People in prison have no choice but to use the banking systems that prisons operate. Rather than use an outside bank account or have family or friends meet their daily needs directly, people in prison must rely on what are often called “inmate trust accounts” to pay for goods and services within the prisons. These accounts have long been vulnerable to asset seizure by the prisons that run them. The money in these accounts comes from prison wages and deposits by friends and family members of incarcerated people. Prisons take this money in a variety of ways: they impose fees for a wide variety of services (like making a phone call, receiving mail, participating in educational programming or treatment, or even using the banking system itself), sell commissary items at highly marked up prices, exact fines as punishment for disciplinary infractions, divert money at the behest of courts and other criminal system agencies to pay other fines and fees, and collect interest from the pooled accounts. Sometimes prisons seize large portions of an incarcerated person’s trust account balance under the rationale that the individual owes the prison system for their daily room and board. Sometimes the money simply disappears as a result of embezzlement or error.

In 2021, the problems inherent in prison management of individuals’ money became apparent when COVID-19 stimulus checks intended for incarcerated people began disappearing from their accounts. Prisons and jails offered a variety of rationales, and some individuals raised legal challenges, but few questioned the basic authority of prisons to disburse money to themselves and other government entities, or the legitimacy of the prison banking system overall.

Prisons have a significant conflict of interest in managing these banking systems, and the accounts are subjected to little transparency and oversight. Statutory and administrative regulation of these accounts is minimal, compared to the tightly controlled regulation of money management in the free world. Given the direct access that prisons have to these accounts and the ease with which they can seize funds, inmate trust accounts are a site of substantial wealth extraction, often with the blessing and penological deference of the courts.

This Article examines the history and legal status of inmate trust accounts and the vulnerability of these funds. The Article places prison banking within the broader landscape of racialized wealth extraction through the criminal system and challenges the assumption that prisons and jails—subject to little regulation despite apparent conflicts of interest—should be permitted to operate a low-transparency banking system with exclusive control.

Introduction

 

“It is the duty of the master of a work-house to furnish [an incarcerated person] therein with food; and the earnings of such [a person] are a fund in the hands of the master for his remuneration.”

­–Washburn v. Belknap, Connecticut Supreme Court (1821)[1]

 

When federal lawmakers passed the CARES Act in response to the COVID-19 pandemic and the government sent stimulus checks to 162 million Americans,[2] the recipients included people in prison.[3] Despite efforts by federal officials to claw back checks sent to people in prison,[4] a federal district court ordered the IRS to continue making payments to incarcerated people and to take steps to facilitate the process.[5]

On economic grounds alone, sending COVID-19 stimulus checks to people in prison made sense. People in prison, despite being in a physically closed and isolated environment, are deeply intertwined with the economy. Incarcerated people receive financial support from family and friends, who often go into debt to pay the costs and support the daily needs of relatives in prison.[6] Thus, stimulus checks provided critical economic relief for these families. Moreover, incarcerated people constitute a captive market for prison vendors that provide—usually at highly inflated prices—their food, medical care, phone calls, internet access, soap, clothes, radios, deodorant, and even sometimes water.[7] In short, like individuals who received stimulus payments across the country, people in prison are economic actors, both as consumers and household members, and they are in chronic need of money to meet their daily needs.[8]

But unlike many recipients of CARES Act payments and the two stimulus checks that followed, people in prison had little choice about where or how to deposit and manage these funds. Prison policies make it virtually impossible to store money or make purchases without relying on what are known as “inmate trust accounts.”[9] To people in prison, these accounts operate like standard bank accounts: prison wages are deposited in inmate trust accounts; when family members “put money on the books” for loved ones, the funds go directly into these accounts; and people in prison draw on these accounts to buy commissary items, pay for prison medical care, make phone calls, and more.[10] But unlike bank accounts, inmate trust accounts operate under the authority of prison administrators.[11] While non-incarcerated individuals control the funds in their own bank accounts or in their own cash reserves, people in prison must rely on the use of trust accounts, over which they have little control except that which is granted to them under prison policies.[12]

Legally, the governmental entities overseeing prisons are tasked with administering these trust accounts.[13] Practically, it is individuals within departments of corrections and jail administrations that control when, how, and to what degree people in prison can access and spend their money.[14] These officials range from correctional officers and staff members who run commissaries and inmate trust accounts to sheriffs, directors, and commissioners who make decisions and set policies on the use of funds, fees for services, and contracts with vendors. Unlike bank accounts and trust accounts in the free world, inmate trust accounts in carceral facilities are not highly regulated. They receive little external oversight and are not managed by individuals who administer the funds in the best interests of the people for whom these accounts exist.[15]

It should not have been surprising, then, that the sizeable volume of economic stimulus funding to people in prison resulted in large-scale seizures by state and local governments.[16] Across the country, stimulus funds intended for people in prison simply disappeared before hitting their inmate trust accounts.[17]

The justifications for seizing and diverting funds varied. For example, although the CARES Act, on its face, clearly allowed for payments to people in prison, “the State of Arkansas did not consider that a wise use of federal taxpayer funds.”[18] Within weeks, Arkansas legislators passed a law permitting the state to seize the entirety of the federal relief checks[19] sent to prisons, divert any funds owed for “court fines, fees, costs, or restitution,”[20] and retain the rest to be deposited in equal amounts into an “inmate welfare fund” and the prison’s general operating fund.[21] A federal court ruled that the seizure of funds to pay court fines, fees, costs, and restitution was lawful but that diverting the remaining funds into general prison operating accounts violated the Takings Clause of the Constitution.[22]

Other states succeeded where Arkansas failed, finding legal loopholes for seizing funds for general prison use by classifying the funds as payment for debt. In Michigan, for example, prisons seized entire checks to satisfy “institutional debts” to the prison itself.[23] One individual filed suit, alleging that prison officials had convinced him to apply for stimulus funds but then seized the money that he planned to use to pay for “medical co-pays, hygiene products, clothing, over-the-counter medications, stamps, pens, pencils, paper, and supplemental food.”[24] But under Michigan law, “institutional debts” include the per diem cost of incarceration itself and everything that entails, including prison buildings, staff, food, medical care, transportation, and more.[25] In other words, people in Michigan prisons owe the entire per capita cost of their incarceration. For most or all incarcerated people, recovering that debt would deplete entire savings—and certainly an entire federal stimulus check.[26] Unlike the Arkansas law, Michigan’s seizure of payments was, at least ostensibly, intended to cover a prison debt, and therefore a federal court upheld the practice.[27]

Arkansas and Michigan were not alone in their efforts to seize stimulus money. Prisons and jails across the country withheld significant sums of money from the checks sent directly to their facilities. In many circumstances, prisons and jails justified taking funds on the grounds that the individuals owed money for services and purchases while in prison,[28] for fines and fees associated with the individuals’ convictions,[29] or, as in Michigan, to reimburse the government for the daily cost of incarceration.[30] One public defender told a reporter she received a stack of about fifty letters from people in prison with complaints about garnishment.[31] She said that, on average, people were seeing about 50 or 60 percent of their stimulus checks taken by the facility.[32]

For individuals who saw their funds dissipate, there was often little transparency with regard to how and why funds disappeared.[33] The current system of prison banking is so opaque that it can be difficult or impossible to decipher the rationale for withholding portions of stimulus checks, how seized funds were used, or even the authority that allowed prisons and jails to act as debt collectors.[34]

In some of the public commentary, experts opined that the federal provisions that produced the stimulus payments simply failed to expressly restrict or prohibit garnishment by prisons and jails and that they were—legally—exploiting the oversight.[35] But this position depends on the premise that prisons and jails are allowed to seize funds belonging to others, with little or no oversight, regulation, or transparency into how they are carrying out these seizures. In the highly regulated arenas of non-carceral bank accounts and trust accounts, such seizure of funds to satisfy supposed debts with so little public accountability would be unthinkable.[36]

Prisons’ garnishment of inmate trust account funds is not a new phenomenon, and questions have long circulated about the property interests, rights, and obligations that attach to these accounts.[37] The intersection of prisons and money regulation, and the tangle of rights and obligations that arise, have deep historical roots. In 1821, a Connecticut court puzzled through the case of Harvey Belknap, who was incarcerated at a county workhouse, and whether the warden could sue for the cost of feeding him after his release. For whatever reason, Belknap had not worked and earned wages at the workhouse, and the warden had not forcibly compelled him to do so.[38] Had Belknap earned money while in jail, the court ruled, those earnings would have been “a fund in the hands of the master of the work-house,” and the warden could have seized the earnings.[39] But without easy and immediate access to such a fund, the warden had no right to demand such a payment from funds outside of his control.[40] In other words, funds received by the individual while incarcerated had a very different legal status than any he might have earned outside of jail.

In the two centuries that followed, courts, governments, and prison administrators have failed to offer a coherent legal framework for the management of funds belonging to incarcerated people. In the absence of a rights framework, inmate trust accounts have become vulnerable to substantial abuse. Prison banking has a complex history that runs through the post-Civil War era’s racialized financial penalties and debt bondage of formerly enslaved people and the rise of mass incarceration in the twentieth century. It also has modern roots in the expansion of privatized prison services and the economic policies that have left prison systems to fill their own budget gaps. Against this backdrop, prison-based asset seizure has become a feature, not a bug, of a broader system of wealth extraction.[41]

This Article examines and challenges the assumption that prisons and jails should be authorized to operate a low-transparency banking system over which they have exclusive control, while being subjected to little oversight and acting with a high degree of conflict of interest.[42] The large-scale seizure of COVID-19 funds from people in prison offers a lens into a broader phenomenon: the long-standing, widespread practice of diverting money from prison bank accounts to public coffers and private companies. People in prison are, by and large, indigent; their account balances are low, and the seizure of funds from inmate trust accounts has received little attention.[43] The influx of cash to incarcerated people during the pandemic made the problems of the prison banking system apparent to many, largely because of the scope and scale of the money at stake.[44] But the public still has little insight into how prisons manage incarcerated peoples’ funds, or the degree to which governments are continuing to siphon off the savings of people in their custody every day and in smaller increments.[45]

Part I of this Article provides an overview of prison banking, how prison systems have implemented and justified them overtime, and the current statutory and regulatory frameworks that govern them. Part II situates prison banking against two historical backdrops: the 2008 Great Recession, which squeezed state and local budgets, including correctional systems, and created incentives for governments to increase revenues through criminal system fees and private contracts; and a longer history of racialized wealth extraction in the criminal system. This Part then examines the ways in which prison systems extract money from inmate trust accounts, and the problematic features of prison banking that enable these practices. Part III explores two paths forward for undoing the abuses of prison banking: (1) increasing regulation and oversight of inmate trust accounts, and (2) taking banking out of prisons.

I. What Are Inmate Trust Accounts?

As creatures of various state statutes and regulations that govern prison administration, inmate trust accounts defy straightforward categorizations. The statutes and regulations often say little about how courts, prison administrators, and incarcerated people should understand the rights and obligations that govern access to this money. This Part first examines the legal status of inmate trust accounts and compares it to the regulation of money in the free world. It then describes the multiple competing justifications for inmate trust accounts and descriptions of what purposes they serve. Finally, this Part surveys the statutes and regulations that govern inmate trust accounts and explains why these provisions offer few clear answers to the question: What are inmate trust accounts?

