pretrial Detainees Are Being Billed For Their Stay in Jail

In jurisdictions across the country, people incarcerated before they've ever been convicted of a crime are charged a daily fee just for sitting in jail—and several courts have ruled that the practice is legal.

On any given night, it is estimated that nearly half a million people who haven’t been convicted of a crime are sleeping in local jails. The vast majority remain behind bars because they can’t afford to pay bail.

But in many parts of the country, pretrial detainees are also charged a daily fee. In these jurisdictions, being too poor to get out of jail doesn’t just mean weeks or months of incarceration before their case is adjudicated—it can also mean hundreds or thousands of dollars in fees ostensibly meant to defray their detention costs. Of the criminal justice system’s many fees, pretrial jail fees are among the most pernicious because they are overwhelmingly billed to poor defendants, creating a cycle of debt that can lead to more jail time.

Policies regarding jail fees—sometimes referred to as “pay to stay”—vary from state to state and even across counties. Some fees are instituted by state law. In Virginia, local authorities are allowed to charge detainees up to $3 per day; in North Carolina, fees are set at $10 per day; in Kentucky, people can be charged up to $50.

In other jurisdictions, local governments decide how to charge pretrial detainees. In Shelby County, Tennessee’s largest and most populous county that includes Memphis, people are charged $38 per day while they await trial.

Such fees are often waived or refunded if a defendant’s charges are dismissed or if they are acquitted at trial. Judges can also waive the fees if they determine that a defendant will be unable to pay them. Still, pretrial jail fees are assessed by the millions every year.

Nashville recently eliminated its $44-per-day fee, a move led led by Metro Council Member Freddie O’Connell who called it a “non-sentenced form of financial punishment.” The city’s pretrial fees were both punitive and hardly worth the trouble in financial terms. During a three-year period ending in 2017, Nashville collected just $533,873.42 of the $11,411,448.55 in pretrial jail fees billed to defendants. So, the city simply saddled thousands of low-income residents with debt while collecting little in the way of revenue. And the fees led to extraordinarily damaging consequences for pretrial detainees, such as the suspension or revocation of their driver’s licenses. (That won’t happen anymore in Tennessee. On July 2, a federal judge ruled that the state’s law revoking driver’s licenses from people who can’t pay court costs is unconstitutional.)

Worse, in many states, pay-to-stay fees are taken out of a prisoner’s commissary account—or the fees are so significant that upon release detainees are left with a large bill.

Pretrial jail fees have been challenged on the basis that they punish those who have been charged but not convicted of a crime, although several courts have upheld them as constitutional. In 2008, the United States Court of Appeals for the Fourth Circuit upheld Virginia’s pay-to-stay fee, ruling that it didn’t constitute punishment violating a pretrial detainee’s due process rights. Similarly, in 2013, a U.S. District Court judge in Wisconsin ruled that Brown County’s $20-per-day fee did not violate the due process rights of a man who racked up $9,160 in fees between his initial booking until his transfer to the state prison system.

“We have had an expanded criminal justice system over the last 25 years and governments have funded mostly police and prosecutors,” said Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute, “[but] they they have not funded in equal amounts jails, courts or public defenders. So we now have a situation in which the criminal justice system as a whole is crumbling under the pressure of volume without resources. The only silver-lining in that is that because there aren’t really additional resources, the only option is to shrink the system.”

Burdeen adds that pretrial jail fees are just one part of a constellation of fines and fees faced by people ensnared in the criminal justice system. Criminal defendants, she says, can be charged for booking, their stay in jail, medical care, even the cost of a public defender. “If you’re trying to fund the local criminal justice system on the backs of the people who are using it, they’re not voluntary users,” she says. “These are people coerced into the system through tickets or traffic stops or, yes, arrests. But we also know that we’re not arresting people in gated communities at the same rate we’re arresting people in poor neighborhoods. So you’re trying to fund the criminal justice system on the backs of the people who are least likely to be able to afford it.”