Paying for the Privilege

Pay-to-Stay Incarceration After the Incorporation of the Excessive Fines Clause

Pay-to-Stay incarceration, the practice of making inmates in jail pay for the price of their own imprisonment, is common across the United States. Although a great deal of public policy research has been done on the subject, less attention has been paid to the practice in the nation’s courthouses. This may well change as a result of the Supreme Court’s 2019 ruling in Timbs v. Indiana that the Eighth Amendment’s Excessive Fines Clause is incorporated as against the states. Timbs, which primarily concerned in rem forfeiture, may well mark a turning point for the way fines attendant to imprisonment are dealt with in the American legal system. This Note argues, given the broad-reaching language used in Timbs and previous Court rulings, that states must end or drastically reform their pay-to-stay incarceration schemes to bring them into compliance with both the spirit and letter of current Eighth Amendment jurisprudence.

a. J.D. Candidate, 2021, University of Illinois College of Law; B.A. in History and English, Truman State University. A special thank you to Professor Michael S. Moore for his advice and mentorship in drafting and structuring this Note. Also, I would like to thank my parents for all of the support and encouragement they have given me throughout my life and my time in law school. Finally, I must sincerely thank all of the members of the University of Illinois Law Review for their edits, revisions, and suggestions on the successive versions of the Note. I could not have finished it without out any of you.

The full text of this Note is available to download as a PDF.