A.     How Inmate Trust Accounts Operate

The legal status of inmate trust accounts is murky, as is the purpose for which they exist. These accounts, however, have some common features. The National Consumer Law Center has explained that, “[a]lthough [prison] trust accounts are typically held in some kind of depository account, the incarcerated person with equitable title to the money has no direct customer relationship with the depository institution.”[46] Similarly, one researcher has described inmate trust accounts as “a term of art (specific terminology varies by jurisdiction) describing a deposit account held by a governmental entity for the benefit of an incarcerated person.”[47] In other words, people in prison do not primarily interact with the government’s treasury in accessing their funds but rather go through the prison administration itself or through a financial technology (fintech) firm that contracts with the prison or jail system.[48]

The prisons, therefore, mediate the relationship between incarcerated people and the entities that hold their money. Inmate trust accounts offer a means for people in prison to purchase a variety of goods and services, but those purchases are limited to a small universe of vendors and providers and are often subjected to fees assessed by prisons and inflated prices for goods.[49]

However, inmate trust accounts share some features with actual bank accounts in that they offer a place for prisons to deposit wages for incarcerated people and for loved ones to transfer funds. Incarcerated people draw on them to pay for goods and services.[50] They also have features of non-carceral trust accounts, in that prisons act as administrators of the funds, which are to be used in specific ways for incarcerated people.[51]

While inmate trust accounts may, in some ways, look and function like bank accounts or trust accounts in the outside world, their regulation and oversight look very different. Bank accounts are governed by a vast network of state and federal statutes and regulations that offer a number of protections: banking law protects customers against dubious creditors,[52] conflicted self-dealing by financial institutions,[53] disclosures of private transaction information,[54] and human error.[55] Moreover, agencies provide substantial oversight over depository institutions, and these agencies themselves are under heavy government regulation.[56] The federal government’s Office of the Comptroller of the Currency (OCC), for example, oversees national banks and ensures that they comply with laws and regulations that protect bank account holders.[57] Under the OCC, national banks are audited extensively by independent entities and have special rules governing fiduciary activities.[58] The OCC assesses banks’ activities to ensure the banks can “manage or avoid” conflicts of interest.[59] Together with the Consumer Financial Protection Bureau (CFPB), the OCC regulates excessive, duplicative, and erroneous deductions by banks from consumer bank accounts.[60] Also under the oversight of the OCC, bank accounts are protected from debt collection in many ways: a debt collector, even if the collector is the bank itself, must follow strict rules about its communications with debtors, must give debtors specific and detailed information about the debt owed, must provide debtors an opportunity to object to the debt, and cannot collect any part of a debt “unless it was expressly authorized by the original debt agreement or permitted by law.”[61]

The OCC also conducts examinations of banks with regard to their payments systems and specifically evaluates banks for their internal controls against error and fraud, their systems for ensuring regulatory and legislative compliance, and whether their staffing protocols are sufficient to guard against error and conflicts of interest.[62]

Moreover, a host of other substantive laws and oversight mechanisms apply to national banks, state banks, credit unions, and commercial payments systems. Under federal law, financial institutions have obligations of privacy[63] and protections against garnishment of federal benefits[64] and of substantial portions of wages.[65] The Electronic Fund Transfer Act and its implementing regulations set limits on certain fees for money transfers and outline an error resolution process for disputed deductions.[66]

If inmate trust accounts were treated as free-world trust accounts, oversight and regulation would also be substantial. If prisons had the fiduciary obligations of a trustee, they would be “under a duty not to profit at the expense of the other,” and if a prison “enter[ed] into a transaction with the other and fail[ed] to make full disclosure of all relevant circumstances known to the fiduciary, or if the transaction [was] unfair to the other, the transaction [could] be set aside by the other.”[67] Also like a trustee, the prison would be required to “collect[] and protect[] trust property,”[68] and would be bound by duties of prudence,[69] of loyalty,[70] of impartiality, and to further “income productivity.”[71] The duty of loyalty alone would impose requirements on prisons that would bar many of their current activities: prisons would be required to administer the “trust solely in the interest of the beneficiaries”[72] and could not “engag[e] in transactions that involve self-dealing or that otherwise involve or create a conflict between the trustee’s fiduciary duties and personal interests.”[73]

But courts and lawmakers have determined that the carceral setting displaces sources of law that might otherwise regulate inmate trust accounts.[74] The provisions relating to prison banking exist largely in the statutes and regulations that govern prisons separate from other areas of money regulation.[75] In other words, when seeking to identify the rules governing inmate trust accounts and the rights and obligations that attach to them, one looks to the statutory and regulatory sections governing corrections generally. Any provisions that govern banks, credit unions, or trusts in the free world simply do not apply.

B.     Descriptions, Justifications, and Purposes of Inmate Trust Accounts

Prison banking goes back at least as far as the early days of the Republic.[76] In fact, any prison that tracked the debts of incarcerated people or held the pocket money of an arrested individual until their release could be said to have engaged in a rudimentary form of today’s prison banking.[77] As more formal systems of account-keeping developed in the twentieth century,[78] the descriptions, justifications and purposes of such accounts have varied, even within a jurisdiction during a given period in time.[79] But the rationales and descriptions cluster around some common themes. Throughout U.S. history, inmate accounts have functioned as (1) ledgers to track wages and debts; (2) government accounting devices to track property, sometimes treating the accounts as true trusts, with prisons acting as fiduciaries; (3) necessary vehicles for an efficient commissary system; (4) a means of maintaining security and control; (5) pooled assets for the general welfare of the prison population; (6) tools for teaching financial responsibility; and, often, with overlapping versions of some or all of these rationales. The following Sections examine each of these purposes.

1.     Prison Accounts as Ledgers to Track Wages and Debts

As described below, many justifications for prison control of personal money are grounded in the idea that inmate trust accounts are simple innovations to solve basic administrative problems. But older historical sources tell a different story, where wage accounting for imprisoned people was bound up in concepts of indentured servitude. The clear purpose of this accounting was not to allow for better tracking of property or to pool funds for the general welfare of incarcerated people but rather to use the personal funds and low-wage labor of incarcerated people to repay the government for the costs of incarceration.[80] The case of Harvey Belknap in 1821 reflects this principle that the account holding the workhouse wages of individuals in custody was there for the taking by a warden, who otherwise would have no right to recover for carceral debts.[81] A 1936 note in the Yale Law Journal discussed the ways that the first prison systems could recoup costs of incarceration, noting that “[a] few states a century ago tried a system of individual accounting” for each incarcerated person, “charging him with maintenance costs and crediting his account with the proceeds of his labor, any adverse balance remaining a charge upon his property after his release.”[82]

Several accounts of early prison labor as a form of remuneration to the state framed the practice as rehabilitative, claiming that it was an advancement over the barbarism of earlier prison management.[83] The Walnut Street Prison, which operated in Philadelphia from the 1790s to the early 1800s,[84] charged for costs of incarceration. However, it also offered an option to earn wages at a level equivalent to what the individual could earn on the outside, and the prison maintained a kind of ledger account to keep track of the balance.[85] Some individuals ended their prison terms with a surplus and were handed the overage as they departed; others sustained a debt and remained incarcerated until it was paid for through their labor.[86]

As part of this this process of crediting and debiting the accounts, incarcerated people “carried their accounts in little books” so that they “might know both their earnings and their obligations. . . .”[87] According to this reform-oriented narrative, the wage and accounting system in place offered a strong motivation to incarcerated people and was therefore also a useful tool in prison management.[88]

This reformist picture diverges sharply from the reality for many people, particularly in the southern states, where wage and debt accounting became a tool for continuing slavery practices long after the Civil War. In his book Slavery by Another Name, Douglas Blackmon recounted the story of Green Cottenham, a Black man in Alabama arrested in 1908 on vague accusations of vagrancy.[89] Sentenced to thirty days at hard labor, he was charged an array of fees for the costs of convicting him—“fees to the sheriff, the deputy, the court clerk, the witnesses.”[90] With no means to pay, his sentence became a year—the time it would take to achieve a zero balance on his debts.[91]

2.     Prison Accounts as Simple Government Budget Line Items to Track Property

As prisons and jails expanded in the twentieth century and grew into more formal and regulated entities, the administrators running them needed a better system of tracking property. Simply locking cash in an office made less sense with larger state prisons and municipal jails.[92] Budget reports including entries for pooled inmate trust account balances appear as early as 1899.[93] At some point, facilities began depositing these funds into formal bank accounts.[94] In 1930, the federal government established an inmate trust account for the Bureau of Prisons (BOP) with a two-fold purpose: partly, as explained below, to offer incarcerated people “the privilege of obtaining merchandise not provided by the [prison] or of a different quality,” but also simply “[t]o maintain [their] monies.”[95] The BOP was not alone in setting up accounts like this to track money. States also began using inmate trust accounts as a straightforward device to keep track of the money an individual had upon entry into prison and any prison wages earned during their term.[96]

3.     Prison Accounts for Purposes of Setting up an Efficient and Well-monitored Commissary System

One purpose of inmate trust accounts is to enable a cashless system for purchasing commissary items.[97] In the early 1930s, the federal government established multiple federal trust funds, one of which was a prison commissary fund that pooled the proceeds of commissary purchases. A separate fund was established solely to maintain the depository accounts of incarcerated people.[98] Though separate, the two funds were inextricably linked. “The Commissary was created to provide a bank-type account for ‘inmate monies’” and “for the procurement of articles not regularly issued as part of the institution administration.”[99]

Specifically, the federal government established an inmate trust account at each federal prison and simultaneously set up a commissary system for the purchase of items “such as toothpaste, soap, stamps, arts and crafts, newspapers and magazines.”[100] The idea was that “[w]hen purchasing articles from the commissaries, inmates were required to have their Inmate Trust Fund accounts debited in the amount of such articles.”[101] The government created a budget category called the Commissary Fund, which was used to purchase goods in the commissary and to pay the salaries of commissary employees.[102]

In 1934, Congress passed the Permanent Appropriation Repeal Act, which classified a number of accounts as trusts held by the Treasury Department, including both the Commissary Fund (set up to run the commissaries) and the “Deposit Fund” (set up to run individual prison accounts).[103] According to a recent BOP program statement, little has changed since these accounts were created. The purpose of the inmate trust account remains the same as it did in the 1930s: to maintain individuals’ money and to offer them the “privilege of obtaining merchandise and services either not provided by the Bureau or of a different quality than that provided by the Bureau.”[104]

State governments followed suit, sometimes setting up dual accounts, one for commissary purchases and proceeds, and one for individual funds. Alternatively, some states established an inmate trust account along with a commissary coupon system.[105] Under the latter regime, incarcerated people would write negotiable checks against their accounts in exchange for commissary vouchers to purchase items at the prison store.[106]

Today, there is little transparency over how prisons operate commissaries and the pricing, markup, and quality of the items sold.[107] Moreover, people in state and federal prisons purchase far more than just traditional commissary items. They pay for essentials, like food to supplement inadequate meal portions, basic hygiene items like toilet paper, medical co-pays, and over-the-counter medicines. They also spend significant amounts on a vast array of fees for services like phone calls, tablets, e-messaging, video chats, and music.[108] They may even pay to use electricity.[109] In some places, incarcerated people pay for in-person social visits with loved ones.[110] The incentive for prisons to invent fees and impose high markups, therefore, is substantial. Increasingly, prisons are entering into contracts with vendors to scan postal mail such that incarcerated people can only view digital versions of the letters and photos that people send to them.[111] In these facilities, incarcerated people can no longer hold and look at these letters and photos as often or for as long as they once could. Instead, they must pay per minute to feel connected to their loved ones.[112]

Prison banking and commissary services have always been interdependent; but today, inmate trust accounts and privatized goods and services are more deeply intertwined than ever.[113] Inmate trust accounts exist to support far more than just a commissary payment system and are, instead, integral to a system that requires incarcerated people to pay for a whole host of regular activities and everyday items. Moreover, the same vendors that operate prison banking often also provide telecommunication services, tablets, and commissary.[114] Private vendors like Trinity Services Group, Securus Technologies, and Global Tel*Link/GTL do not simply facilitate an efficient and secure commissary system; they now incentivize prisons to expand the range of things that people in prison must pay for, making inmate trust accounts indispensable for incarcerated people.

4.     Prison Accounts as a Means of Maintaining Security and Control

Prison administrators are concerned about money flows into prison and potential threats to security and order if cash or an equivalent is available to people in prison.[115] According to one court, “The purpose of requiring prisoner funds to be held in trust by prison authorities is to prevent prisoners in [state] custody from possessing quantities of cash that can be used for illicit purposes.”[116]

After one prison set up a canteen voucher system in the 1950s, officials complained that “as much as $1,000 a day is checked out of the prisoner trust fund for whisky, gambling, narcotics, and sex perversion.”[117] More recent literature on the risks posed by cash in prisons is scarce, so it is difficult to assess how necessary inmate trust accounts are to prison security and whether substitutes, like free-world cashless banking options, might address the concerns of prison officials.[118] But regardless of the precise nature of the security risk, inmate trust accounts enable prisons to operate a closed economy without depending on cash.

