How one state’s repeal of a prison ‘pay-to-stay’ law could guide national reform

Nearly every state requires incarcerated individuals to pay for room, board and basic services under so-called “pay-to-stay” laws. In 2019, Illinois became one of the first to repeal such a law — a move that prompted Brittany Friedman, assistant professor of sociology at the USC Dornsife College of Letters, Arts and Sciences, to investigate what made that repeal possible.

Why it matters: Research shows that charging inmates for their time in prison worsens economic hardship in marginalized communities, hinders rehabilitation efforts and fails to offset incarceration costs to the state. 

• As states shifted away from the tough-on-crime policies of the 1980s and ’90s, such as three-strikes laws and mandatory minimum sentences, the majority retained pay-to-stay fees as a potential source of revenue.
• After reviewing its pay-to-stay laws, Illinois lawmakers found the policy failed to generate revenue.
• The arguments that persuaded a bipartisan majority of legislators to repeal the law could inform similar efforts in other states

Key findings: The study found that the lawmakers used a pragmatic approach to reforming the state’s law.

• A combination of moral and fiscal arguments proved to be the “magic formula.” 
• Data quantifying the policy’s financial burden to the state and incarcerated individuals and their families emerged as the true bipartisan catalyst. 
• Moral appeals alone, like fairness or reducing harm to incarcerated individuals, rarely changed minds.

What she said: “Illinois proves that meaningful reform is possible when both parties come together,” said Friedman, co-founder of the Captive Money Lab. “In today’s tough-on-crime climate, it’s particularly important to use both ethical and financial reasoning, supported by data, to advance criminal justice reform.” 

The big picture: Pay-to-stay fees became law in Illinois with bipartisan support in 1981. By the mid-2010s, however, the state faced mounting criticism of expensive, tough-on-crime policies. 

• A 2015 Chicago Tribune exposé shed light on the financial and human toll of Illinois’ pay-to-stay law, sparking public outrage and prompting the introduction of a repeal bill the following year. 

• The bill passed with bipartisan support and backing from the attorney general and Department of Corrections but was vetoed by Gov. Bruce Rauner, who some say was wary of appearing soft on crime. 
• After the bill was reintroduced in 2019, it passed again with bipartisan support and was signed into law by Gov. JB Pritzker.

What they did: To understand what led a bipartisan majority of lawmakers to repeal the law, Friedman and a team of researchers analyzed Illinois state records, including legislative debates and statutes (1981–2019), and 160 lawsuits filed by the Illinois Attorney General’s office (1996–2015) against inmates and their families to recoup prison costs.

• They created the most comprehensive dataset on pay-to-stay lawsuits in the United States, detailing efforts to recover incarceration costs by targeting small inheritances or settlements.

What they found: Researchers identified key factors fueling lawmakers’ push to repeal the measure.

• Of 160 legal cases against incarcerated individuals and their families to recover prison-related debts, 78% of defendants were still incarcerated while defending themselves. Many had few assets and little savings.

• Over a decade, the state recovered less than $500,000. High legal and administrative costs, coupled with many cases being overturned on appeal, frustrated lawmakers — a key factor in the repeal, Friedman surmised.
• In many instances, litigation costs exceeded the amount collected.

Case in point: For at least one former inmate, the outcome was particularly devastating. 

• After serving 20 years in prison, Melvin Moore faced a $338,650 lawsuit for incarceration costs. He was ordered to pay the state $9,485 of his $14,000 inheritance, leaving him homeless and penniless until his death.

Going deeper: Interestingly, Friedman and her team discovered that lawmakers used the same arguments — ensuring public safety and promoting rehabilitation to reduce recidivism — to enact the law as they did to repeal it nearly 40 years later.

What’s next: Future research by Friedman and her collaborators will investigate why some states succeed in reforming punitive practices while others do not. 

A forthcoming 50-state survey will explore the political and fiscal dynamics shaping reform efforts, with comparisons to cases like Connecticut, where the state partially repealed the policy in 2022