Michigan voters can shape the future of prison pay-to-stay

In November, Michigan voters face a choice that most will not realize they are making. The state elects a new attorney general on Nov. 3, and with the incumbent, Dana Nessel, term-limited, the seat is open. Whoever wins inherits a little-known power: the authority to sue people incarcerated in Michigan prisons for the per diem cost of their own incarceration. Pay-to-stay, as the practice is called, remains one of the least visible and yet most punishing features of American mass incarceration. 

To render the practice legible, Captive Money Lab, a public-facing research lab with university affiliations, has researched the practice for a decade. By the lab’s latest count, 45 states have active prison pay-to-stay statutes.¹

In June, the lab released preliminary results from a national survey of pay-to-stay at the prison level, an interactive map known as “The State of Pay-to-Stay.” This national map documents for the first time the statutes and recoupment mechanisms that make prison pay-to-stay possible across the country.  

The United States has some of the highest rates of mass incarceration in the world, in which structured cycles of criminalization, social determinants, and racial disparities affect marginalized communities. Only 13% of the U.S. population is Black, yet they account for 37% of those in prison or jail across the country, and in 2022, 49% of incarcerated people in Michigan were Black. While Black Americans have the highest rate of incarceration nationally, Native Americans also have extremely high and disproportionate rates compared with their share of the population and are overrepresented in prison in certain states.  

Michigan stands out as a nationwide leader in terms of punitiveness. First, unlike states that collect only from prison wages, Michigan uses civil court to target the personal assets and estates of incarcerated people, which are often jointly held with spouses, dependents, and extended family, effectively foreclosing any opportunity for families to hold onto intergenerational wealth. Other states have already recognized this significant consequence. For instance, when Connecticut became one of only a few states to pass a partial repeal of state-level pay-to-stay recoupment statutes in May 2022, lawmakers sponsoring House Bill 5390 circulated the following statement as their reasoning for bringing the bill to a vote.² This bill seeks to discontinue the state practice of collecting pay-to-stay fees from incarcerated individuals following their release. Pay-to-stay fees create an additional barrier for those attempting to reenter society following a prison sentence and have been found to disproportionately affect Black and Latino residents, who represent one third of the general population and approximately 71% of the prison population in Connecticut. These fees also have a detrimental effect on intergenerational wealth and harm family members who have loved ones that have served their prison sentence.

Second, Michigan’s pay-to-stay law, the State Correctional Facility Reimbursement Act, allows the attorney general to pursue 90% of the incarcerated defendant’s assets and estate. And finally, Michigan sues incarcerated people for hefty sums that can exceed $1 million, with the highest single pay-to-stay lawsuit in our sample seeking $5,437,150. 

The vast majority of those incarcerated do not know the statute exists and only find out when the surveillance of Michigan prisons discovers that an incarcerated person has the potential to possess any money worth taking, triggering a civil lawsuit by the Michigan attorney general. In other words, our dataset of 1,450 defendants sued in Michigan prison pay-to-stay lawsuits reveals that monies that place incarcerated people at risk for suit can range from employee pensions, retirement funds such as IRAs, and bank accounts to homes, cars, insurance payouts, and public benefits.  

Deposits in “inmate trust funds,” or bank accounts run by Michigan’s Department of Corrections, which incarcerated people must use for commissary and other purchases, in addition to personal or business mail, are some of the biggest sources of information for state officials monitoring the potential assets of the state’s incarcerated population. For instance, a woman serving a lengthy sentence in a Michigan prison was sued by Michigan’s attorney general for a projected “cost of care” of more than $2 million, with the lawsuit claiming the state was owed a portion of her General Motors pension and the contents of a small checking account.³

The court sided with the attorney general, froze her pension, and ordered a monthly payment from it, made payable to the “State of Michigan” and mailed to the attorney general’s office in Detroit, Michigan, instructing the incarcerated defendant to include her prison number and name on the check.  

