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Description

In all 50 states, people caught up in the criminal justice system can be charged fines and fees for everything from the cost of police transport during arrests, to the cost of room and board for their time behind bars. In this episode, Jay learns about the back story of how Pay to Stay policy was inspired by a killer clown. And he speaks to experts and journalists about how Pay to Stay policies lock people into a never-ending cycle of debt and involvement with the criminal justice system.

Transcript

SPEAKERS

Jay Ellis, Nadia Mozaffar, Tony Messenger, Brittany, Katie Ryan

Jay Ellis  01:16

What words come to mind for you when you hear the name John Wayne Gacy, evil, killer, maybe even killer clown? It take long after the discovery of his horrific crimes in 1978 for Gacy to become a household name in the worst way possible. He was at that time America’s most prolific murder ever. Gacy was now more than a name and it was a representation of unthinkable. As he was sitting on death row, Gacy did something a bit unexpected. He started painting.

Brittany  02:59

He actually really began cultivating this love of art, and actually was able to gain a pretty sizable following. And his art became a very hot commodity.

Jay Ellis 

His painting started selling to collectors. And there’s this morbid interest in the art of a killer clown, which by the way, a lot of his paintings were of himself as a clown. Yikes. Suddenly, Gacy got a bit of a business going from his jail cell.

Brittany 

The Department of Corrections in Illinois gets incredibly upset by this. And there’s a lot of upheaval in the public and outcry as to how can someone who has done this really literally being the killer next door, right, because he lived in this suburban neighborhood in Chicago, creating this house of horrors and now he’s making money off of it and the Department of Corrections like what are they going to do about it?

Jay Ellis  04:00

This is the Untold Story, Criminal Injustice. I’m your host Jay Ellis. The injustice is we’re talking about this year don’t stop with felony sentences for petty theft and very dubious forensic practices. Everything in our country’s vast prison industrial complex cost money, and quite a lot of it. And without reality comes an important question. Who exactly is footing that bill? I’ll make lawmakers try to keep programs going but also keep taxes low. Any trick they can come up with to make it happen, they’re going to use it. and it’s easy to look at that balanced budget and not think about who’s suffering because of it. Today we look at the trick that Illinois found in the 80s because if John Gacy is our jama was just about him. We could just get our true camo for a little bit feel creeped out and move on, right? But no, his story is part of just how expensive it has become to be incarcerated in America. But before we go any further, I need to introduce you to that voice we heard telling us about Gacy at the top of the show,

Brittany 

I am Brittany Friedman. I’m an assistant professor of sociology at the University of Southern California. And most of my research actually looks at deviance on the side of institutions.

Jay Ellis

Aha, deviants on the side of institution. That sounds more like our show. But why are Britain and I telling you about a killer clown? Well, to add to that, we have to look at what else was going on in Illinois at that time.

Brittany 

So you have John Wayne Gacy, you have the fact that he’s pretty much created a stain, if you will, in the Chicago area. So they’re concerned about someone profiting from infamy. But they’re also concerned about the fact that they’re facing serious budget shortfalls.

Jay Ellis 

In the 1980s, Illinois, and the whole country really was going through a pretty big recession. And people are slashing budgets for programs left and right. And the Illinois State Legislature was asking themselves, how can we raise some dough? Well, one guy, Representative JJ Wolf, had an idea.

Brittany  06:17

And when he brings the bill to the floor, he literally says as a direct quote, he’s like I was reading the reader’s digest the other day, and Michigan has this great law, where they’re holding offenders accountable for their incarceration.

Jay Ellis 

Holding offenders accountable for their incarceration turned out to be an important choice of words. And we’ll get into why in a little bit. But over time, this idea has gained a catchy name in criminal justice circles, pay to stay. Pay to stay basically means if you serve time in prison, you will be responsible for the cost of it all. Your room, your food, your medical costs, if it costs money while you’re incarcerated, that is no longer on me, the taxpayer, that is now on you, the offender.

