Detention as Debt: Per-Diem Fees and the Case for Eighth Amendment Scrutiny

1. Introduction

$83,762. That was the bill Teresa Beatty received when she walked out of a Connecticut prison after two and a half years of incarceration for drug-related crimes [1]. At a whopping $249 per day, her debt to the state outlasted her sentence, following her out of prison and shadowing her every attempt to reintegrate into society. For Beatty, punishment did not end at release: it had only just begun. And there are hundreds of stories just like hers. Consider Shelby Hoffman, for instance, who was just eighteen years old when she was sentenced to seven years in prison for burglary in Florida. The court allowed her to participate in a ten-month youth boot camp instead, which led to her early release after only one year. In spite of this, upon walking free she still owed the state $127,750 — $50 per day for the full seven-year sentence — all because Florida calculates its pay-to-stay fees based on length of incarceration set at sentencing, rather than the actual time served [2].

In total, forty-five states authorize some form of “pay-to-stay” laws, which grant state and county governments broad discretion to impose charges on incarcerated individuals [3]. The aim of such laws — ostensibly — is to allow the state to recoup the costs of confinement, an especially pertinent issue in an era of mass incarceration where the price of housing, feeding, and supervising a growing prison population has placed enormous strain on state budgets. Charges encompass a wide range of expenses, including telephone calls and video communications, commissary fees such as feminine hygiene products and deodorant, medical copays, and toilet paper. However, sometimes prisons opt for per-diem fees instead, a far more insidious mechanism for shifting the price of imprisonment onto inmates. Unlike most “pay to stay” statutes, which charge for specific goods or services, per-diem fees accrue daily regardless of what a person actually uses or consumes, transforming the mere act of imprisonment into a compounding debt [4].

Despite their stated aim, these regimes recover only a negligible fraction of what they assess, raising serious doubts about whether cost recovery is their true function. The central question, then, is what purpose these fees actually serve and whether, in light of their exorbitant and punitive nature, they even pass constitutional muster. Courts have historically been reluctant to frame “pay-to-stay” statutes as a violation of the Eighth Amendment’s Excessive Fines Clause (EFC), with lower courts largely characterizing them as compensatory rather than punitive [5]. However, such a characterization fails to account for the punitive structure and practical consequences of per-diem regimes.

While the Supreme Court has yet to rule directly on pay-to-stay fees, three key decisions — Austin, Bajakajian, and Timbs — lay the groundwork for a challenge. In Austin v. United States (“Austin”) (1993), the Court gave the EFC its first substantive interpretation, establishing that the Clause applies to any exaction that serves, at least in part, to punish [6]. In United States v. Bajakajian (“Bajakajian”) (1998), the Court built on that foundation, holding that such fines must be proportionate to the gravity of the offense; however, it crucially left unresolved whether ability to pay is relevant and how individualized that inquiry must be [7]. Lower courts have seized upon these ambiguities to sidestep meaningful proportionality review. Most recently, in Timbs v. Indiana (“Timbs”) (2019), the Court reaffirmed the EFC’s relevance by incorporating it against the states [8]. Taken together, this trilogy of cases supplies the constitutional architecture for a meaningful challenge to per-diem fees. This paper argues that, although Bajakajian rightfully established gross disproportionality as the constitutional ceiling on punitive exactions, it left unresolved whether proportionality must account for an individual’s ability to pay and how searching the inquiry must be. Lower courts have leveraged this indeterminacy to narrow the Excessive Fines Clause’s practical reach, thereby eroding Bajakajian’s proportionality framework. Courts should close these doctrinal gaps and make clear that per-diem fees, assessed without regard to ability to pay and bearing no articulable relationship to the gravity of the underlying offense, are unconstitutional excessive fines.

This paper proceeds in six parts. Section II traces the history and structure of pay-to-stay laws, demonstrating how per-diem fees have evolved into mechanisms of punishment rather than genuine cost recovery. Section III provides an overview of the Supreme Court’s Excessive Fines Clause jurisprudence, examining Austin, Bajakajian, and Timbs to establish the doctrinal framework. Section IV applies this framework to per-diem fees, arguing, first, that they qualify as fines under Austin’s punitive-exaction threshold; second, that lower courts have systematically undermined Bajakajian’s proportionality standard; and third, that courts should resolve the ambiguities Bajakajian left open and hold that per-diem fees constitute unconstitutional excessive fines. Section V addresses and refutes the counterargument that per-diem fees are purely compensatory and therefore fall outside the EFC’s reach. Section VI concludes by considering the reentry and recidivism consequences of these fees to underscore why the correct constitutional analysis matters.

