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2024 Wis. L. Rev. Forward 1 (2024)

handle is hein.journals/wlron2024 and id is 1 raw text is: CASE STUDY PAY-TO-STAY AS STATEGRAFT GABRIELA KIRK-WERNER, APRIL D. FERNANDES & BRITTANY FRIEDMAN* 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.1 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.2 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.3 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.4 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 * Gabriela Kirk-Werner is an Assistant Professor of Sociology at the Maxwell School of Citizenship and Public Affairs, Syracuse University. April D. Fernandes is an Associate Professor of Sociology in the Department of Sociology and Anthropology at North Carolina State University. Brittany Friedman is an Assistant Professor of Sociology and Faculty Affiliate of the Equity Research Institute and Sol Price Center for Social Innovation at the University of Southern California. 1. Bernadette Atuahene, A Theory of Stategraft, 98 N.Y.U. L. Rev. 1, 3 (2023). 2. Id. 3. Lauren-Brooke Eisen, Paying for Your Time: How Charging Inmates Fees behind Bars May Violate the Excessive Fines Clause, 15 Loy. J. PUB. INT. L. 319 (2014); Katherine G. Porter, Article, A Debt to Society?: Reassessing the Constitutionality of Pay-to-Stay Programs in Ohio Jails and Prisons, 44 OHIo N.U. L. REV. 415, 419-24, 429- 35 (2018); S.P. Conboy, Note, Prison Reimbursement Statutes: The Trend Toward Requiring Inmates to Pay Their Own Way, 44 DRAKE L. REV. 325, 344-46 (1996). 4. Gabriela Kirk, April Fernandes & Brittany Friedman, Who Pays for the Welfare State? Austerity Politics and the Origin of Pay-to-Stay Fees as Revenue Generation, 63 SoCio. PERSPECTIVES 921, 921-22, 927 (2020); See Atuahene, supra note 1, at 35.

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