Brittany 

The lawmakers in favor, one explicitly said the phrase, oh, is this like if you get a hotel bill. And it’s because they were trying to use this sort of, you know, we provide a service incarcerated people are consuming it. And that’s where the nature of that phrase came from. And so what they did is they made the pay to stay bills look very similar to what you get when you stay in a hotel,

Jay Ellis 

Just not any hotel, I would want to be caught dead in. Now, some lawmakers were on board, but not enough of them to get it passed. So what does representative wolf do to get that extra push on this idea of accountability? Well, he invokes the name of the serial killer that’s on everyone’s mind.

Brittany

He essentially becomes a moral problem that needs to be solved, right? He needs to be held accountable in the moment. And so that is a situation that is a short-term problem that is ideal to latch on to, and present as the overarching argument for why you need a massive policy shift, because expanding pay to stay and passing a law like that. It’s massive, because you’re talking about not just charging John Wayne Gacy. They’re talking about charging the entire correctional population if they can, and seizing assets of people after they’ve done their own forensic accounting to discover money. And so John Wayne Gacy truly becomes a cover is the best way to describe him. He becomes a cover he becomes a political tool.

Jay Ellis  08:44

Brittany says that she’s seen this tactic used a lot throughout history, even you right now might be saying to yourself, well, Jay, I mean, I kind of don’t have sympathy for John Wayne Gacy. If he’s making 1000s of dollars off of paintings, maybe he should pay for his incarceration. But that’s exactly why it works so well.

Brittany 

It just it pulls at your heartstrings. And I find it to be the most effective way to get people to do whatever you want. Especially vote for something. That is where in my opinion, you see some of the most punitive policies coming out of mass incarceration, they all originated as a way supposedly or allegedly to write some sort of wrong. So who’s gonna stand against this with this opener with Representative wolf who’s going to stand up and say, yeah, John Wayne Gacy should profit and get booed out.

Jay Ellis 

So the bill passes almost unanimously, and at first, it did seem like the state would only pursue money from the John Wayne Gacy […]. The kingpins as they said in transcripts Brittany studied but years and decades go by and here and there little by little amendments are passed when the percentage of the incarcerated population that is included in pay to stay practice grows. Pretty soon..

Brittany  10:05

Someone can have as little as $10,000. Nothing like what Gacy was earning. Often it is jointly held with a dependent or a spouse, and the state will sue them for at least six figures.

Jay Ellis 

And what’s more, pay to stay didn’t just stay in Illinois and Michigan, pay to stay or some form of it is on the books in your state. We’ll talk about what that means and just how deep this idea goes after the break.

Brittany 

Someone could sue the Department of Corrections in Illinois for an injury sustained in custody, usually because of violence at the hands of either police officers when they’re arrested or correctional officers while they were incarcerated. And they would win a personal injury settlement. And the […] would use that as evidence that they could pay for their incarceration and then try to counter sue them for the money that they just won from the […] for their pay to stay bill.

Jay Ellis 

What Brittany Friedman just said might sound crazy, but it’s true. In 40 years, we’ve gone from an idea that we’re only going to go after the money of the filthy rich mega criminals to pay for their prison costs to saying, hey, you just want a lawsuit against us. I guess that means you got a lot of money now, time to pay up for a prison time they got you injured in the first place. Brittany’s been research and pay to stay policy in Illinois specifically, where this definition of wealthy has become pretty absurd in a lot of cases she’s looked at. Pay to say isn’t just an Illinois, it’s everywhere. And I now know that it’s just part of what’s really a whole system of fees.

Speaker 3  14:11

These are charges such as police transport, so if someone is arrested, they may have to actually pay a fee for the ride to booking and case filing fees. There are felony surcharges.

Jay Ellis 

This is […] and director of the Brennan Center for Justice at New York University. She was kind enough to sit with me and explain just how many fees there are at every stage of the criminal justice system.