2. The Origins and Architecture of Pay-to-Stay Laws

Though pay-to-stay laws have grown in prevalence in recent years, they initially originated in the nineteenth century. In 1846, the state of Michigan became the first to authorize correctional fees, enabling counties to charge inmates for their medical care [9]. A little over a century later, in 1985, the Sheriff and County Board of Commissioners started to collect up to $60 a day from inmates of the Macomb County Jail in Michigan, seemingly a response to the rising costs of operating the prison [10]. Since then, the Macomb County Jail has ramped up these fees, billing prisoners for a wide range of services, including room and board, physicals, medication, nurse calls, and work release.

Michigan is just one of forty-five states that authorize some form of pay-to-stay statute. The widespread adoption of such laws is largely tied to the fact that the United States incarcerates at a higher rate per capita than any other nation in the world, tracing back to the surge in violent crime in the 1960s in the wake of the Civil Rights Movement [11]. After President Lyndon B. Johnson declared a “War on Crime,” incarceration rates soared, corresponding with the prison population more than doubling from 1970 to 1985 [12]. However, simultaneous federal spending cuts drained local law enforcement budgets, forcing states to reckon with skyrocketing incarceration costs with no ancillary increase in budget. Ultimately, the solution many states landed on was to expand their pay-to-stay statutes, employing room and board fees as a primary cost-recovery mechanism. By 1988, forty-eight states had some form of correctional fees on the books [13].

Yet, despite sharing the same underlying goal of cost recovery, states have taken vastly different approaches to seeking reimbursement. McClure (2023) provides a comprehensive breakdown of the wide variety of pay-to-stay statutes across the country, categorizing each state’s approach based on the type of fees imposed and the circumstances under which they are applied. Several states place significant constraints on when and how fees can be imposed. For example, Missouri and Virginia have instituted caps on the daily fees they can seek from inmates, with Virginia restricting charges to just $3 per day [14]. Other states, specifically Colorado, Montana, Washington, Tennessee, Wyoming, Louisiana, Florida, South Dakota, Minnesota, and Michigan, only allow prisons to charge inmates who have been “found to have the ability to pay” [15]. However, McClure (2023) argues that “it is unclear how these state courts are able to establish a defendant’s ability to pay because judges rarely hold hearings to determine indigency,” underscoring how intended safeguards for low-income offenders may actually be elusive in practice [16].

In contrast, there are numerous states that place no limits on pay-to-stay, enabling it in all circumstances, regardless of ability to pay or participation in penal labor. For instance, both Arkansas and Wisconsin have reimbursement statutes for all prisoners, which require that “they reimburse the jail for any costs stemming from their confinement” [17]. These sweeping laws give prisons considerable discretion, allowing them to recoup virtually any expense tied to an inmate’s stay. Nevertheless, a growing number of states have pushed to repeal such laws altogether, with California, Hawaii, New Hampshire, Illinois, and Maine all having abolished their pay-to-stay statutes in recent years [18]. Despite these encouraging steps toward reform, the breadth of existing pay-to-stay laws remains vast, entrapping countless individuals like Teresa Beatty and Shelby Hoffman in mounting debt long after they have served their time.