Beyond eliminating the need for cash transactions, inmate trust accounts allow for more complete surveillance and control of daily activities and access to media content. Prisons can control a person’s broad purchasing power simply by creating in-prison costs for basic activities, requiring that costs be paid out of inmate trust accounts, and making all transactions subject to approval by prison administrators.[119] Some prisons even establish rules that incarcerated people are not allowed to maintain outside bank accounts.[120] In New Jersey, incarcerated people can have outside bank accounts only if all other debts have been paid. But since people in prison are liable for all costs of medical care and incarceration, that debt is likely never to be extinguished for most people.[121] In Nevada, an incarcerated individual who fails to deposit all incoming funds into their prison account can be charged with a misdemeanor.[122]

Prisons grant themselves wide discretion to determine what people can purchase out of their inmate trust accounts. For example, the BOP’s manual for use of inmate trust account requires that any request by an incarcerated person to withdraw money for purposes of paying an outside entity must be approved by the prison, but there are no policies explaining when approval can be withheld.[123] BOP has wide discretion to force people to use the prison commissary, rather than outside vendors, and to deny requests to transfer funds to loved ones.[124]

The idea that prisons can use inmate trust accounts to control the activities of incarcerated people is not new. For example, an early critique of the Massachusetts State Prison discussed the flow of money from contracted prison labor into facilities. Despite strict limitations on spending, the critic asserted that incarcerated people were spending money on disfavored activities, even spending funds to retain “legal counsel and other persons to obtain pardons for them, and sometimes in employing lawyers to obtain or prevent the passage of criminal or penal laws, which the convicts liked or disliked.”[125] The purchase of “infidel books” was also deemed a disfavored activity.[126] On some occasions, incarcerated people used their funds to bribe officers.[127] More commonly, however, people incarcerated in Massachusetts State Prison used their wages “to procure luxuries such as tea, coffee, tobacco, milk, crackers, fresh fish, butter, cheese, cider and apples.”[128]

A broad array of reforms at the Massachusetts State Prison[129] included increased restrictions on the flow of money. The prison administration achieved greater control over money and purchasing by creating a library, restricting its content, and funding it through prison wages.[130] Both before and after the reforms, the money of incarcerated people was used to buy books. The only difference post-reforms was who got to select the content. Individual purchases for musical instruments and reading materials were permitted only if the warden made the actual purchase.[131]

Today, prisons maximize their ability to monitor and control money transfers and purchases with the help of financial technology. Prominent firms like JPay (which is owned by Platinum Equity Partners and has largely overtaken phone, e-messaging, video visitation, tablet technology, and finances in prison systems across the country) and corporate entities like Keefe Group promote their capacity to surveil financial activity as part of their bids for contracts with corrections.[132] Data supporting the need for such monitoring, however, is lacking.[133]

5.     Prison Accounts as Pooled Assets for the General Welfare

In some cases, inmate trust accounts were not set up to operate as regular bank accounts for individuals in prison but were established as pooled assets to be used for the general welfare of people in prison. In other words, certain proceeds, wages, or fees contributed by incarcerated people were pooled into one account that may have been used to benefit the general prison population. For example, in Hawai‘i, incarcerated people would sell craft items at an annual sale, and the proceeds would be placed in an “inmate trust fund”; an “inmate council” could, by a majority vote, spend that fund on items intended to benefit the collective incarcerated population.[134]

Prison systems today commonly oversee similar funds that are often labeled “inmate welfare funds” or “general welfare funds.”[135] But for the most part, these funds are distinct from the kind of prison accounts that receive earnings and deposits belonging to individual people. However, this idea of an account for collective benefit does still exist in the form of “welfare funds,” which raise funds by collecting money from individual incarcerated people for commissary purchases, phone call fees, and the like.

Today, both welfare funds and inmate trust accounts share some features with earlier pooled welfare accounts. First, prisons’ welfare funds often contain money from individual incarcerated people, just not directly from wages and deposits by friends and family. For example, welfare funds can contain the profits from commissary purchases,[136] cost-of-incarceration payments by people in prison (often involuntarily drawn from individual accounts), sales of craft items,[137] and site commissions from private service providers like JPay.[138] The principal funds in an incarcerated individual’s account are, in other words, diverted directly into welfare accounts in the form of, for example, commissary proceeds and phone services.[139]

Today’s inmate trust accounts are also pooled accounts. While people in prison may think of their own individual inmate trust account as being theirs alone, in reality, money from individual deposits has, for a long time, been pooled into a government account.[140] An individual’s account balance is really just a ledger for the prisons to keep track of who can spend what within the overall pooled inmate trust account.[141]

But the differences between today’s welfare funds and inmate trust accounts are telling as well. Specifically, there are different rules about how prisons can spend the money in the two accounts. Although prisons cannot directly spend money out of an inmate trust account to cover their own administration costs, they often have the authority to do exactly that with welfare funds.[142] In contrast to the early Hawaiian model of allowing incarcerated people to determine for themselves what welfare activities they fund—such as movie night or recreation—today’s welfare funds are managed almost entirely by prison administrators.[143]

Moreover, virtually every expenditure can count as promoting an incarcerated person’s “welfare,” including administrative prison costs, salaries, and capital projects. On paper, welfare funds might look like they support things like movie nights, recreational activities, and other “extras,” but they are often used instead to cover the basic operational costs of running prisons. For example, in West Virginia, a state statute limits the types of expenditures that can be made out of its “Inmate or Resident Benefit Fund,” and lists expenditures like cable TV, movie rentals, and Christmas gift certificates.[144] But buried in the list of permissible expenditures, at number fourteen out of the sixteen listed expenses, is “[a]ny expense for improvement of the facility which will benefit the inmate or resident population that is not otherwise funded”—a broad category that could cover nearly any conceivable cost of running a prison.[145] In 2022, a report to the Montana legislature analyzed the state’s use of prison welfare funds, which is comprised almost entirely of phone fees and canteen markups.[146] The audit unearthed several unauthorized expenditures from the fund, as well as several “questionable” expenditures, like hygiene items for indigent individuals or legal research materials, that may technically comply with policy but logically should have been covered by prisons’ general operating funds.[147]

In short, the welfare fund can easily convert a deposit from a loved one into operations spending by the prison. Money flows from inmate trust accounts, to pay phone fees, commissary items, and other fees, straight into general welfare funds.

6.     Prison Accounts as Tools for Teaching Financial Responsibility

Another theme that emerges in the regulation of inmate trust accounts is that the accounts themselves and the prisons’ control of these accounts exist to teach incarcerated people personal financial responsibility.[148] Under this rationale, prison systems maintain that taking money out of these accounts to satisfy various debts, including payments to the prisons themselves, is rehabilitative in and of itself.[149] In other words, compelling people in prison to cede control of their own money is actually for their own benefit.[150]

For example, the BOP controls inmate trust accounts through a program called the “Inmate Financial Responsibility Program (IFRP).” The stated goal of the IFRP is “to encourage federal inmates in Bureau facilities to pay financial obligations; and to support federal inmates in developing financial planning skills.”[151] To that end, the IFRP allows prisons to divert funds from inmate trust accounts to pay a variety of debts, including state and federal court fees and fines,[152] victim restitution, and, most problematically, the debt each person owes to the prison itself for their own incarceration.[153]

Several states have forced savings requirements. These plans segregate a portion of the inmate trust account so that the individual cannot access it, even to cover basic necessities and non-frivolous purchases. This requirement may apply even when the individual’s release is years or decades into the future. [154] To pay a filing fee, one incarcerated individual in Wisconsin sued to get access to his funds, which the state claimed he had no right to access because they were encumbered.[155] The court ultimately granted him access to his funds but only because he had been transported out of Wisconsin, where the state’s law no longer applied.[156] In Kansas, a court rejected a challenge to the prisons’ mandatory savings plan where the individual was serving a life sentence and would never be able to access the saved funds.[157] In Nevada, all individuals must divert funds to a savings account for their release, even if they are serving life sentences.[158] Upon release, Nevada prisons can seize savings account funds to cover certain institutional debts.[159] This means that incarcerated individuals may never be able to use any of the funds that they are forced to save: either they are never released and the funds revert to the state, or they are released with an institutional debt that they must pay with their mandatory savings funds.[160]

Like the BOP, state prison systems justify their control of inmate trust accounts on the grounds that such controls teach financial responsibility. In Kansas, one court found that prisons can deduct per diem incarceration costs because the goal of teaching “fiscal responsibility” is rationally related to the state’s legitimate interest.[161]           

C.    The Legal Status of Inmate Trust Accounts

Prison banking systems can have features of one, some, or all of the categories above and can justify their existence on one or more of these grounds simultaneously. Regardless of the various shifting descriptions of prison banking, courts have only occasionally applied legal categories that exist to protect money outside of prison. Sources of protection for free world property interests in money—such as laws governing trust accounts, bank accounts, custodianships, bailments, or other legal frameworks for money that is not in the immediate possession of a clear owner—simply do not apply to inmate trust accounts.[162] The sheer murkiness and resistance to existing legal categories leaves these accounts open to abuse.

Different rationales for prison bank accounts give rise to very different understandings of what the legal status of that money is. If the idea is to repay the state for its costs, then it follows that the holder of the account has no (or only minimal) legal interest in or right to access that money. The account itself is a mechanism for repayment of the cost of incarceration. But if the accounts exist exclusively for the benefit and use of individuals in prison—whether as their own personal money to be spent at their discretion, or as pooled assets belonging to multiple people to fund movie nights or other desirable activities—then it follows that the state has no legal interest in the money and only a limited right to control it.

Using inmate trust accounts to simply store and track funds belonging to individuals raises several questions about the legal status of these accounts and the rights and duties of incarcerated people and prison systems in maintaining and accessing them: Are these accounts true trust accounts, accompanied by the restrictions on conflicts of interest and the obligations of a fiduciary? Do they constitute some form of bailment, custodianship, or something else? Are they a government fund that may have some characteristics of some of these other categories?

If the goal of early inmate trust accounts was simply to hold and account for the money of others, and if the common name for these accounts as they developed in the federal system and across states is a “trust,” then it follows that these accounts are, in fact, true trust accounts. The federal government’s more recent analysis of the status of federal inmate trust accounts, after all, adopts the 1930s idea behind the creation of the accounts—that the money belongs to the incarcerated person and the prison simply holds it for them.[163] Memos from the DOJ have repeatedly affirmed that the funds belonging to people in federal prisons constitute a true trust and that the federal government has a fiduciary obligation to hold these funds.[164] The BOP has adopted this view in the program statement for its manual governing trust funds,[165] and the Court of Federal Claims has likewise found that a fiduciary obligation exists.[166]

Other courts have recognized that incarcerated people have a property interest in their own money but have not offered a legal category that could help define the contours of that interest.[167] Texas courts, despite the use of the term “inmate trust account,” deny that the fund is a “trust” at all but simply maintain that it is an “account.”[168] In keeping with the idea that the fund occupies a space that is neither a trust nor a true bank account, Texas courts decline to apply traditional procedural safeguards against unlawful garnishments of assets, noting that applying such procedures would be expensive: “Faced with this cost-benefit tradeoff, the [Texas Department of Criminal Justice] would likely opt not to seek recoupment at all, thus subverting the Legislature’s goal of efficient cost-collection.”[169]

Many courts adjudicating issues involving these funds simply do not place them into any property category.[170] This failure by the courts to identify a proper legal framework for money that is held and maintained by the government for the benefit of and use by another leaves it unprotected. Few[171] would argue that any money deposited into an inmate trust account or earned by incarcerated people simply belongs to the government to do with it what it likes.[172] Governments do use the term “trust” to refer to budget line items that are not actual trusts, and the term just indicates the money is set aside for some purpose.[173] But these funds, unlike inmate trust accounts, can be reallocated for various different purposes. The inmate trust accounts must, therefore, be qualitatively different from other segregated government funds, which are simply government accounting devices to allocate funds that the government indisputably owns.[174]

In the absence of a singular, consistent description and purpose behind the creation of inmate trust accounts, we get a kitchen sink of legal interpretations about the status of this money. Representing one interpretation, Michigan’s and Arkansas’s endeavors to take entire stimulus checks to repay themselves for running prison systems conforms with the Belknap court’s notion that an incarcerated person’s account is “a fund in the hands of the master for his remuneration.”[175] There is also the view that money in these accounts belongs to incarcerated individuals, and the inmate trust fund serves purely administrative purposes: to allow for easy commissary purchases through secure means and to set that money aside from other government coffers.[176] More commonly, prison practices suggest that the money may belong to the incarcerated person in some loose sense, but prisons can and do assert strict control and limit access.[177]

Financial technology has made it even more difficult to describe what prison banking is supposed to do and what legal category applies. In 2002, prison financial services provider JPay entered into its first contract with a correctional institution.[178] In short order, JPay and its competitors secured contracts with prison and jail systems across the country. Fintech firms advertised their products as a boon to incarcerated people and their families,[179] but with the arrival of these products, people in prison lost even more control over and access to their funds.[180] At the federal level, Bank of America’s role in managing the “Inmate Trust Fund” has not altered the federal government’s fiduciary obligation to manage it.[181] In state systems, however, financial technology firms have caused courts a great deal of confusion as they try to sort out exactly where the property interest lies when loved ones deposit money into an account. Though the money is intended for the benefit of an incarcerated person, both the private fintech firm and the prison have what seems to be direct access.[182]

The various, incremental deductions from prison bank accounts by prisons and fintech firms begin to look increasingly like what Michigan and Arkansas set out to do. After all, taking small amounts of money from low-balance accounts across massive prison populations can be quite lucrative.[183] And in practice, the larger asset seizures authorized under a cost-of-incarceration rationale are more common than the public may think; the seizure of COVID-19 stimulus checks, for example, put a spotlight on this longstanding practice because it was so widespread and sudden, and applied to much larger sums of money.