Speaker 3 

And then we have fees that really follow people sort of throughout the criminal legal system. There may be fees when someone is incarcerated. If someone is on probation or parole, there could be fees for electronic monitoring, fees for drug testing, which tends to be a condition that’s required for a lot of individuals on probation and parole. So you know, these are just few of the many examples of these types of fees.

Jay Ellis 

So maybe I’m just a little bit confused, but our taxes not covering these fees. Isn’t that what like we pay taxes for essentially to cover how the system functions and move. So we wouldn’t have to necessarily charge fees to folks who are being charged with crimes?

Speaker 3 

Our taxes might be paying for some of the courthouse services, they might be paying for some of the salaries for the government officials involved in the criminal legal system. But what we have found is that the criminal justice system has become so expensive, that governments are charging individuals for being involved in the criminal legal system. And these fees are revenue generating for county and state governments. It’s very rare that you would leave the criminal legal system without some sort of debt, right, or that you would not have incurred fees and fines, because they are truly at every sort of aspects of this system. Whether it’s pretrial, all these case filing fees, there are fees for public defenders.

Jay Ellis  16:14

A little ding here, and nickel and dime over there a little cream off the top over here, it adds up to the tune of.

Speaker 3 

At a minimum $27.6 billion of fines and fees is owed across the United States.

Jay Ellis 

Whoa, whoa, whoa, hey, producers, can y’all run that back for me one time?

Speaker 3 

$27.6 billion of fines and fees.

Jay Ellis 

I know you can’t see me right now. So just picture like the cartoon eye blinking thing.

Speaker 3 

And that’s truly an underestimate that merely scratches the surface, given the number of states that just don’t track this data at all. And we know that incarcerated workers are paid pennies on the dollar, if at all. So we’re not talking about people who are even earning a minimum wage, but most incarcerated workers, you know, could earn 10, 20, 25 cents an hour. If you’re in a state where you are incarcerated and you are required to work. Much of your salary gets deducted to recruit expenses for food, recoup expenses for that prison bed you’re sleeping in.

Jay Ellis 

Sounds like most of them are walking out with a bill. It sounds like even with the work, the pennies on the dollar work that they’re doing. It sounds like a good portion of them are actually walking out still owing plenty of money when you add in all that, right?

Speaker 3 

Many of them are and there are states who will send formerly incarcerated individuals bills after they leave prison. The Illinois Department of Corrections did send individuals bills once they were released from prison. Florida has done the same thing. Florida law allows the Florida Department of Corrections to charge $50 a day for the cost of incarceration. And they sometimes will charge individuals for their stay in prison.

Jay Ellis  18:19

Which brings us right back to pay to stay. But in another instance of our criminal justice system, being totally not frustrated at all. Pay to stay works just a little bit differently everywhere you go. Campaign Zero has been looking at every state in the union and found that in all 50. It usually exists either in fees for room and board or fees for medical costs or both. In Missouri until very recently, it was common for sheriffs to charge pay to stay fees to people incarcerated in rural county jails. Remember how I said that in Michigan and Illinois, this policy was talked about after economic downturns?

Tony Messenger 

Well, in Missouri and elsewhere, the practice really got exacerbated after the Great Recession in 2008 or so, because that’s when counties started realizing that they were losing revenue and they were looking for places to raise money.

Jay Ellis 

I think I see a pattern. Tony Messenger is a columnist for the St. Louis Post Dispatch. In 2019. He won a Pulitzer for the series of articles he wrote about how people were being impacted by board bills, which is basically Missouri’s term for pay to stay. His work really revealed the biggest problems with this policy.

Tony Messenger 

The only way to force that collection was to put these four people back in jail if they were behind on paying their board bills for previous stays. So what happens in these cases is somebody goes before the judge, and they been in jail for say, 30 days on a shoplifting charge, and they agreed to plead guilty, and the judge issues them a sentence of time served, they get out of jail, and now they owe money for the 30 days they were in jail. So up to $1,500 or so say $50 a day, sometimes the people would show up in court, and they would, you know, make whatever payment they could 50 bucks, $100 try to pay it down.

