Skip to content

Pay-to-Stay as Stategraft

Gabriela Kirk-Werner, April D. Fernandes. Brittany Friedman

Wisconsin Law Review, April 2024

Gabriela Kirk

Gabriela Kirk-Werner

Stategraft refers to the practice by which “state agents transfer property from persons to the state in violation of the state’s own laws or basic human rights.” Public officials engaging in stategraft utilize these financial resources to replenish public coffers and often target segments of the population poorly positioned to fight back. Arguably, there are few populations more vulnerable to financial extraction than incarcerated individuals. Thus, a prime example of stategraft at work is that of “pay-to-stay” fees or the practice of states and localities charging incarcerated individuals for the cost of their incarceration. Legal scholars have challenged the constitutionality of these practices as violating the Due Process Clause of the Fourteenth Amendment, and the Excessive Fines Clause of the Eighth Amendment. Our research has focused primarily on states that utilize civil lawsuits to collect these fees, such as Illinois and Michigan, as particularly egregious examples of stategraft.

In this case study, we lay out how this practice extends beyond predation to reflect stategraft. While many practices of stategraft are tied to the rise of neoliberalism, pay-to-stay practices have a longer history in the United States, dating back to the 1930s and the rise of the modern prison. We draw on empirical research that we have conducted on prison pay-to-stay practices in Illinois and Michigan, as well as a survey of state statutes across all 50 states. While a small number of states including Illinois are repealing or reforming these practices, we have found at least 43 states have active statutes that allow for the collection of fees related to the costs of incarceration, referred to as “room and board.” The amount states charge is often calculated by determining the annual operating cost divided by the days that individual was incarcerated. For incarcerated individuals subject to these fees, the amounts can reach into the hundreds of thousands of dollars and their collection can represent the totality of their financial assets. In Michigan, the state is entitled to 90% of one’s assets and can seize assets normally protected from collection such as pensions and social security benefits.