Without a clear or singular rationale behind inmate trust accounts, supposed creditors have easy access, with little oversight, to this money. Many courts find that prison systems can unilaterally seize money from a person’s account, with very little process, on the grounds that the individual owes a debt—to the prison, to a victim, to a government restitution fund, or to a court, to name a few examples—even though they would not be able to do the same with a person’s personal bank account in the free world.[184] For some courts, it is not even clear whether litigation involving an inmate trust account is a criminal or civil matter.[185] While governments regularly use the term “trust” to refer to budget line items that are allocated for a specific purpose but are not actual trust accounts,[186] it cannot be that inmate trust accounts are simply budget line items that a government can reallocate at will. Virtually no one[187] argues that people in prison have no legal right to the money that they, their family, and friends have deposited in their accounts, such that it belongs exclusively to the government.[188]

Even on the federal side, where there is a documented history that appears to establish that inmate trust accounts are fiduciary accounts, the BOP still manages to exercise coercive control over the accounts to divert money to itself and other entities. Participation in the Inmate Financial Responsibility Program is voluntary in theory, but if a person refuses to participate, the BOP informs the Parole Commission of their refusal, bars them from furlough eligibility, precludes them from certain wage benefits and work assignments, restricts their commissary purchases, denies them certain release gratuities like civilian clothing and money for transportation, and takes away other early release and financial benefits.[189] Although the IFRP purports to teach “financial planning skills,”[190] in effect, the program simply means that the BOP takes people’s money and leaves them with less of it. The BOP has produced no evidence that the IFRP actually improves financial planning skills[191] or that there are program benefits for the disproportionately low-income population that is released from prison.[192] These approaches to teaching financial responsibility—taking money out of accounts to pay down a variety of court and criminal system debts and imposing a forced savings plan—simply result in less liquid cash for a population of people that is already mostly destitute.

As of the date of this writing, the BOP is considering a rule change that would exact an even greater percentage of a person’s account balance (75 percent) to pay court debts and prison costs.[193] Despite its historical assurances that the BOP acts as a fiduciary, the federal system, like many state prisons and jails, is regularly siphoning off money, earned by incarcerated people and deposited by their friends and family, to pay itself and other criminal system actors.

D.    Statutory and Regulatory Frameworks and Failures

Courts have addressed a variety of concerns around the management of inmate trust accounts, such as whether the government gets to keep the interest,[194] what kind of process is required,[195] whether deductions are waivable for indigency,[196] whether certain funds are immune from garnishment,[197] and more. But the caselaw often nibbles around the edges of the larger conceptual questions: Whose money is it, and under what legal authority and regulatory framework do prisons operate these accounts?

One federal appeals court, presented with a challenge concerning the legal status of a prison bank account, described the question as a “Hohfeldian issue,”[198] around which it had to puzzle through the various rights and duties that exist between the incarcerated individual and the prison officials.[199] The court found that the prison’s mere threat to seize funds implicated the individual’s property interest because the threat constituted a money judgment that reduced the value of the security of the funds.[200] But the court curiously also found that the strength of the prison’s control over inmate trust accounts so diminished the individual’s security interest in the money that procedural due process was required:

To the extent that the Department of Corrections’ assessment interest differs from that of a traditional Judgment Creditor, those differences show that the Department of Corrections’ interest is actually the stronger and more readily collectable legal right.[201]

This analysis, and other efforts by courts to puzzle through the contemporary legal status of prison bank accounts, raise more questions than answers. Presumably, at least some of the answers should lie in state statutes and regulations that govern inmate trust accounts. Unlike the federal statute that sets aside inmate trust accounts as true trusts,[202] state statutes and regulations governing inmate trust accounts are housed under sections of statutory and administrative codes that deal exclusively with correctional authority rather than with any aspect of finance or property regulation.[203] The statutes governing inmate trust accounts are often vague[204] or nonexistent.[205] Mississippi statutes include only a provision that the Department of Corrections establish “a cashless system.”[206] While Mississippi law describes how contraband funds should be deposited in a fund for prison operations, it says nothing about what kind of accounting system should be established for the day-to-day earnings, savings, and deposits of all of the individuals in its custody.[207]

Where state statutes and administrative codes are silent on the administration of inmate trust accounts, the rules around them exist informally—possibly in an internal regulation, a prison handbook, or on a website. Rhode Island, for example, has no state statutes addressing inmate trust accounts, and the few administrative provisions that mention inmate trust accounts do so tangentially.[208] The prison handbook fills the gaps and sharply curtails spending rights, ensuring that most of an individual’s inmate trust account balance will be spent on prison commissary items. The handbook specifies only a few instances in which incarcerated individuals may spend trust account funds beyond the market of prison goods and services. For example, no expenditures are permitted, unless approved by the warden, to “publishers of appropriate approved magazines, periodicals, newspapers, and books,” for subsistence of loved ones, or for bail.[209] Payments to “other entities or exceptions” are allowed only with specific written approval from the warden, and the handbook contains no limits on the warden’s discretion to approve or deny such permission.[210]

As a consequence, state statutes largely fail to offer a coherent property rights framework that clearly identifies the rights and obligations imposed on the money held in inmate trust accounts. Despite the most common terms used for the accounts—“inmate trust accounts” or “inmate trust funds”—state statutes often do not explicitly label them as such,[211] sometimes using general terms like “safekeeping” to describe the role of the prison or jail official in maintaining accounts for incarcerated people.[212] In some states, the statute or policy or court interpretation may use a term like “custodianship” or “bailment,” but then treat the accounts in ways directly contrary to those terms.[213] Almost all states, however, are silent on the nature of the property interest.[214]

Caselaw involving incarcerated people’s challenges to seizures of their trust accounts suggests that the property interest is poorly regulated and challenging for plaintiffs to litigate in court. In a Ninth Circuit case about the nature of the property interest in inmate trust accounts, the court indicated that because incarcerated people had no property interest in their earnings at common law, any property interest must be derived from state statute.[215] This meant, of course, that where the state statute gave rights, it could also take away rights.[216] In other words, the state could define its own right to these funds.

State statutory provisions, however, often offer little guidance. For example, in Alabama, there is no state statute that governs inmate trust account administration, aside from a set of local laws that apply to county jails,[217] and no administrative code provisions regulate inmate trust accounts. The bulk of the policy, therefore, is developed in internal corrections directives,[218] and handbooks disseminated to people in prison.[219] But even these low-level policies and handbook rules only superficially address the administration of these accounts, and do not specify particular limits on the department’s ability to access funds and make deductions or the extent of the individual’s property interest in these accounts.[220]

Even those states that have detailed statutory provisions often give minimal guidance, aside from direction on specific transactions or to claim broad authority on approving or denying specific transactions.[221] Alaska has minimal specific statutory and administrative regulation, but its policies claim broad discretion on the part of the warden to control inmate trust accounts. Specifically, Alaska’s statutes say very little about its “prisoner account fund” except that prison wages are deposited into the accounts after the state makes any authorized deductions for various costs or debts, that the commissioner has complete authority to approve or deny expenditures based on what is “consider[ed] appropriate,” and that the prison wages are held for the “primary purpose of being available to the prisoner at the time of release.”[222]

Even in states with more comprehensive and detailed statutory provisions, regulations, and policies, the rules may be incoherent. Arizona’s statute gives broad authority to the director of the Arizona Department of Corrections, Rehabilitation & Reentry (ADCRR) to establish and regulate “prisoner spendable accounts,”[223] and ADCRR has made publicly available a detailed manual that explains its handling of inmate trust accounts.[224] The handbook helpfully includes a list of allowable deductions.[225] Still, the intersection of rights and obligations is unclear. The manual specifically requires that ADCRR act as a fiduciary,[226] but the Department nevertheless creates many costly fees that it collects for itself. Moreover, the description of ADCRR as a fiduciary seems at odds with a court’s characterization of the property interest as being defined solely by Arizona statute.[227]

The Texas Department of Criminal Justice (TDCJ) tries to give some sense of rights and limitations as it relates to the funds, but its effort to do so is confusing. The website describes its inmate trust account as an account that “provides safekeeping of an offender’s funds, to which the offender may have access to, but not physical control of, during their confinement.”[228] But the distinction between access and physical control makes little sense: individuals with bank accounts have no more physical control over the actual money currently held in a bank account than individuals in prison; they simply have access to it. What the TDJC apparently means is that the access—not physical control—is restricted.[229]

Without providing much of a rights framework or a property category for inmate trust accounts, the statutes and regulations that do exist regulate around the fringes: authorizing particular fee payments by the prison to itself or to other government entities,[230] barring people from holding other accounts,[231] reserving for prison officials the broad discretion to restrict access to funds by incarcerated people,[232] establishing forced savings accounts,[233] and even diverting funds to a corporation running a prison labor program.[234] Other provisions address basic ministerial issues, like where and how prison wages are deposited, and record-keeping.[235] Finally, several states have statutes that allocate the interest from the accounts.[236]

State statutes only rarely create specific rights for incarcerated people with regard to their accounts. Maine specifically permits individuals to transfer funds from their inmate trust account into outside investment accounts.[237] Another provision under Maine’s regulations, however, makes it a disciplinary violation for individuals to earn, inherit, or otherwise be credited with funds that they fail to deposit into their inmate trust account.[238]

In a regulatory vacuum, prisons can easily assert control that is not expressly given to them. Connecticut, for example, has passed statutes governing specific transactions, with provisions addressing how prison wages and proceeds from craft sales are deposited[239] and how the prison prioritizes debts to be disbursed from prison wages in the account.[240] While there is no general statute creating or granting prison officials control over the money belonging to incarcerated people, Connecticut regulations allow for limited deductions for educational programming and for 10 percent of all deposits to cover costs of incarceration.[241] When initiating proceedings to seize some portion of the account to cover costs of incarceration, for example, Connecticut prison officials are able to freeze individuals’ entire accounts, thus blocking incarcerated people from making even small commissary purchases for necessary items.[242] In other words, when Connecticut officials believe that the state has a right to some fraction of an individual’s money, they may freeze the entire account to prevent any purchases or withdrawals.

Such regulatory minimalism gives rise to a basic question: If people in prison have a property interest in their own money,[243] how can prisons create so many reasons for taking that money when not specifically authorized by law? In other words, why should prisons be allowed a default rule that they can impose any cost not otherwise prohibited, rather than a rule that they can impose only those costs specifically permitted?