Jay Ellis  20:26

But let’s face it, I mean, most people can’t come up with $1500 bucks on the spotlight, which means another court date.

Tony Messenger 

And sometimes when you’re poor, and the judge is telling you to come to court, and you don’t have the money, you’re afraid you think you’re going to be arrested. And sure enough, it’s a self-fulfilling prophecy. Because if you skip the court date, you’re going to be issued a warrant for your arrest, and put in jail because you skipped the court date. But really, they’re being put in jail because they’re poor because they couldn’t afford to pay the jail board bill that was issued to them.

Jay Ellis 

Do you see where this is going? Now you’re back in jail, you’re racking up even more debt every single day.

Tony Messenger 

One of the people I wrote about was a gentleman named Corey Booth. Cory was 17 years old in Caldwell County, when he stole a lawn mower. You know, a stupid teenage thing to do. He got arrested. He ended up going to jail. He couldn’t afford bail. Keep in mind, it was a broken lawn mower from a neighbor’s yard. The lawn mower was already returned by the time he got arrested. But they still put him in jail and gave him a bail that he couldn’t afford. He was a poor 17-year-old kid. He’s there for a few days. They eventually bring them before the judge. And he says yes, I’ll plead guilty. If you let me out of jail, he pleads guilty gets out of jail, he gets the bill. Well, then he’s got to be supervised by this private probation company. And he has to do drug testing. One of the things all of these probation companies do is even if your charge has absolutely nothing to do with drugs, they test you for drugs. And if you miss a drug testing, or you can afford to pay for the drug testing, you’ve now violated your probation and might go to jail for that. Well, Corey Booth was a young man who smoked pot. And so he failed the drug test. And so he got put back in jail. And his bill got higher and higher. His initial bill was a few $100. By the time I met Corey, 10 years later, he’s now 27 years old, he’s still going back to the judge, once a month, over this singular charge of stealing the lawn mower when he was a 17-year-old kid. He’s married and has kids. And he used to tell me that, that every month he would have to decide whether or not he robbed from Peter to pay Paul, you know, do his kids get medicine? Or does he pay the judge money. And when he didn’t have money to pay the judge, he went back to jail again. And then his bill got higher.

Jay Ellis 

Cory was not an isolated case. For a lot of people in rural Missouri. This is their life.

Tony Messenger 

These are folks who if they’re lucky enough to have a job, they have a minimum wage job. And then once a month, they have to take off work for half a day, so that they can go sit in court with 30 or 40 or 50 other people and take their turn, standing before the judge and saying here’s my 50 bucks, here’s my 100 bucks, please don’t put me in jail this week. For people who don’t have the money in the counties that would not release them from that debt. There was no way out of the cycle.

Jay Ellis 

You don’t have the money, they put you in jail. It’s hard for me to see this as anything other than the criminalization of poverty itself. Look, I’m not saying that there shouldn’t be consequences for doing something bad. But those consequences should eventually come to an end, right? And then you can move on with your life. These pay to stay fees; they add a whole bonus round of consequences. That’s not justice. Okay, let’s take a breather. Because when we come back, we’ll talk about another population affected by pay to stay. But we’ll also talk about what can be done about it.

Tony Messenger  26:48

State lawmakers started to pay attention and realized this is just not just we have to pass a law that says you can’t put people in jail because they couldn’t afford to pay their previous jail board bill. It’s unconstitutional. It’s illegal, it shouldn’t be happening.

Jay Ellis 

The story of pay to stay isn’t quite over in Missouri, the policy is still on the books, but that law passed and sheriffs have mostly stopped pursuing the money. But what Tony said right there at the end, it shouldn’t be happening. That’s what I want to focus on for a bit. And the research that we’ve done on pay to stay, we found that it’s not just incarcerated adults who live in this culture of fees. Our nation’s juveniles are paying too.