3. The Excessive Fines Clause: From Obscurity to Constitutional Bedrock

At a mere sixteen words, the Eighth Amendment is the shortest in the U.S. Constitution: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” [19]. Despite its brevity, the Amendment contains three distinct clauses, each serving a separate, yet equally important, constitutional purpose. However, for most of American legal history, the Excessive Fines Clause remained in obscurity, largely overshadowed by its more frequently litigated textual neighbors. It was not until the 1990s that the Supreme Court finally gave the Clause its first substantive interpretation. In Austin v. United States (1993), the Supreme Court considered whether the Excessive Fines Clause applied to civil asset forfeiture proceedings brought by the federal government [20]. The case arose after Richard Austin, a South Dakota resident, sold two grams of cocaine to an undercover police officer out of his home and auto body shop. Following his conviction, the federal government pushed to forfeit both properties, which Austin argued was grossly disproportionate to his offense. Thus, the central question before the Court was whether such civil forfeitures constituted “fines” within the meaning of the Eighth Amendment, and, accordingly, whether the Excessive Fines Clause applied to a statutory in rem forfeiture of property. Writing for the majority, Justice Harry A. Blackmun held that the Eighth Amendment did indeed apply because the forfeiture was a punishment for an offense and did not only serve a remedial purpose. In this way, Austin established the threshold inquiry that the EFC applies to exactions that serve, at least in part, to punish. However, by declining to articulate a standard for when a forfeiture becomes constitutionally excessive, it left that question to the lower courts, producing a doctrinal inconsistency that would continue to define Eighth Amendment jurisprudence.

Although Austin presented a watershed moment for the Excessive Fines Clause, it left the critical question of what standard courts should apply in determining whether a forfeiture is constitutionally excessive largely unanswered. The Supreme Court took up that question five years later in United States v. Bajakajian (1998), the first case in which the Court struck down a criminal fine as violating the Eighth Amendment [21]. There, the government sought to forfeit $357,144 in cash that Hosep Bajakajian had attempted to carry out of the country without reporting it, despite being required to by federal law. The Court, in a five-to-four decision authored by Justice Clarence Thomas, held that the government’s ability to extract fines is limited by the Excessive Fines Clause. Thomas ruled that a “punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportionate to the gravity of the offense that it is designed to punish,” establishing the proportionality standard that would govern the Excessive Fines Clause doctrinal analysis for decades to come [22]. While Bajakajian seemed to institute a uniform standard, it failed to resolve several key questions necessary for its consistent application, chief among them whether ability to pay is relevant to the excessiveness inquiry, what counts as cognizable harm, and how individualized the proportionality analysis must be.

Finally, in 2019, the Supreme Court officially declared that the Eighth Amendment was applicable to the states through the Fourteenth Amendment’s Due Process Clause. In Timbs v. Indiana (2019), the Court considered whether Indiana had violated the Eighth Amendment when it sought to forfeit Tyson Timbs’s Land Rover SUV, valued at roughly $42,000, following his conviction for selling heroin — notably, a crime carrying a maximum fine of only $10,000 [23]. Writing for an eight-justice majority, Justice Ruth Bader Ginsburg found that the Excessive Fines Clause is incorporated against the states, reasoning that it “traces its venerable lineage back to at least 1215… when Magna Carta … required that economic sanctions ‘be proportioned to the wrong’” [24]. Moreover, Ginsburg emphasized, protection against excessive fines is “fundamental to our scheme of ordered liberty” with “dee[p] roots in [our] history and tradition” [25]. Thus, the Court ruled that Indiana’s attempted forfeiture of Timbs’s Land Rover, worth more than four times the maximum fine permissible for his offense, was precisely the kind of grossly disproportionate punishment the Excessive Fines Clause was designed to prevent. In this way, the Court’s decision in Timbs carried profound practical implications. Prior to the ruling, states and localities faced no constitutional ceiling on the fines and forfeitures they could impose, leaving individuals vulnerable to punitive government seizures with little recourse. By incorporating the Excessive Fines Clause against the states, the Court extended to all Americans, regardless of in which state they resided, the same constitutional protection against grossly disproportionate forfeitures.

Taken together, Austin, Bajakajian, and Timbs comprise the constitutional bedrock of modern Excessive Fines Clause jurisprudence, collectively confirming that the Clause applies to civil and criminal forfeitures alike, that such forfeitures must be proportional to the gravity of the underlying offense, and that these protections bind every level of American government. However, despite this doctrinal progress, significant questions remain. Namely, Bajakajian’s lack of a definite proportionality test has enabled lower courts to apply the gross disproportionality standard inconsistently, producing a fractured and unpredictable body of case law in which virtually identical forfeitures can yield vastly different constitutional outcomes depending on the jurisdiction in which they are challenged.