One answer is, simply, that they cannot. In Vance v. Barrett, the Ninth Circuit addressed a claim by two incarcerated individuals that the Nevada Department of Prisons (NDOP) violated their constitutional rights by attempting to coerce them to sign a “fiscal agreement” authorizing NDOP to deduct a variety of costs from their inmate trust accounts and retain accrued interest, and then withholding work assignments when they refused.[244] The agreement would have conferred on NDOP broad discretion to deduct virtually all of most people’s inmate trust accounts because the debt included “any costs incurred by NDOP connected with an inmate’s release, and ‘the cost of any expense incurred by NDOP on the inmate’s behalf, whether the inmate incurred the expense voluntarily or involuntarily.’”[245] Because such expenses could encompass virtually any cost associated with running the prisons, those who signed the agreements would put their entire accounts at risk.[246]

The Vance court indicated that NDOP could not impose costs without either legislative authority or the fiscal agreement, stating in passing that “[n]one of these deductions were authorized by law.”[247] The court cited Nevada’s statute governing the “Prisoners’ Personal Property Fund,” which allowed only specified deductions from the individual’s account.[248] In particular, the court noted the language of the statutory provision that the “interest and income earned on the money in the [overall] fund, after deducting any applicable charges, must be credited to the fund.”[249] The court then determined that “[w]ithout a statutory mandate, prison officials had no authority to confiscate inmates’ property.”[250] Splitting its analysis in two parts, the court indicated that costs that were specifically authorized by statute would be analyzed under the Takings Clause whereas costs not authorized by statute would be evaluated as ultra vires acts by the prison under the Due Process Clause.[251] Because the court reasoned that “applicable charges” referred to the charges associated with maintaining the inmate trust account, and because reasonable user fees for government services are permissible, those deductions passed muster.[252] Any other charges, however, lacked statutory authority.[253]

If the Vance court was so clear that an agency could not seize funds without statutory authority, how are prisons regularly depleting inmate trust accounts, and how did entire stimulus payments disappear? The next Part begins by situating inmate trust accounts within a longer history of racialized wealth extraction in the criminal system and, more specifically, through prison coercion. It then outlines the various ways that prisons seize funds from inmate trust accounts on a daily basis and the myriad barriers that people face in challenging these asset seizures.

II. Problems with the Current System: Legal and Illegal Abuses

Prisons are not, of course, the only system actors that extract money from poor individuals charged and convicted of crimes. The problems of prison banking are, however, unique against the broader backdrop of criminal system fines and fees. This Part contextualizes prison banking within a system of race-based wealth extraction and describes the various ways that prisons siphon funds from inmate trust accounts. It then describes the impacts of prison banking practices on incarcerated people and their families and details the unique features of prison banking practices that give rise to large-scale wealth extraction. Finally, this Part describes the way in which prison banking practices are uniquely resistant to reform efforts.

A.     Prison Banking and Its Historical Contexts

This complex prison banking infrastructure has evolved against the backdrop of a broader phenomenon. Prison banking is just one way that governments have used criminal systems to extract money from mostly poor criminal defendants, and it is part of a massive and complex fine and fee system that has expanded significantly alongside the rise of mass incarceration.[254]

Just as prisons impose costs, so too do police departments,[255] courthouses,[256] prosecutors,[257] public defenders,[258] probation and parole departments,[259] and the various private profiteers that partner with them to offer services, impose punishments, collect debts, or simply keep these agencies running.[260] Compared to how these agencies assess costs and collect debts, prisons are unique in that they have direct and immediate access to the actual savings of their incarcerated debtors.[261]

Today’s fine and fee revenue systems have both a short and long history, with roots in both the 2008 Great Recession and the much older legacy of post-Reconstruction white supremacy. Both of these historical narratives offer important contexts for prison banking. The starting point for the more recent history of criminal fines and fees is the recession, when the fiscal squeeze on state and local budgets led many governments to look for replacement revenue in new fees, higher fines, and private contractors who would take over expensive government functions, impose their own high costs, and offer site commissions to the governments in return.[262]

The result was a surge in fines and fees imposed on the people least able to pay.[263] Although some litigants, activists, and scholars had long been raising the issue of widespread criminal debt and its implications for a new form of debtors’ prisons,[264] the protests in Ferguson, Missouri, following the police killing of Michael Brown brought national attention to the issue.[265] After community activists in Ferguson pointed to the entrenched fine and fee system as a major driver of incarceration and abusive control by police and municipal courts,[266] the Department of Justice investigated and issued a comprehensive report on the systematic abuses by courts and law enforcement and the high-pressure incentives on government workers at every level to maximize fine and fee revenue through the criminal system.[267] In the wake of this work by community groups and the Department of Justice, communities across the country, began raising the profile of the problem in their own areas.[268] A consistent picture emerged: across the country, at all sub-national levels of government, criminal systems and governments were being funded by poor criminal defendants whose massive court debts kept them cycling in and out of prisons and jails for nonpayment.[269]

For policymakers, using fines and fees to keep governments running seemed to be an attractive solution to budget shortfalls.[270] A small fee increase—say, $35 for a public defender[271] or $25 simply for being arrested[272]—appeared inconsequential on paper but could fill big budget gaps when imposed on a large number of people.[273] And in practice too, these seemingly small on-paper costs had devastating reverberations in low-income communities across the country.[274]

Despite the shallow pockets of the people charged, fine and fee revenue appeared to solve some governments’ short-term budget problems. Although overall enforcement costs were high and, in many places, exceeded the revenues that came in,[275] many criminal systems were often still heavily incentivized to continue to impose them. Underlying this incentive is that most of the criminal system entities that benefit from fine and fee revenue to balance their budgets are not burdened by the cost of enforcement; that is, a different entity bears the cost of fee-based debt collection.[276] For example, if a court needs to pay its bills or fund its judges and staff, imposing a fine with the threat of incarceration is an effective mechanism to induce payment. When people fail to pay on schedule, the court does not bear the bulk of the costs of following through on enforcement—prisons and jails do.[277] So a court, judicial district, municipality, or police department may find it quite lucrative to impose fines and fees, even though collecting that debt is expensive for the criminal system as a whole.

Prisons and jails, as the backstop of debt enforcement, cannot pass costs onto other criminal system actors.[278] They cannot threaten to incarcerate already incarcerated people who have outstanding debt. But in the years following the 2008 recession, available state tax revenue across criminal systems declined.[279] In many places, however, corrections spending did not decline, a trend suggesting that governments must have either increased the proportion of their revenues directed toward corrections or found other revenue streams.[280] Prison bank accounts, and the site commissions that come with them, offered one such revenue stream.[281]

In many ways, the timing of the budget squeeze was lucky for prisons: The emergence of financial technology in free-world banking gave prisons the opening they needed.[282] Inmate trust accounts had long been vulnerable to abuse, but the recession, its impact on prisons, and the sudden availability of growing fintech firms that were increasingly taking over many aspects of prison life gave prisons an easier way to siphon off savings and convert it to prison budget revenue.

Getting an aggregate picture of the scale of revenues from inmate trust accounts is practically impossible. Corrections annual budgets generally do not include these revenues, at least not in any readily identifiable line item.[283] Moreover, the types of deductions are widely varied. The money deducted goes into different pots of government revenues, and various government budget documents may not clearly identify where the money is going. But some budget documents can paint a partial picture. In Kansas, incarcerated people are charged an array of fees and fines that are deducted from their inmate trust accounts.[284] One fee, among many, is payment to a crime victim compensation board.[285] In fiscal year 2021, the victim compensation fee produced $584,587 from prison wages and another $334,160 from a combination of parole supervision fees and administrative fees assessed to incarcerated people “for maintenance of their trust accounts.”[286] Given the vast array of fines and fees charged to people in Kansas, the overall revenues for the state are certainly significant.

Despite its heavy impacts, the 2008 recession did not create, so much as it fueled, the fine and fee system in place today. In other words, the fee-based wealth extraction that followed the recession was not a new phenomenon. The longer history of criminal debt began well before the recent rise of mass incarceration:

Monetary sanctions can be traced to the colonial era with multiple rationales, such as punishment for a crime, repayment of a debt, a tool to hold criminalized persons responsible as users of court resources [], and a strategy to restrict movement by coercing the poor and working classes, and black and Indigenous communities into a cycle of enslaved and indentured labor[].”[287]

Criminal systems have long been a source of revenue and profitable labor for public and private entities, and criminal punishment became a critical tool for the preservation of white economic interests with the enactment of the Black Codes after the Civil War.[288] Laws against offenses like vagrancy were used to preserve racial subjugation by imposing steep fines for minor or vaguely worded offenses.[289] Systems of convict leasing served private economic interests in ways that mirror some privatized prison labor practices today[290] and was critical to American economic growth. “Revenues from the neo-slavery poured the equivalent of tens of millions of dollars into the treasuries of Alabama, Mississippi, Louisiana, Georgia, Florida, Texas, North Carolina, and South Carolina. . . .”[291] Labor profit depended on continued incarceration, and continued incarceration depended on a system of wage-and-debt accounting that constantly charged individuals for costs of incarceration that kept them in indefinite bondage.[292]

These short and long histories are the context in which the prison banking system arose and now exists. In other words, prison banking does not represent an isolated case of institutional mismanagement in need of a basic correction, but is instead part and parcel of a massive, multi-generational extraction of wealth from over-criminalized communities and a transfer of that wealth to state and private profiteers.

This background is critical to understanding the distinct features of prison-based asset seizure and challenges for abolition or reform. While transparency and oversight are far from perfect when it comes to criminal debt outside of prison, it is nearly impossible to get accurate and complete information about what is actually happening with asset seizures from prison bank accounts.

Moreover, the low transaction costs of prison-based asset seizure not only make the environment ripe for abuse but also more difficult to change. The progress made on fines and fees in many spaces depends on convincing stakeholders either that fine and fee systems are revenue-neutral, costing taxpayers more to enforce than the revenue that is raised, or that alternative revenue streams are available.[293] The reason fines and fees are not lucrative for many state and local governments is that the enforcement costs are extremely high; significant government resources are devoted to tracking debt, sending notices to debtors, issuing arrest warrants for nonpayment, conducting hearings for nonpayment, and arresting and incarcerating individuals for nonpayment.[294] To the extent that prosecutors, city attorneys, public defenders, judges and court personnel are involved at any of these stages, the costs are even higher.[295]

By contrast, taking money out of a prison bank account requires little more than a few keystrokes of a computer. Commissaries pay for themselves and more, as do fintech contracts.[296] To the extent that court resources are involved, it is often only to dismiss incarcerated people’s pro se lawsuits on procedural grounds.[297]

B.     Inmate Trust Accounts Today: Forms of Asset Seizure

Inmate trust accounts are easy targets for seizure by prison administrators and other government officials. When budgets tighten and governments have exhausted other means to extract fine and fee revenue from poor criminal defendants, prison bank accounts offer an easy and accessible revenue stream.[298]

Asset seizures come in many forms, some legal,[299] others illegal,[300] and many somewhere in between.[301] The differences between these three categories are not always clear. What may be a legal asset seizure under one state’s laws may be illegal in another, and meritorious challenges to certain practices may not be adjudicated if a lawsuit is dismissed on other grounds. A practice that may be legal under one set of laws may be arguably illegal under a different, but also applicable, set of laws. This Part does not aim to categorize any particular activity by prisons as illegal or legal, but rather simply offers a taxonomy for understanding how money disappears from inmate trust accounts.

Prison systems seize funds from inmate trust accounts in the following ways:

1.     Unilaterally Establishing Prison Costs for Goods and Services and Deducting These Costs from Individual Accounts

Some of the in-prison costs that are charged to inmate trust accounts may appear routine, such as charges for commissary items like candy, extra clothes, paper and pens, radios, or tablets. But many costs are for items that people might assume to be free of charge in a prison: water,[302] toilet paper, deodorant, essential clothing items, and more.[303] Because many prisons do not provide sufficient calories in their cafeteria portions, the largest category of commissary purchases is food, at inflated prices.[304] Prisons also charge co-pays for every medical request, including for something as simple as an over-the-counter pain reliever for headaches.[305] While prisons may say that they do not deny care to individuals with zero-dollar account balances, the debt is recorded and is repaid as soon as the individual has funds in their account.[306] In particular, when it comes to necessary commissary and medical costs, prisons have a powerful incentive to add a significant markup.[307] They have a captive market that offers purchasers no alternative spending options.[308]

Outside of medical payments and commissary purchases, there are many other ways that in-prison costs can accumulate. Some prisons assess fines and restitution payments for disciplinary infractions that occur in prison.[309] Other costs are for opportunities that the public may assume are made universally available, like social visits with family,[310] and some prisons are now scanning all incoming mail and charging people for the time they spend reading it.[311]

One of the clearest examples of how prisons can invent or inflate fees for services is in the management of inmate trust accounts themselves. People in prison have no option but to deposit their money in these accounts because there is no other means of purchasing basic necessities. But prisons can impose fees simply for the management of these funds.[312] In a chicken-and-egg-type conundrum, prisons are creating the means for paying costs and then charging costs for the creation of this means.