Nadia Mozaffar 

These fees and fines can be assessed on them, it can be assessed on their parents and guardians. And it really causes a lot of financial hardship for young people and their families.

Jay Ellis 

Nadia Mozaffar for is a senior attorney at juvenile law center. And she told us that there’s a special way unique to kids that pay to stay plays out in day-to-day life.

Nadia Mozaffar

A very common way that courts or other agencies charged parents when their kids are taken from home is through the child support framework that is already in place in order to get parents to pay child support for young people. And so what states and counties do is they use those same calculations, except they essentially say that the state can pay $0. And then they look at the child support calculations. And then they look at the parents income and other assets and come up with a number of how much parents should be able to pay.

Jay Ellis  28:36

Okay, okay. All right. Let me break this down. Because it’s hard to understand at first, the state takes your kid away. And then the state says, For right now, I’m their parent, and you, you have to pay me child support. Come on. I mean, could you imagine being told all of this as a parent who likely is already going through one of the worst situations of your life.

Nadia Mozaffar 

I talked to a mother in Michigan who reported going on food stamps because she couldn’t pay for the fees and fines associated with her son’s placement. Parents have been unable to pay for groceries, really a lot of basic necessities that their other kids might need because of this. And then we really have to remember that it’s not just the financial burden. It’s the financial burden during a very traumatic time where a young person is removed from their home, completely against the wishes of the parents often put in a facility where they’re subjected to so many other harmful experiences. And while the parents have to miss their child have to worry about them being so far away, have to think about how they’re doing what’s going to happen to them in the future. We’re adding the additional layer of significant financial burden, and that is just extremely harmful for both the parent and the young person that’s just trying to get over this very traumatic time in their lives. Unfortunately, when fees and fines are assessed, they are less able to pay for resources that can support their young person, that can support a child and help them through whatever concerns they’re having that are leading them to the juvenile justice system. If a young person can’t pay off their fees, and fines, often they’re on probation longer. And so that just creates more opportunities for them to do little things that get them in trouble. And then they land back in the juvenile justice system.

Jay Ellis  30:32

And this is especially bad because it flies in the face of one of the things that has always made the juvenile system in America different from the adult system, attitude. The juvenile system has always been ideally about rehabilitation, more so than the adult system, you we still want to believe that most kids will have plenty of time to turn their lives around in juvenile policies, again, ideally, reflect that.

Nadia Mozaffar 

So they have to be age appropriate, they have to be designed. So a young person recognizes what they did wrong, why they’re being punished for it, and still has some sort of understanding of how to move forward with their lives. Because the juvenile justice system is a time limited system. We designed it separately, because we understand young people need different things than adults.

Jay Ellis 

But when I hear people like Nadia, describe the juvenile system, it makes me think, well, why can’t the entire justice system be about rehabilitation? Now remember, way back at the beginning of the episode, when that idea that became pay to stay was first being talked about in Illinois, they called it holding offenders accountable for their incarceration, like it will be a new standard. But for hundreds of years before that point, we were holding offenders accountable by removing them from society for time, it’s only relatively recently conveniently tied to times when states needed money, that suddenly the incarcerated are viewed as consumers, consumers of their own incarceration.

Brittany  32:14

Because our society is capitalist, it’s not just isolation, it’s like, we also have to take everything that you’re financially worth to, because here your worth is equal to what you have financially. There’s not a restorative ethos in our culture, the best way to describe it is I think, in our society, we believe in meritocracy, we believe that people are truly getting what they deserve, when they get punished, or however much money they have is truly what they deserve their education. We like to believe that everybody’s physical output, or whatever their life situation is, is solely the product of their individual behavior. And I think because we believe that so clearly, even though the sociological research and other fields show otherwise, it has a lot more to do with the type of society you live in, than purely your individual will. Then you would predict in a society like that, that if someone is incarcerated, you say, yeah, you’re there because of everything that you have done of your own making. So you deserve nothing, as opposed to taking a look at our society and say, why do we have a society where we over incarcerate? Why do we have a society that has no safety net? Or where a society that creates situations where people would have to commit crimes of poverty? We don’t ask these questions, because we just assume that it’s all based on merit. So of course, incarcerated people don’t deserve to have any money. They don’t deserve anything.