4. Per-Diem Fees as Unconstitutional Excessive Fines: A Doctrinal Analysis

The threshold inquiry in any Excessive Fines Clause challenge is whether the exaction at issue is punitive rather than merely remedial. In Austin, the Supreme Court made clear that the Excessive Fines Clause reaches even in rem civil forfeiture — proceedings brought against property rather than persons — when they serve, at least in part, as punishment for an offense. If the EFC extends that far, per-diem fees, which are assessed directly against convicted individuals as a consequence of their imprisonment, present an even stronger case for coverage. Unlike the in rem forfeiture in Austin, which required the Court to look past the civil label to find a punitive purpose, per-diem fees require no such analytical work: they are imposed on persons, not property, and they accrue as a direct result of criminal conviction. Nor are they tethered to what any individual inmate actually consumes or costs the state; they accumulate automatically, by the day, regardless of actual use. That mechanical, offense-triggered accumulation is the hallmark of punishment, not reimbursement.

Moreover, the negligible recovery rates that accompany most per-diem programs further undermine any genuine cost-recovery rationale. State and county collection efforts recover only a small fraction of assessed fees, typically around 10 to 15 percent [26]. For instance, in Eaton County, Michigan, over one million dollars in pay-to-stay fees were estimated, but only five percent of the projected total was actually collected [27]. If the purpose were truly remedial, one would expect states to design collection mechanisms capable of actually collecting, but they do not. Thus, once the compensatory veneer is stripped away, it becomes apparent that per-diem fees are exactions that serve, at least in part, to punish, which, under Austin, is sufficient to bring them within the Excessive Fines Clause’s reach.

Although one might argue that inmates can simply work to offset their debt, and, thus, such fees do not constitute an excessive fine, the wages they earn are far too meager to make any appreciable dent in their debt. Average hourly earnings for penal labor range from $0.14 to $0.63, rendering repayment of accumulated fees practically unattainable [28]. In Teresa Beatty’s case, even if she had worked full-time for the entire duration of her sentence, earning up to $1 per hour under Connecticut’s wage schedule, she would have only earned approximately $5,200 over the course of 5200 hours — a trivial sum compared to her $83,762 debt [29]. Sustained labor over the course of incarceration does little to reduce the financial burdens imposed upon release, further exposing the punitive reality that the compensatory label obscures.

Having established that per-diem fees constitute fines within the meaning of the Excessive Fines Clause, then, the question becomes whether they satisfy Bajakajian’s proportionality requirement. In Bajakajian, the Supreme Court held that a punitive exaction violates the Clause if it is grossly disproportionate to the gravity of the offense it is designed to punish — a standard that, on its face, should supply constitutional protection against fees that bear no articulable relationship to the crimes for which people are imprisoned. Lower courts, however, have systematically drained that standard of its force. One such case is Tillman v. Lebanon County Correctional Facility, 221 F.3d 410 (3d Cir. 2000), a seminal decision in pay-to-stay litigation and the leading federal appellate case to have directly addressed per-diem fees under the EFC [30]. Leonard Tillman, a former prisoner in an Ohio county jail, brought the suit after he was charged a fee of $10 per day for housing costs stemming from two periods of incarceration in a county facility for state parole violations. The Third Circuit upheld the fee by comparing Tillman’s total accumulated debt of $4,000 to the statutory maximum fine for his underlying offense, concluding that because the debt amounted to less than one-twentieth of that ceiling, the fee could not be grossly disproportionate as a matter of law. Yet, the court said nothing about Tillman’s ability to pay and explicitly refused to speculate about cases involving higher fees or less serious offenses — which are precisely the cases, like Teresa Beatty’s and Shelby Hoffman’s, in which the constitutional question becomes most pertinent.

Notably, the Tillman court acknowledged the possibility that fees could be considered fines under the Excessive Fines Clause, citing Austin’s test for whether an exaction “can only be explained as serving in part to punish” [31]. But rather than applying that test rigorously, the court accepted the prison’s rehabilitative label at face value — noting that “the undisputed record indicates that the program was imposed for rehabilitative and not punitive purposes” — and declined to resolve the fines question on that basis [32]. However, at its core, that reasoning misreads Austin. The punitive-exaction inquiry does not turn on a program’s stated purpose; it hinges on whether the exaction can only be explained as serving, at least in part, to punish. Per-diem fees cannot satisfy that standard. They accrue automatically by the day, bear no rational relationship to the actual cost of housing that individual, and are imposed regardless of the gravity of the underlying offense, all of which are difficult to justify on purely compensatory grounds, regardless of the program’s stated purpose.