Prisons and jails have also begun using incarcerated people’s assets to turn a profit by converting their money into pre-paid debit cards upon release, rather than giving them the cash they need and should be entitled to.[313] These cards may carry monthly fees, usage fees, and activation fees, as well as impose fees to check the balance or to attempt a declined transaction.[314] One company, JPay, is under a court order for charging unauthorized fees and repeatedly misrepresenting fee amounts.[315] Such fees drain incarcerated people’s already limited savings and, upon leaving prison, make their financial recovery all the more uncertain.[316]

Prisons impose in-prison fees and costs in two ways: (1) the prison itself establishes and collects costs, with proceeds going directly into prison revenues, and (2) the prison privatizes goods and services and imposes costs through a corporate entity. The first category of charges has traditionally included commissary items in prison-run stores and medical co-pays where the healthcare system itself is operated by the prison. But as prisons increasingly privatize their services, this category of in-prison charges is shrinking.[317] Private companies now charge directly for a wide array of in-prison costs[318] and have contractual agreements with prisons about price-setting.[319] As bilateral parties to a contract, prisons and companies that engage in this price-setting are incentivized to reserve as much profit for themselves as possible. The third-party incarcerated person—not a party to the contract itself so much as a beneficiary—bears the brunt of the price increases. So long as family and friends are depositing money in the accounts, prisons and their corporate partners have every reason to create new costs or increase existing ones.

For example, the pre-paid debit cards issued upon an individual’s release offer lucrative kickbacks to governments for the partnership, effectively drawing money from the prisoners’ own funds and returning it to the prison systems in the form of site commissions or saved costs.[320] Prisons enter these contracts with no incentive to bargain for lower fees and, in fact, are incentivized to do the very opposite: allow the private corporations to draw high fees so they are motivated to provide terms that are profitable for the government agency.[321]

Contracts for privatized goods and services are extremely lucrative for both prisons and companies.[322] JPay, for example, is the main service provider for prison phone calls; internet tablets (used for music, phone calls, and video calls); and, of course, prison banking services (which come with deposit fees, withdrawal fees, and fees for the use of debit cards distributed among people released from incarceration). JPay charges exorbitant above-market fees for these technological goods and services, directs kickbacks to the public entity entering the contract, and reserves the rest of the profit for itself.[323] Professors Mary Fainsod Katzenstein and Maureen Waller described this “rapacious form of poverty governance” by highlighting the practices in Florida, where incarcerated people make an estimated average of two cents per hour and commissary sales produce site commissions between $31–32 million each year.[324]

This type of asset seizure is not a direct seizure because the state does not put money in its own coffers. Instead, the state first routes the money through private companies. The effects, however, are the same: money intended for an incarcerated loved one is diverted to the prison.

2.     Collecting Interest

Inmate trust accounts are pooled accounts held by prisons at a conventional depository institution or, in the case of the BOP, the U.S. Treasury.[325] As with any private banking institution, prisons can hold the funds in interest-bearing accounts or non-interest-bearing accounts. In prison systems that hold funds in interest-bearing accounts, most state statutes divert interest from these inmate trust accounts into funds owned and operated by prisons.[326] When incarcerated people have challenged this practice, courts have come to different conclusions,[327] with some finding that incarcerated people are entitled to the principal in their accounts but not the interest,[328] and others finding that the incarcerated person’s property interest attaches to both.[329]

Some prisons have shifted away from placing inmate trust accounts into interest-bearing accounts altogether. In Young v. Wall, an incarcerated person sued the director of the Rhode Island Department of Corrections (RIDOC) for doing just that.[330] Before it began outsourcing the management of inmate trust accounts, the RIDOC would pool inmate funds, invest them, and then allocate the returns to individuals based on their average daily balances. But then, private vendors persuaded prison officials to “reevaluate the feasibility of paying interest on inmate accounts.”[331] The practice of investing the funds was “scrapped” as a result.[332] In other words, when prisons had to choose between letting incarcerated people keep the interest on their accounts and ensuring no one would get the interest, they chose the latter.[333]

3.     Charging Money for Prison Disciplinary Infractions and Restitution

In 2022, Louis Dixon, incarcerated at El Dorado Correctional Facility in Kansas, responded to a reporter’s inquiry about how incarcerated people spend money:

They charge you fines for everything. They’ve got a little ID they make us wear. If you break it or lose it, $5. If your shirt’s not tucked in, $20. You spit on the sidewalk, $20. You walk on the grass, $20. That’s how they do it in here: They give you money and figure out how to take it back from you. It would have helped me a lot to be able to save up some money. Now I’m just going to get out and go to a homeless shelter.[334]

Kansas’s administrative code puts few limits on prison officials’ ability to impose fines for in-prison disciplinary infractions.[335] Kansas prisons have three classes of disciplinary infractions: Class I includes the most serious offenses, such as fighting or making threats; Class II includes offenses of medium-seriousness, such as gambling (but also includes mere “disrespect” as an offense); and Class III includes the least serious offenses, such as “unsanitary practices.”[336] Fines can be imposed for any of these offenses.[337] Fine amounts are capped at $10, $15, or $20 depending on the class of offense, but there are no caps on restitution.[338]

Kansas is not alone.[339] Oregon, for example, assesses fines of up to $200 for disciplinary violations.[340] New Jersey authorizes deductions of half of prison wages for “assessments, restitutions and fines.”[341] None of these provisions include a requirement that the prison assess the individual’s ability to pay. And immediate access to these funds means that prisons can often help themselves to accounts to recover costs. Moreover, given the broad authority to impose discipline, and the vagueness of administrative provisions, prisons impose restitution and unilaterally decide the cost of damage to property, even where the damage was unintentional or due to natural wear and tear. Restitution amounts are withdrawn directly from inmate trust accounts,[342] and jurisdictions may grant prison officials broad discretion to determine the amounts of restitution.[343]

4.     Diverting Funds to Pay Court Fines and Fees

People in prison frequently discover deductions from their account balances and are told that the funds were directed to a debt that they owed in the form of a court fine, a fee, or restitution.[344] In California, half of all inmate trust account deposits are diverted to restitution[345] and costs to the state arising from the individual’s prosecution.[346] Similarly, Oregon diverts 15 percent of deposits to court debt.[347] In Nevada, before public outcry led the governor to reduce seizures to 50 percent, the prison system unilaterally decided—without apparent statutory authority—to seize 80 percent of all prison wages and deposits and to direct those funds toward victim restitution.[348] New Jersey authorizes a 10 percent surcharge for all commissary purchases to be deposited into the Victims of Crime Compensation Board Account, apparently without regard to any individual restitution already paid by the incarcerated person or the lack of actual victim costs in a particular case.[349]

Sometimes these debts are clearly recorded, and state law authorizes prisons to make deductions from inmate trust accounts to satisfy them. But often the process and the authority for making the deductions is less clear. The debt may not be clearly recorded[350] or clearly legitimate.[351] And, even if the debt is clear, there may be no specific authority for the prison to seize assets to pay it off, particularly where there has been no ability-to-pay determination for the incarcerated person in debt.

In many places, state court debt is surprisingly hard to track, verify, or even pay off. When Florida voters passed a referendum to allow people with criminal convictions to vote, people with convictions who wanted to restore their voting rights found it difficult or impossible to verify whether or not they still had outstanding court debt.[352] This difficulty stems from myriad factors, including that state court debt is imposed by several different actors in the criminal system (e.g., police, probation, parole, prosecutors, public defenders, and courts), notice of fines and fees is not always delivered to the individual, and state court record-keeping makes it impossible for even criminal system stakeholders to figure out whether debt exists and in what amounts.[353]

With such poor documentation of court debt, prison administrators are poorly equipped to assess the instructions or orders that they receive to garnish funds from inmate trust accounts. Even if the debt is clearly recorded, legitimate, and lawfully deducted, the incarcerated individual may have no way of determining that the deducted amount was directed to the proper recipient to satisfy the debt.

5.     Imposing Per Diem Costs of Incarceration

Many prison systems assess a general per diem cost-of-incarceration fee and seize that money directly from individuals’ inmate trust accounts.[354] These charges are designed to cover infrastructure costs, salaries, and all aspects of prison administration and daily imprisonment. The amounts are frequently astronomical for any one individual and can reach millions of dollars for people with long prison sentences. Although only a small fraction of that debt is collectible, some prisons have relied on this massive debt in order to seize significant portions of individual inmate trust account balances.[355]

Although these laws—commonly known as pay-to-stay laws—are only one form of asset seizure, they are particularly pernicious.[356] Because prisons calculate the daily costs of incarceration[357] with minimal transparency, and given that incarcerated people are involuntary “users” of prisons,[358] cost-of-incarceration laws give prisons the ability to deplete a person’s savings with the lowest possible transaction costs. Now with financial technology, prison administrators simply access the online account to move funds.[359]

A state’s characterization of a pay-to-stay law can make all the difference when an incarcerated person sues over the seizure of the funds in their trust account.[360] While Arkansas’s attempt to seize stimulus checks constituted an illegal taking, despite being authorized by state statute,[361] Michigan’s claim to the same funds survived legal challenge because its state law characterized the daily cost of incarceration as a debt.[362]

There are many methods by which prisons and jails can recoup daily costs of incarceration, such as filing a lawsuit, negotiating in the shadow of a lawsuit, and attaching certain assets like lawsuit proceeds and inheritances. The question of whether prisons can recoup costs of incarceration by seizing funds directly from inmate trust accounts depends sometimes on what recoupment methods are authorized by state statutes.[363] In some places, prisons actively monitor account levels so that they can be ready to sue or seize funds from an inmate trust account.[364] But when the statute is silent, courts may still find that the mere existence of the debt authorizes the prison to unilaterally, with no prior approval by any court, help itself to the money.[365]

Legality aside, state methods for recouping costs of incarceration can be objectionable. In Michigan, the individual who challenged the state’s seizure of his stimulus check had applied for stimulus funds because Department of Corrections (DOC) staff urged him to do so—only to have his check then seized by the prison.[366]      In Connecticut, prison officials have used their cost-of-incarceration statute and easy access to inmate trust accounts to avoid paying incarcerated people who successfully sued the DOC over prison conditions.[367] For example, after a man won a $300,000 judgment for a brutal assault he suffered at the hands of a prison guard, the DOC simply paid half of the judgment to itself to cover the cost of his incarceration.[368] Also in Connecticut, officials discovered that an incarcerated individual had received a modest sum from a life insurance policy after the death of his mother. Within weeks of her death, state officials froze the incarcerated individual’s entire inmate trust account to prevent him from spending it, so the prison could seek to recover the cost of his incarceration.[369]

These direct seizures from inmate trust accounts to cover costs of incarceration can form a major revenue stream for governments. At least forty-three states have some version of pay-to-stay laws in place.[370] Over time, as states have experienced fiscal squeeze, such laws have proliferated,[371] offering an easy source of money to replace government revenues that are lost in economic downturn.[372] In 2021, after Nevada began seizing 50 percent of account deposits, the legislature proposed a 25 percent cap. The DOC balked. Because state law required that victim restitution be paid first from these accounts, the 25-percent seizure would leave too little for the prison to take for itself. With this cap on how much of funds could be diverted to cover individuals’ cost of incarceration, the prisons would lose $3 million each year.[373] One law enforcement litigation guidance memo instructs prisons that newly promulgated regulations or enacted statutes can be used to seize assets from inmate trust accounts retroactively.[374] According to this guidance memo, if a state government wanted to seize nearly all funds in its system-wide inmate trust account, it could pass a law that retroactively assesses each person for the entire cost of incarceration.[375]

6.     Embezzlement and Error

Aside from the many legal or quasi-legal ways to seize money from people in prison, prison banking is fertile ground for embezzlement and error. With so little transparency and oversight, a single prison employee with access to inmate trust accounts can siphon off money for themselves or for other institutional actors, especially because errors are difficult to catch.[376]

Even when incarcerated individuals identify errors in their own accounts, correcting them may be impossible. One incarcerated person in Idaho published a newsletter recounting his efforts to track and resolve systemic overcharging for medical costs. He described recent reports from other incarcerated people about erroneous charges for health services delivered by the private health care contractor. In response, he submitted several health services requests to see what costs were draining his account, ultimately discovering a duplicate charge and a charge for an appointment that never took place. Another individual at the facility filed a grievance after their “trust account was charged as many as fourteen times without explanation.”[377] They tried, without success, to get prison officials to fix the problems.