Jay Ellis 

If our show is reaffirmed anything for me this year, is that our current attitude, you know, how we look at and think about incarceration, is not working. Thinking strictly in terms of balanced budgets has come at a huge cost to our society. In fact, both Tony messengering, Missouri and Brittany Friedman in Illinois told me that everything they’ve looked at shows, this isn’t even work and financially.

Brittany  34:17

Out of the 102 lawsuit complaints that we have for Illinois that we analyze in the lawsuits; the state was seeking to recover a little over $11 million dollars across these 102 cases. But what’s interesting is that the court only granted partial or full judgments in the amount of 1 million, right? So it’s like about 15% of their initial attachment requests. And so I think for someone who actually cares about how the state is spending taxpayers’ dollars, the first question then that comes up is that if you’re only able to recoup 15% of the 11 million. How much money did you spend trying to get that 1.7 million? Do we really just want to prove a point on the taxpayers dime prove a point that these people don’t deserve this money?

 

Katie Ryan 

I refuse to believe that as a society, we collectively would agree that human beings should live in perpetual punishment.

Jay Ellis 

I took all that I learned about pay to stay and ran it by activist Katie Ryan. And she says the fact that this backwards policy still exists, isn’t for lack of compassion.

Katie Ryan 

I think a lot of this is the absence of awareness, and that once it is out there, people will be outraged enough to demand change. And we actually can start moving towards a more restorative society where people actually have opportunity to prove themselves and to reengage in day-to-day life in a way that instills hope.

Jay Ellis 

Look, I know that seems like a tall order. So I asked her to break it down to specific goals for ending pay to stay.

Katie Ryan  36:02

We want to see in all 50 states and Washington DC laws introduced that prohibit pay to stay fees and four different classifications. So the four categories that we’re tracking and have really examined at the state level, are one, adult medical co pays to adult fees for room and board, three, juvenile medical co pays and for juvenile fees for room and board while incarcerated.

Jay Ellis 

Okay, so I’m in and I want to help and if you feel the same way, then what should we do?

Katie Ryan 

Educate your friends, family, community members, get everyone fired up about how ridiculous and barbaric this practice is, and then contact your legislators to demand that they support a bill. And they support legislation that will categorically end the practice of charging individuals who have been incarcerated after their release for their room and board and medical co pays.

Jay Ellis 

Folks, we have covered a lot this season. And look, I get it is easy to become overwhelmed by this feedback loop of bad policy where even if the crime doesn’t fit the punishment even if the science doesn’t check out, you can still be locked up until a you made your bed not lie in it. But despite all of that, Katie says that now is not the time to give up.

Katie Ryan 

But honestly makes me hopeful is that we’re moving into a society where we believe people can make mistakes. And then it is our obligation to ensure we have set people up to actually be rehabilitated and reenter society, that human beings do not deserve to be in the perpetual hamster wheel of punishment.

CREDITS

The Untold Story Criminal Injustice is a Lemonada Original. It’s produced by Matthew Simonson and Ray Solomon with production assistants by Rochelle Green, Carly Huckles and Rachel Lightner. Story editing by Matthew Simonsson. Music by Hannis Brown, sound design and mixing by Matthew Simonson, and the Untold Story is brought to you in part by the Just Trust. Our executive producers are Jessica Cordova Kramer, Stephanie Wittels Wachs, and me. Special thanks to Gabriela Kirk, April Fernandez, Josh Pickler, Joanna Weiss and everyone else who helped us with this episode. And if you’re looking for more Untold Story, check out Lemonada Premium. It’s full of all kinds of extra stuff that you won’t want to miss. I’m Jay Ellis, y’all. Thank you for listening.