The more consequential error in Tillman, however, was methodological. In applying the doctrinal standard of Bajakajian, the court treated the statutory maximum fine as the operative benchmark for proportionality, reasoning that because Tillman’s $4,000 debt was less than one-twentieth of the $100,000 ceiling, it could not be grossly disproportionate as a matter of law. But Bajakajian does not support that approach; in footnote 14, the Court acknowledged that the statutory maximum is relevant evidence of offense gravity, but only insofar as to show how far a defendant’s culpability falls short of the worst-case offender the statute was designed to punish [33]. In Bajakajian, that distance supported a finding of gross disproportionality, not a finding of constitutionality. Tillman drew precisely the opposite conclusion from the same logic, treating the gap between Tillman’s debt and the statutory maximum as proof that the fee was not excessive, thereby sidestepping any analysis of culpability.

Correctly applied, Bajakajian’s proportionality framework compels the conclusion that per-diem fees are unconstitutional. The central inquiry is whether the exaction bears an articulable relationship to the gravity of the offense, and per-diem fees, by design, have none. Whether a person is imprisoned for a minor drug offense or a violent felony, the daily fee accrues at the same rate. Whether they serve thirty days or three years, the debt compounds at the same pace. The fee is a function of time, not culpability — and a fine untethered from culpability is precisely what Bajakajian forbids. The cases of Teresa Beatty and Shelby Hoffman illustrate the point starkly. Beatty owed $83,762 upon release from a Connecticut prison after two and a half years of incarceration for drug-related crimes, not because her offenses were serious enough to warrant a six-figure financial penalty, but simply because the state charged $249 per day for the duration of her sentence. Hoffman’s situation is even more troubling: sentenced to seven years for burglary in Florida but released after only one year following completion of a youth boot camp program, she nonetheless owed $127,750, as if she had served her full time. In neither case does the debt bear any discernible relationship to the gravity of the underlying offense. It reflects only the passage of time. Under Bajakajian, that is not proportionality review: it is the absence of it.

However, Tillman is not an outlier; circuit courts have at practically every turn adopted narrowing interpretations of Bajakajian, producing a body of case law that is both inconsistent and inaccurate. In United States v. 817 N.E. 29th Drive, 175 F.3d 1304 (11th Cir. 1999), for instance, the Eleventh Circuit held that “excessiveness is determined in relation to the characteristics of the offense, not in relation to the characteristics of the offender,” marking a categorical refusal to conduct the individualized culpability inquiry that Bajakajian requires, and one that forecloses any consideration of ability to pay [34]. Even more troubling still, the Sixth and Fifth Circuits have gone so far as to hold that a fine cannot violate the Excessive Fines Clause so long as it does not exceed the statutory maximum. In United States v. Hill, 167 F.3d 1055, 1072–73 (6th Cir. 1999), the Sixth Circuit held that “there is no constitutional violation when the forfeiture does not exceed the maximum fine allowed by the statute” [35]. Similarly, in Newell Recycling Co. v. U.S. Envtl. Prot. Agency, 231 F.3d 204, 210 (5th Cir. 2000), the Fifth Circuit ruled that “if the fine does not exceed the limits prescribed by the statute authorizing it, the fine does not violate the Eighth Amendment” [36]. Collectively, these three cases speak to a broader pattern of how, across circuits, courts have circumvented Bajakajian’s proportionality mandate, whether by refusing to consider the individual characteristics of the offender or by treating the statutory maximum as a constitutional safe harbor. In doing so, they have systematically hollowed out the very framework the Supreme Court put in place.

However, the lower courts’ narrowing of Bajakajian does not bear full responsibility for this doctrinal failure, as the Bajakajian decision itself left open several critical ambiguities that created the leeway for such erosion. The open question left most conspicuously unresolved — whether ability to pay is relevant to the excessiveness inquiry — only reinforces the constitutional infirmity. In Bajakajian’s footnote 15, the Court expressly declined to take any position on whether a defendant’s income and wealth are relevant considerations in judging the excessiveness of a fine [37]. However, the historical record Timbs canvassed suggests that they are: the Magna Carta required that economic sanctions not be so large as to deprive an offender of his livelihood, and Blackstone confirmed that no man should have a larger amercement imposed upon him than his circumstances or personal estate would bear [38].