Systemic problems in prison accounting have been evident for a long time.[378] For example, one audit of a Tulsa prison banking system found that record-keeping was so poor that it was impossible to determine how much money, which was at least hundreds of thousands of dollars, had gone missing over a period of several years. One correctional employee admitted to having pocketed $1,000 a month for twelve months.[379] In another example, an Oregon state auditor found that basic precautions against fraud and malfeasance were not in place for the administration of inmate trust accounts.[380] Specifically, the auditor found that certain accounting procedures were lacking, the structure of the system allowed fraud to go undetected for long periods of time, and documentation was inadequate to determine whether transactions were legitimate or fraudulent.[381] Similar large-scale problems have been discovered in Arizona;[382] Albuquerque, New Mexico;[383] Toledo, Ohio;[384] and other places.[385]

C.     Impacts of Asset Seizures

These deductions add up. Amelia Booth, a family member of an incarcerated person, testified before the Nevada legislature about the state’s seizure of her loved one’s inmate trust account funds: “The cost of supporting a loved one in prison is a heavy burden for us, the families and loved ones, to bear. [Nevada Department of Corrections], and by extension, the state of Nevada, have made us a revenue stream.”[386] She listed in detail the various ways that Nevada depleted her monthly deposit of $550 and how her incarcerated loved one’s wages of $15 per month were diverted to pay for room and board and the state victim fund.[387] While working for the prison, her loved one injured himself and had to pay his own medical co-pays.[388] Phone calls to speak with him cost her $300 each month. When the state entered a new contract with a substandard food provider and her loved one lost thirty pounds due to insufficient caloric intake, she began sending him $200 each month to supplement his diet.[389] Every time she made an online deposit for him, she had to a pay a fee of $9.95.[390] Care package items increased in cost about 10 or 20 percent each quarter, and she paid thirty cents for each email and photo she sent.[391] She described the emailing costs as a “very hard thing to wrap my brain around,” because, in the free world, she was accustomed to free email: “I get to send an unlimited number of characters, words, I can include attachments and photos in my emails. . . . [But in the Nevada DOC prison system,] [e]verything adds up.[392] It costs more to send a digital photo than it does to print and send via USPS.”[393]

Another family member of an incarcerated person, Crystal Voight, also discussed how small food portions provided by Nevada DOC forced her to pay the high markup commissary items. Describing her loved one in prison, she wrote: “When he described the amount of food served, it was less than a child’s meal, constituting a small ice cream scoop of eggs, a slice of toast, and a tablespoon of peanut butter for breakfast. I send him $300 a month for food and hygiene, and $100 a month for the phone. . . . When he was on store restriction, he lost almost 20 pounds. A Ramen soup, 30 cents at a regular store, was $1 at the commissary. A packet of tuna that is $1.50 at Walmart is $4.95 on the store list. I am the sole provider for our household and have three children. Every month it is a struggle, to make sure bills are paid and to send him money.”[394]

Yet another family member, Nicole Williams, testified: “When my husband was sentenced, I thought $50 to $100 per month added to our already tight budget would be sufficient in getting him essential items and phone time to call his children, me, his elderly mother and other family members. I was wrong. Food prices are outrageous, 15-minute phone calls go by so fast, and there are fees to add money to your account. . . . Pretty much everything in prison has a cost or fee involved. These include medical co-pays, room and board fees, body retrieval fees that families pay if their loved one passes away in prison, and so on.”[395]

D.    Problematic Features of Prison Banking Systems

Although asset seizures happen in many different ways, they arise out of a common set of features endemic to prison banking systems. These features are: (1) prisons, tasked with overseeing individual accounts, operate with a high degree of conflict of interest; (2) prison banking systems operate with little transparency and oversight; (3) regulations governing the operation of prison bank accounts are minimal; (4) even where a practice violates state law or the Constitution, there is little judicial recourse; and (5) unlike the operational costs of many fine and fee systems, the transaction costs for governments collecting money from inmate trust accounts are exceedingly low.

1.     Conflicts of Interest

Numerous conflicts of interest arise when prisons control the money of a captive market.[396] If prisons had a fiduciary duty with regard to the management of inmate trust accounts, their ability to impose costs and negotiate lucrative contracts that pull money from these accounts would interfere with that duty. A prison can, after all, set any cost for a critical necessity (water or medical care for example), bar people from paying for that necessity out of any fund other than the one the prison controls, and then deduct the full amount from the fund. While the public would balk if prisons charged thousands of dollars for a bottle of water and imposed the cost as a lien on inmate trust accounts, prisons essentially accomplish the same thing when they collect general per diem costs of incarceration.

Privatized goods and services offer financial benefits to prisons that also conflict with any duty they may have to fairly administer inmate trust accounts.[397] The contracts between prison and companies like JPay provide large site commissions to the prisons. Meanwhile, the private firms have wide latitude to set the highest fees they can—for tablets, phone calls, video visits with family, music downloads, money transfers, and more.[398]

Conflicts of interest may arise in other ways as well. The BOP has come under criticism for its self-interested and profit-driven management of inmate trust accounts.[399] Here the allegation is not that the prison is reserving funds for itself, but rather that it is not proactively diverting incarcerated people’s funds to pay for victim restitution.[400] Critics argue that prisons are disincentivized from diverting money to victims because the higher account balances in inmate trust accounts give incarcerated people more capacity to spend money in the commissary. Those commissary profits, and the interest on them, go directly to the BOP to cover salaries and other costs.[401]

2.     Low Transparency and Oversight

The public has little insight into how inmate trust accounts are administered, who has access to them, what the balances are, what can be deducted, and what internal checks might be in place to ensure proper management.[402] Any existing oversight mechanism is entirely internal to the prison. A state’s annual prison budget may contain line items for commissary funds and welfare funds (often some form of pooled asset for the general welfare of incarcerated people, though the term “welfare funds” may be so flexible that the funds can be diverted to general operations) but make no reference to the inmate trust account.[403] Indeed, this practice may have benign motivations: Why include a line item for something that is neither pure revenue nor expenditure? But it underscores the difficulty of tracking, even on a broad scale, how large an inmate trust account is, whether it experiences unusual dips over the years, and, for example, how the fund amount changed (or did not change) with the stimulus checks.[404]

Just as high-level data on aggregate inmate trust accounts across a system is difficult to find, getting information about individual accounts to review historical account balances or irregularities may depend entirely on a prison’s willingness to offer those ledgers. Prisons generally do not keep information related to an individuals’ prison purchases, credits, and deductions as part of their correctional file. And if they do, prisons may choose not to release it.

Fintech firms like JPay complicate this picture even more. While such companies may have full access to detailed information about an individual’s account, they may adopt a policy to withhold that information, even with a signed release or power of attorney.[405]

3.     Minimal Regulation

As explained above, state law rarely defines the contours of incarcerated persons’ property rights and prisons’ obligations when overseeing prison trust funds. Such regulation typically creates several paths for prison systems to access funds and few restrictions on that authority, but it rarely creates enforceable rights of access for individual account holders. Some states offer definitions of inmate trust account that offer no insight into how the fund is managed or what rights and obligations attach to the money. Tennessee law, for example, defines “[t]rust account” as “an inmate’s trust account administered by the department or by a county jail.”[406] Beyond this basic tautology, Tennessee law includes multiple provisions about prisons’ rights to seize money.[407] None of its statutory provisions, however, establish or define any rights of the incarcerated individual to the funds in the inmate trust account.

Together, statutes and regulations offer few parameters on who can access the accounts and for what purpose. As a result, the regulatory oversight of such accounts has been, in many cases, no more specific than the broad application of other areas of law, like procedural due process.[408] The Texas Supreme Court, for example, found that the process for withdrawing funds simply required TDCJ to provide notice to the incarcerated person.[409] To determine what process was due, the court applied the Mathews v. Eldridge test, which requires courts to analyze the risk of erroneous deprivation.[410] The court acknowledged that, in several cases, prisons were withdrawing more money than the incarcerated individuals actually owed.[411] Despite what appeared to be a pattern of financial mismanagement, the court merely imposed a notice requirement—a remedy so minimal that it would offer no relief to the individuals whom the prisons defrauded out of hundreds and thousands of dollars or more.[412]

In short, the state’s statutes and regulations offer little guidance about the specific legal relationships between the incarcerated person and the fund, the prison and the fund, and the prison and incarcerated person.

4.     Lack of Judicial Recourse

Incarcerated people face immense hurdles in court when challenging the various ways that prisons siphon off their trust account funds. Prisons can carry out unauthorized deductions for years without challenge, and even when challenged, the timeframe for litigation can be long. In Kansas, corrections officials implemented a new internal policy imposing a fee for every inmate trust account deposit, where none had existed before.[413] Once a challenge finally reached the Kansas Supreme Court on a procedural issue, one justice raised the alarm about the substantive issue in a concurrence. Noting that the new policy “appears to contradict on its face a properly issued administrative regulation, which had the force and effect of law,” the justice wrote:

If so, the Department of Corrections operated for more than 3 years with a practice that siphoned off someone’s money by ignoring its own regulation and depriving both inmates and the general public of a free-of-cost method for sending and receiving money intended for an inmate’s benefit. How can the IMPP trump a lawfully adopted administrative regulation and simply eviscerate it?[414]

There are many reasons that challenging system-wide policy changes can take years. Before individuals can even file a lawsuit against a prison in federal court, they must exhaust all available administrative remedies.[415] But the complicated arrangement of public-private management of inmate trust accounts raises the question of who is accountable for erroneous or otherwise illegal deductions.

This question is harder for incarcerated people and their families than one might imagine. If the individual complains to the prison about, for example, a commissary purchase, the prison administrator may refer them to the corporate firm responsible for the financial transfers, which often is also the firm that sells the item purchased. If someone wants to complain about a defective or undelivered product, an erroneous amount charged, or an otherwise problematic deduction from his or her account, the individual may face difficulties resolving these issues through the private corporation.[416]

Assuming the individual can exhaust their administrative remedies, and setting aside the basic logistical challenges of filing any lawsuit from prison, courts regularly dismiss claims for defects in the pleadings, failure to pay filing fees, filing in the wrong court or under the wrong theory, or sovereign immunity reasons.[417]

Incarcerated people have had little success in arguing for the kinds of substantive protections for their money that would apply outside of prisons. For example, prison officials collecting a debt need not follow the requirements of the Federal Debt Collection Practices Act,[418] and some courts have held that the Takings Clause does not prohibit prisons and jails from keeping the interest on such accounts.[419] Common law claims like conversion and unjust enrichment are rarely raised.[420]

Federal courts have inconsistently described both the property interest individuals have in their prison account funds and the substantive due process principles that attach. While lower courts have clearly recognized that people in prison have a property interest in their trust account funds such that the deprivation of funds triggers due process protections,[421] the Supreme Court’s decision in Sandin v. Connor upended the framework that would have made such protections meaningful. With respect to trust accounts, “Sandin . . . shift[ed] the focus of the inquiry from the language of the regulation to whether the punishment ‘imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’”[422] Previous courts’ “holding[s] that prisoners have a protected property interest in the funds in their inmate trust accounts [are] no longer good law.”[423]

Similarly, the First Circuit, in Young v. Wall, concluded that the Takings Clause did not prohibit the withholding of accrued interest from incarcerated persons. The court explained: “It is clear beyond hope of contradiction that an inmate has a property interest in the balances held in his accounts,”[424] but “[t]he reported decisions of the Rhode Island courts do not offer the slightest indication that the common law creates a property right enabling inmates to demand interest on Rhode Island Department of Corrections-held accounts.”[425] Despite the earlier pronouncement that people in prison have an unequivocal right to and interest in their own property, their funds are understood as both held by the RIDOC and controlled by the private vendor.

Courts add an overlay of penological deference that not only closes off free-world substantive protections but also insulates prison actions from review. Consider Young, where the First Circuit found: “The most jagged rent in the fabric of the plaintiff’s argument is his failure to recognize the highly idiosyncratic context that prison presents.”[426] The court emphasized the limited property rights of incarcerated people throughout history but failed to explain how lesser rights justified diverting their property to the prisons.