Previous research has shown that Michigan has one of, if not the, oldest pay-to-stay statutes in the country, originating when the state passed its first pay-to-stay law in 1935 during the depths of the Great Depression, while the state was reeling from fiscal deficits and saddled with the ongoing costs of its new and vast State Prison of Southern Michigan—completed in 1934. The state of Illinois explicitly mentioned Michigan’s 1935 law as a model to copy in 1981, when it was also facing severe fiscal crises and looked at pay-to-stay as an austerity measure and punitive effort to teach the incarcerated personal responsibility.

During the recession of the early 1980s, as auto plants shuttered and unemployment soared to the highest of any state, Michigan expanded its original law and explicitly targeted pension benefits, annuities, and retirement benefits, codifying that the attorney general could pursue any other source of money and claim up to 90% of the incarcerated person’s assets and estate. A 1996 amendment sought to expand it further to bill incarcerated people for any college courses they took while confined. Yet each expansion of the law, while sold as fiscally necessary, did not bring in the revenue that was promised. In fiscal year 1993 to 94, the Michigan attorney general collected only $479,988 against a corrections budget of roughly $659 million. Mass incarceration in Michigan continued to cost more, but pay-to-stay did not balance the exploding budgets.  

Beginning this fall, Captive Money Lab’s research team will seek to discover the answers to important questions such as the health effects of pay-to-stay and the impact of the practice’s recoupment procedures on family ties and relationships, in addition to questions around wealth retainment, bankruptcy, reentry, and more, using in-depth interviews with 100 directly impacted people and their families across Michigan, Florida, Connecticut, Nevada, and Arizona. This institutional review board-approved study includes faculty and doctoral students from Syracuse University, North Carolina State University, and the University of Southern California. The findings will inform policy discussions and the development of potential reforms. 

The fact that the Michigan attorney general holds the power to enforce state statutes is what turns pay-to-stay into a ballot question. The office is directly elected in 43 states, including Michigan, meaning the overwhelming majority of the nation’s voters choose who wields this power. In Michigan’s upcoming race for an open seat, both nominees are sitting county prosecutors—Democrat Eli Savit of Washtenaw County and Republican Doug Lloyd of Eaton County. The winner would have the authority to keep suing incarcerated people for the cost of their own cells, shelve the practice, or press the legislature to repeal it outright.  

Neighboring Illinois successfully repealed its prison pay-to-stay statute in 2019 with Gov. J.B. Pritzker signing it, triumphing after an unsuccessful attempt in 2016, when Gov. Bruce Rauner vetoed an almost identical bill. Illinois’ successful repeal stands out because the Attorney General Lisa Madigan’s public questioning of prison pay-to-stay played a major role in swaying both public opinion and Illinois lawmakers. Madigan told the Chicago Tribune, “The Legislature should revisit whether this law is appropriate. These recoveries may raise roadblocks to former inmates trying to lead successful lives out of prison. As a result, the judgments that must be made in attempting to recover incarceration costs raise moral questions that legislators need to address.”  

Our research on Illinois’ repeal effort shows that lawmakers were successful in capitalizing on the political momentum of Madigan’s public comments. The Chicago Tribune’s investigative reporting used moral and fiscal arguments to unite Illinois lawmakers around a bipartisan agreement that pay-to-stay cost taxpayers money, failed to recoup corrections costs, and hurt Illinoisians’ chances of reentering society after prison.  

Michigan’s attorney general still holds pay-to-stay’s enforcement power as Illinois’ once did. A new Michigan attorney general could deprioritize these suits without waiting for the legislature to fully repeal the practice. From there, the attorney general could support Michigan lawmakers in following Illinois’ successful repeal playbook of pairing the moral case with fiscal proof of pay-to-stay’s wasteful inefficiency. Two sitting county prosecutors, who already exercise discretion daily, are vying for attorney general in the upcoming election. The winner will have the power to curtail enforcement of pay-to-stay and stand at the forefront of a bipartisan repeal campaign. Precedent shows this approach can work.