Nonetheless, per-diem fees are assessed with no inquiry whatsoever into whether a person can pay them. They are saddled on the indigent and the affluent alike, at identical daily rates, with identical collection mechanisms. For a person leaving prison with no savings, no employment, and a felony record that forecloses most job opportunities, an $83,762 debt transcends just a financial inconvenience, exacting an insuperable burden that threatens the basic necessities of housing, transportation, and food that make reintegration possible. A fine of that magnitude, imposed without any consideration of ability to pay, cannot survive serious proportionality review.

Equally unresolved is how individualized the proportionality inquiry must be, particularly whether courts are required to look beyond the bare elements of the offense to the defendant’s specific circumstances, culpability, and financial situation. Per-diem fees expose the stakes of that question acutely: a fee imposed at the same daily rate regardless of the nature of the offense, the defendant’s role in it, or their capacity to pay is the antithesis of individualized proportionality review. Courts should resolve Bajakajian’s silence on both questions by holding that ability to pay is not just relevant but necessary to any meaningful excessiveness inquiry, and that the proportionality analysis must account for the specific circumstances of the defendant, not just the characteristics of the offense. Per-diem fees, assessed categorically without regard to a defendant’s financial circumstances and bearing no articulable relationship to the gravity of the underlying offense, are unconstitutional on either ground.

5. The Compensatory Defense and Its Limits

States defending per-diem programs often contend that such fees are designed to recover costs, not to punish, and that, as purely compensatory exactions, they fall outside the bounds of the Excessive Fines Clause entirely. Such an argument has superficial appeal: incarceration is expensive — the United States spends over $400 billion annually on mass incarceration — and assessing fees against those who create those costs seems, at first glance, like a pragmatic solution [39]. After all, the Constitution does not prohibit states from seeking reimbursement for the costs of confinement, only excessive fines. The question, then, is not whether cost recovery is a legitimate governmental interest, but whether per-diem fees, as currently structured, are a permissible means of pursuing it.

In practice, they are not. A truly compensatory program would be designed to actually collect, yet per-diem regimes consistently fail to do so. State and county collection efforts recover only a minuscule fraction of assessed fees, typically between ten and fifteen percent. Moreover, because many low-income formerly incarcerated individuals cannot afford to pay their debt, billions of dollars in fines and fees go uncollected every year. A report issued by the Fines and Fees Justice Center in 2021 found that more than $27.6 billion in fines and fees remains uncollected nationwide [40]. Similarly, a 2019 research report authored by the Brennan Center illustrated that, from 2012 to 2018, the states of Texas, Florida, and New Mexico amassed a total of nearly $1.9 billion in uncollected debt [41]. Furthermore, the opacity surrounding these programs reinforces the disconnect between their stated justification and actual function. Many jurisdictions do not systematically track the full costs of imposing and collecting fees, making it difficult to assess whether they function as meaningful sources of revenue. Such systemic shortcomings undermine any claim that per-diem fees are designed to recoup costs and instead suggest that the compensatory label functions as nothing more than a façade to evade proper Eighth Amendment scrutiny.

6. Conclusion: Pay-to-Stay Fees as a Barrier to Reentry and Rehabilitation

The Eighth Amendment’s Excessive Fines Clause was designed, at its core, to prevent the imposition of financial penalties so severe that they destroy a person’s livelihood, a principle rooted in the Magna Carta’s demand that economic sanctions be proportioned to the wrong, and confirmed by Blackstone’s insistence that no man be subjected to a larger amercement than his personal estate could bear. Per-diem fees are fundamentally inconsistent with this mandate. Teresa Beatty and Shelby Hoffman left prison with what functioned effectively as a second sentence: debts that would shadow their every attempt to rebuild their lives and reintegrate into society. And alarmingly, they are not outliers. Across forty-five states, formerly incarcerated individuals walk out of prison burdened by per-diem fees that can run into the tens or hundreds of thousands.

