You are finally leaving jail. Say goodbye to your bunkmate. Then head down to the jailer to collect your street clothes—and a bill for your stay. n

In these cash-strapped times, the Salt Lake County Sheriff’s Office is willing to try anything to cut costs—including charging inmates $40 a day for the privilege of enjoying the county’s forced hospitality. The plan has been endorsed by the Salt Lake County Council, which is under pressure to cut overall spending and to open beds in the long-mothballed Oxbow Jail to ease overcrowding.

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In theory, the so-called “pay to stay” program could be worth big money to the Salt Lake County Jail. But Sheriff Jim Winder doesn’t expect to get back more than 2 percent of the jail’s $66 million annual budget. Many inmates are poor and aren’t likely to pay their bills, he notes. And billing some could do more harm than good by providing another reason to knock over a convenience store. Still, Winder thinks he’ll make a few bucks from middle-class scofflaws he predicts will be happy to pay a little money to put their time in the slammer behind them.

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Per-day jail charges were authorized by the Utah Legislature in 2003 but have only gained popularity in the past two years. For 18 months, the Utah County Jail has been billing former inmates and sending the state’s collection agency after those who don’t pony up. This year, the jail has collected $125,140 in pay-to-stay charges of $1.2 million billed. Several smaller counties, including Cache and Weber, also have started billing.

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The creative billing programs are attracting the attention of defense attorneys and civil-liberties advocates, who question their constitutionality and ask whether it makes long-term sense to saddle inmates with debt.

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Charging lawbreakers for the cost of their own incarceration might sound like an easy call, but in practice it raises tough questions. If a client doesn’t pay, is it a parole violation that can send him back to jail? Some attorneys read the Utah law that authorizes the billing to require a court order—like restitution—instead of being imposed by jails, as is happening. Others wonder if the law gives counties a perverse incentive to keep people locked up.

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Complaints about pay-to-stay have filtered into the offices of the American Civil Liberties Union of Utah for the past six months. Executive director Karen McCreary says there are constitutional questions about charging people for time spent in a jail before they have been convicted. Americans are supposed to be innocent until proven guilty, after all. Utah’s ACLU chapter is “interested in looking at programs that charge pre-trial detainees and could well challenge such a program,” she says.

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Salt Lake County Councilman Dave Wilde has been pushing pay-to-stay for years. The county’s largest expense is the jail, he notes. “It’s just a real big burden on our county taxpayers. It just seems fair and reasonable, if people are doing things that require us to lock them up, they ought to pay for the time they stay there,” he says.

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Others on the council note some end up at the county jail because of their failure to pay court fines and worry that heaping yet another charge on inmates could create an unending cycle.

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“We have some [city] judges who use our jail as a debtors’ prison,” says Salt Lake County Councilman Randy Horiuchi, reiterating a longtime county complaint. The council is not interested in a program that “drives people further into the abyss,” but does want to explore if some budget help can come from inmates that have money to spare, Horiuchi says. He cites a businessman with a DUI, or a check forger as examples.

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Winder says his pay-to-stay program, set to begin in January, will be different. The sheriff says he will use the new fee as incentive, waiving it for inmates that enroll in life skills classes or exhibit good behavior. And billing won’t be automatic for all inmates. “The question has to be asked how [a new fee] will impact that individual and society as a whole,” he says. “If a person is there primarily because of substance abuse, they are driven to criminal activity because of that. Are we really doing the community any good by further burdening this individual with a financial obligation that will aggravate their financial situation?” Winder also is working on a way to determine whether inmates have the ability to pay before they are billed.

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That could be a key point. In 2002, the ACLU of Utah sued over a then-new law that allowed jails to charge prisoners $75 for the privilege of having their DNA extracted and put into a state database. The ACLU argued the charge violated inmates’ due-process rights, since the fee was charged regardless of ability to pay. The Legislature got around that problem in 2004 by passing another law that said if a jail charged the $75 fee, its inmates—by definition—were able to pay it.

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Salt Lake City civil-rights attorney Brian Barnard notes that the most likely reason a person lives in jail before a trial is because he or she can’t afford to make bail. Charging such people for their jail stay, in effect, becomes a poor tax. Courts have upheld such charges, Barnard says, but “that doesn’t make them right or fair.”

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For practical purposes, such bills are paid by friends and family on the outside, Barnard says. Inmates rack up charges on the graybar hotel tab. Family members send money inside to inmate “commissary” accounts thinking they are buying books or other personal items, but the money goes first to pay down the jail bill.

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“Sock it to ’em, if it’s a white-collar criminal, Martha Stewart situation,” Barnard says. “But for the ordinary down-and-out Joe who doesn’t have assets, to make him pay is excessively punitive.”