These debts do not dissipate at the prison gate. They follow formerly incarcerated individuals into the job market, where the label of a felon already forecloses most opportunities. The unemployment rate for individuals with criminal records consistently hovers around 30% [42], a particularly striking figure that exceeds the total U.S. unemployment rate during any historical period, including the Great Depression [43]. The abysmally low wages earned by formerly incarcerated individuals further exacerbate this burden: on average, they earn 52 percent less than similarly situated individuals who were never imprisoned, rendering repayment of staggering levels of debt largely illusory [44].

Beyond the labor force, such onerous financial burdens manifest as an additional and often more insurmountable obstacle in the housing market, as landlords routinely reject applicants with criminal records. A survey conducted in 2007 found that 66 percent of private landlords do not accept rental applications from people with criminal histories, and, likewise, a multi-state study noted that 79 percent of formerly incarcerated people report being denied housing due to a criminal conviction [45]. With a six-figure debt on top of that, the sheer act of finding housing becomes functionally impossible. Landlords routinely conduct both criminal background checks and credit checks on prospective tenants, and formerly incarcerated individuals, who already face blanket rejection based on criminal history, must also contend with debt that signals financial instability few landlords are willing to overlook [46]. Without stable housing, the cascading consequences are severe: employment opportunities narrow further, access to social services becomes more difficult, and the risk of homelessness rises sharply. Research overwhelmingly confirms that housing instability is one of the strongest predictors of reincarceration, meaning that per-diem fees, by making stable housing harder to obtain, push formerly incarcerated people directly toward it [47].

In this way, per-diem fees do not merely follow formerly incarcerated individuals out of prison; they ensure they never truly leave, entrapping them in an incessant cycle of debt, instability, and recidivism. While framed as financial obligations owed to the state, in practice they perpetuate punishment indefinitely beyond the formal sentence. When courts accept the compensatory label without scrutiny, decline to conduct individualized proportionality review, and treat the statutory maximum as a constitutional safe harbor, they do not just commit a doctrinal failure. They leave Teresa Beatty, Shelby Hoffman, and thousands like them without recourse, saddled with obligations they cannot meet in a system that has already taken years of their lives. The Eighth Amendment’s Excessive Fines Clause was conceived to ensure that punishment remains proportionate to the offense. Courts must honor that design, closing the ambiguities Bajakajian left open and making sure that per-diem fees, exacted without regard to culpability or capacity to pay, have no place in a constitutional system of justice. Punishment must end when the sentence does, and for as long as per-diem fees are constitutionally permissible, that future will never be possible.

Footnotes:
[1] NBC Connecticut, “At $249 Per Day, Prison Stays Leave Ex-Inmates Deep in Debt,” August 27, 2022, https://www.nbcconnecticut.com/news/local/at-249-per-day-prison-stays-leave-ex-inmates-deep-in-debt/2860653.
[2] Yahoo News, “State Law Charging Inmates for Prison Cells Being Applied Differently from County to County,” Yahoo, June 28, 2024, https://www.yahoo.com/news/state-law-charging-inmates-prison-005232314.html.
[3] Brittany Deitch, “Estate to State: Pay-to-Stay Statutes and the Problematic Seizure of Inherited Property.” University of Colorado Law Review 95, no. 4 (2024): 841-842.
[4] Deitch, “Estate to State,” 856.
[5] Lauren-Brooke Eisen, “America’s Dystopian Incarceration System of Pay to Stay Behind Bars,” Brennan Center for Justice, April 19, 2023, https://www.brennancenter.org/our-work/analysis-opinion/americas-dystopian-incarceration-system-pay-stay-behind-bars.
[6] Austin v. United States, 509 U.S. 602 (1993).
[7] United States v. Bajakajian, 524 U.S. 321 (1998).
[8] Timbs v. Indiana, 586 U.S. (2019).
[9] McClure, Sarah. "Get out of,” 222.
[10] Eisen, “America’s Dystopian Incarceration System.”
[11] Deitch, “Estate to State,” 842-843; McClure, Sarah. "Get out of,” 223.
[12] McClure, Sarah. "Get out of,” 223.
[13] Eisen, “America’s Dystopian Incarceration System.”
[14] McClure, Sarah. "Get out of,” 232.
[15] McClure, Sarah. "Get out of,” 233.
[16] Ibid.
[17] McClure, Sarah. "Get out of,” 236.
[18] McClure, Sarah. "Get out of,” 225.
[19] U.S. Const. amend. VIII.
[20] Austin v. United States, 509 U.S. 602 (1993).
[21] United States v. Bajakajian, 524 U.S. 321 (1998)
[22] United States v. Bajakajian, 524 U.S. 321, 322 (1998)
[23] Timbs v. Indiana, 586 U.S. (2019).
[24] Timbs v. Indiana, 586 U.S. 4 (2019).
[25] Timbs v. Indiana, 586 U.S. 2 (2019).
[26] Sarah McClure, “Get out of Jail Free? A Survey of Pay-to-Stay Statutes through a Constitutional Lens.” Estate Planning & Community Property Law Journal 16, no. 1 (2023): 224.
[27] Ibid.
[28] Wendy Sawyer, “How Much Do Incarcerated People Earn in Each State?,” Prison Policy Initiative, April 10, 2017, https://www.prisonpolicy.org/blog/2017/04/10/wages/.
[29] Ibid.
[30] Leonard G. Tillman v. Lebanon County Correctional Facility, 221 F.3d 410 (3d Cir. 2000).
[31] Tillman v. Lebanon County Correctional Facility, 221 F.3d at 410.
[32] Tillman v. Lebanon County Correctional Facility, 221 F.3d at 410.
[33] United States v. Bajakajian, 524 U.S. 321 (1998)
[34] United States v. 817 N.E. 29th Drive, 175 F.3d 1304 (11th Cir. 1999)
[35] United States v. Hill, 167 F.3d 1055, 1072–73 (6th Cir. 1999)
[36] Newell Recycling Co. v. U.S. Envtl. Prot. Agency, 231 F.3d 204, 210 (5th Cir. 2000)
[37] United States v. Bajakajian, 524 U.S. 321 (1998)
[38] Timbs v. Indiana, 586 U.S. (2019).
[39] Prison Policy Initiative, “Economics of Incarceration,” accessed May 2, 2026, https://www.prisonpolicy.org/research/economics_of_incarceration/.
[40] Briana Hammons, “Tip of the Iceberg: How Much Criminal Justice Debt Does the U.S. Really Have?,” Fines and Fees Justice Center, April 28, 2021, https://finesandfeesjusticecenter.org/wp-content/uploads/2021/04/Tip-of-the-Iceberg_Criminal_Justice_Debt_BH1.pdf.
[41] Matthew Menendez et al., “The Steep Costs of Criminal Justice Fees and Fines,” Brennan Center for Justice, November 21, 2019, https://www.brennancenter.org/our-work/research-reports/steep-costs-criminal-justice-fees-and-fines.
[42] Stephanie Ferguson Melhorn, Makinizi Hoover, and Isabella Lucy, “The Workforce Impact of Second Chance Hiring,” U.S. Chamber of Commerce, September 18, 2024, https://www.uschamber.com/workforce/data-deep-dive-the-workforce-impact-of-second-chance-hiring-3.
[43] Lucius Couloute and Daniel Kopf, “Out of Prison & Out of Work,” Prison Policy Initiative, July 2018, https://www.prisonpolicy.org/reports/outofwork.htm.
[44] Terry-Ann Craigie et al., “Conviction, Imprisonment, and Lost Earnings: How Involvement with the Criminal Justice System Deepens Inequality,” Brennan Center for Justice, March 21, 2024, https://www.brennancenter.org/our-work/research-reports/conviction-imprisonment-and-lost-earnings-how-involvement-criminal.
[45] Sandhya Kajeepeta, “Barred from Housing: The Discriminatory Impacts of Criminal History Restrictions in Tenant Screening,” Thurgood Marshall Institute at LDF, April 2025, https://tminstituteldf.org/criminal-background-checks-housing-barrier/#part2; Jaboa Lake, “Preventing and Removing Barriers to Housing Security for People With Criminal Convictions,” Center for American Progress, April 14, 2021, https://www.americanprogress.org/article/preventing-removing-barriers-housing-security-people-criminal-convictions/.
[46] Ibid.
[47] Leah A. Jacobs and Aaron Gottlieb, “The Effect of Housing Circumstances on Recidivism: Evidence From a Sample of People on Probation in San Francisco,” Criminal Justice and Behavior 47, no. 9 (2020): 1097–1115, https://pmc.ncbi.nlm.nih.gov/articles/PMC8496894/.