Even when an individual has a substantively strong claim, their path to getting into court is narrow and full of obstacles. Courts dismiss many lawsuits alleging mismanagement of prison bank accounts for failure to abide by the procedural requirements of the Prison Litigation Reform Act.[427] Once the claimant spots the banking error and ascertains whether the prison or the company is responsible, the claimant must exhaust all administrative remedies before they may challenge the seizure in court.[428] In many places, the multi-step process is labyrinthine, and each denial has a quick turnaround time for refiling or appealing.[429] For instance, in a case where the Nevada Department of Corrections garnished veterans’ benefits from a trust account fund, the Ninth Circuit concluded that the garnishment violated federal law. However, because the plaintiff had not exhausted his administrative remedies—referring to a four-stage grievance process—the court granted summary judgment in favor of the correctional department.[430]

Finally, the doctrine of qualified immunity has kept many trust account claims out of court. Balancing the need for public accountability with the need to protect corrections officials from “harassment, distraction, and liability when they perform their duties reasonably,” the Supreme Court applies qualified immunity “regardless of whether the government official’s error is ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.’”[431] Precluding relief where there is a mistake in law is especially problematic given the minimal regulation of trust accounts. Because statutes and regulations are silent on the several ways that prisons might seize or divert funds, corrections officials have a broad ability to commit “mistakes of law” through the many forms of asset seizure listed above, leaving people with little recourse for recovering their money.

These barriers to judicial recourse are not accidental. Americans for Effective Law Enforcement is an organization whose goals are to enhance “the criminal justice community and to reduce potential criminal and civil liability of criminal justice professionals and their employers.”[432] It distributes monthly legal memos outlining the limits and scope of law enforcement liability, and its 2008 memo “Legal Issues Pertaining to Inmate Funds” instructs corrections officials that any valid court order for payment permits the prison system to withdraw funds from an individual’s account.[433] Moreover, the memo takes the position that, if an order for payment does not contain a payment schedule, debt is “collectible immediately” with no requirement for ability-to-pay determinations or processes for determining the legitimacy of the debt.[434] In other words, this law enforcement litigation guide gives prisons carte blanche to take on the role of debt enforcers for any debt that a person in prison may owe. While, in theory, the examples listed focus on debts related to criminal system involvement, under the memo’s reasoning, prisons can decide to become debt collectors on behalf of all kinds of creditors. The memo offers something of a roadmap, detailing the various rationales for seizing funds directly from trust accounts and identifying asset targets: pension funds belonging to people in prisons,[435] inheritances and life insurance proceeds from deceased loved ones,[436] disability pension payments,[437] veterans’ disability payments,[438] and already meager prison wages.[439]

A more systematic and structural barrier to accessing the courts is at play as well. To sue a prison over its mismanagement of prison bank accounts, an incarcerated individual must pay a filing fee—which must, of course, be deducted out of the prison bank account. But where an individual has stacked debts that leave their prison bank account in the red, prison staff may prioritize paying other debts over filing fees. When prisons pay other debts, rather than the individual’s filing costs, out of incoming funds, the court can then dismiss the lawsuit for failure to pay the filing fees. The Court in Sultan discussed this exact issue:

We note, however, that there is actually a systemic problem in prison lawsuits like [Petitioner’s]: the law requires the payor (the prison) to process a drawer’s request for payment to permit the drawer to sue the payor. No such conflict of interest plagues ordinary commercial transactions. Even assuming that the prison is willing to put the court’s order for payment somewhere in the queue of [Petitioner’s] creditors, it is entirely predictable that the prison will prefer to postpone [Petitioner’s] ability to pursue litigation against itself.[440]

While courts may allow these suits to go forward because they recognize that such a maneuver by prisons derives from a conflict of interest,[441] such a tactic nevertheless requires that the incarcerated individual devote additional litigation resources and skills, that they may not be able to deploy, to both document the prisons’ actions and competently assert their challenges to the filing fee practice.

5.     Low Transaction Costs

Unlike other fee systems, a prison incurs few or no transaction costs when deducting fees from inmate trust accounts and diverting the money to itself, because prison officials have full access to the trust accounts.

In 2019, the Brennan Center issued a report from a multi-jurisdictional study of the costs of recovering fines and fees from criminal defendants.[442] This long-awaited study confirmed what many had long suspected: “Fees and fines are an inefficient source of government revenue.”[443]

The report lays out in detail why recovering criminal debt is so expensive for governments. Many jurisdictions jail people who fail to pay their debts, a practice that imposes significant costs to the system and devotes additional resources to collections.[444] But the true cost of enforcement is certainly higher and impossible to determine: “Among the costs that often go unmeasured are those of jailing, time spent by police and sheriffs on warrant enforcement or driver’s license suspensions, and probation and parole resources devoted to fee and fine enforcement.”[445] The process for collecting small sums of money from any one person can be time-consuming, requiring multiple hearings to assess payment status (which require the labor of judges, prosecutors, defense attorneys, and court staff); extensions of probation and parole; administrative efforts to set up payment plans; the issuance and execution of arrest warrants for failure-to-pay; and incarceration. Unsurprisingly, the Brennan Center has found that attempting to collect on such debts is, for many jurisdictions, fiscally irrational.

Compare this process with the procedure for collecting court debt or in-prison costs from trust accounts, by which the entity imposing and collecting the fee has immediate electronic access to the funds.[446] With such small transaction costs, there are few brakes in place to stem the imposition and enforcement of a growing array of costs.

E.     Change Resistance

The current system is change-resistant simply because the practice of managing incarcerated people’s funds defies straightforward legal categorization. In the heavily siloed American legal regime that depends on and reinforces the boundaries between categories of law, courts often address marginal questions of which area of law applies to a given set of facts. But when it comes to prison bank accounts, whose legal essence is inconsistently defined or undefined altogether, reforming the way they operate means looking to best practices for a legal category that simply does not exist. Without a clear legal framework to assign to prison bank accounts, courts revert to a default legal framework that is simply “penology.”[447]

III. The Paths Forward

There are two options for undoing a system that makes current abuses of prison banking seemingly inevitable: (1) increase regulation by introducing free-world law and other regulations, oversight, and transparency into prisons; or (2) abolition—that is, to take banking out of prisons entirely.

A.     Increasing Regulation, Oversight, and Transparency

The first set of answers comes from basic principles of oversight and regulation that protect people’s ability to maintain and manage money in their daily lives outside of prison. These principles derive from other areas of law, including banking, consumer protection, trust, antitrust, and the like. To be sure, introducing regulation into prisons poses significant challenges, and efforts to apply non-carceral law to inmate trust accounts have not gained significant traction.[448] But simply illuminating the problems of prison banking can and should invite more sustained attention to regulating it.

Exploring each area of free-world law that could apply to the companies administering trust accounts is beyond the scope of this project. Instead, this Article has a narrower focus by addressing the precise function of inmate trust accounts: although banks perform multiple functions, trust accounts really do only one thing, which is to operate as a payment system.[449] Unlike banks, non-bank payment systems offer no access to credit or advisory services[450] (activities that warrant their own layers of regulation). And the intersection of payment system regulation and consumer protection is far narrower than the broader field of consumer law.[451] Looking at payment system regulation alone, therefore, provides some window into how these other free-world areas of law can make trust accounts operate more fairly.

The Consumer Financial Protection Bureau is well-positioned to regulate and oversee some discrete aspects of privatized prison payment systems[452] and has in fact done so. In 2021, the CFPB Director Rohit Chopra issued a statement regarding its enforcement action against JPay, announcing penalties for “engaging in unlawful conduct that targeted people released from the corrections system, siphoning off taxpayer-funded benefits and people’s own hard-earned money in the process.”[453] The CFPB took enforcement action against JPay because of the company’s requirement that people released from prison receive their unspent trust account funds on debit cards that carried higher-than-normal fees.[454]

The CFPB’s action against JPay targeted several problems: the company’s abuse of its market dominance, its manipulation of protected government benefits that people received while in prison but were forced to transfer to debit cards, its imposition of fees that violated cardholder agreements, and its misrepresentation of debit card fees to as many as 176,000 consumers.[455]

This measure was significant but also illustrates that applying existing regulations to private companies can only go so far in reining in prison banking abuses.[456] The CFPB relied on the Electronic Funds Transfer Act[457] and the Consumer Financial Protection Act[458] to penalize JPay, but these laws focus on the private providers of financial products.[459] While companies like JPay are willing participants in exploitative prison banking practices, the prisons themselves are the central actors in a system in which JPay can take advantage of a vulnerable and captive market.

Where existing financial regulation falls short, trust law offers promising avenues to target the current system’s more structural weaknesses: prisons’ conflicts of interest, minimal transparency and oversight, and easy and direct access to the funds. While other property concepts like custodianships and bailments have surfaced in state law and litigation concerning inmate trust accounts,[460] trust law most naturally applies to the structure of prison banking systems.

It is no accident that the most common term for these accounts is inmate “trust accounts.” Although the term “trust” can mean different things in different contexts, and the legal definition of this trust is distinct from a trust under government accounting standards, both concepts carry important safeguards for protecting money held for the benefit of another. Inmate trust accounts fit the definition of a legal trust: “a fiduciary relationship with respect to property, arising from a manifestation of intention to create that relationship and subjecting the person who holds title to the property to duties to deal with it for the benefit of charity or for one or more persons, at least one of whom is not the sole trustee.”[461] While not all governments will agree a priori that a fiduciary obligation exists, the federal government has acknowledged that it has a fiduciary obligation toward federal inmate trust accounts.[462] It would be hard to argue in any event that a government has absolutely no protective duty toward the funds in inmate trust accounts and that the government can seize the funds at will.[463]

The Federal Court of Claims has acknowledged that trust law in the free world would prohibit the federal government from administering inmate trust accounts as it currently does. In response to a claim that a prison’s “Inmate Financial Responsibility Program” violated trust law because it coerced payment out of accounts,[464] the court found: “While it would almost certainly be coercive for a private trustee to prevent a beneficiary from spending money from any source, or to interfere with a beneficiary’s ability to secure employment, the loss of such liberties is the point of imprisonment.”[465] The court also acknowledged that “[i]f private trustees were to treat a beneficiary as if he were an inmate, this would undoubtedly be coercive, but that is the starting point of [the] [P]laintiff’s relationship with the BOP.”[466] While the court recognized that the government played a “fiduciary role,” it found that the prison setting changed the nature of that role.[467] As compared to private trustees, the court explained, governments play a different role as fiduciaries. But the court refrained from defining the exact contours of the government’s protective role toward these funds.[468]

The Federal Court of Claims has since reiterated that the BOP does carry a fiduciary obligation towards incarcerated people, but it has not addressed how this role can coexist with a coercive government program that extracts funds from accounts to pay the BOP and others.[469] Other courts have been willing to apply basic trust principles to inmate trust accounts.[470] In North Carolina, an appellate court reviewed a decision of a state commission that adjudicates damages claims against the state. The commission found that prison officials had breached their fiduciary duty with regard to inmate trust accounts when they deducted a ten-dollar administrative fee from the petitioner’s account.[471] On appeal, prison officials did not challenge the commission’s application of trust principles.[472] Similarly, in Wisconsin, a federal court found that both the incarcerated person’s savings account and spendable account were “trust fund accounts, since the funds in them are held by the prison in trust for [Petitioner].”[473]

In Kansas, an incarcerated person sued the Kansas Department of Corrections and others over alleged mismanagement of his trust account, specifically disputing certain deductions under the Kansas Uniform Trust Code (KUTC).[474] On the sole issue of venue, corrections officials argued that Kansas trust law could not apply because the plaintiff’s trust account was not a true trust. The Kansas Supreme Court, however, had “no difficulty finding the plain language of the applicable statutes establishes [that] the [prison] trust fund is, in fact, a trust subject to the KUTC.”[475]

That the trustee is the government should not fundamentally change the character of the trust relationship between prisons, the people in their custody, and their money. Basic trust principles can and should be applicable to the type of trust accounts that prisons operate.[476]

Under basic government accounting standards, governments do carry certain fiduciary obligations when it comes to inmate trust accounts, and governments have a structure and a set of accounting standards that should naturally apply.[477] For example, “fiduciary funds” are a class of funds that governments commonly operate and include such things as pension plans.[478] Governments also abide by well-recognized principles governing how to operate fiduciary funds,[479] and they have basic authoritative standards of accounting that should govern when the government is holding someone else’s money.[480]

The Governmental Accounting Standards Board (GASB), which sets non-binding accounting standards for state and local governments, considers inmate trust accounts to fall under a category of fiduciary funds called “custodial funds.”[481] Though the GASB’s role is advisory and thus state and local governments themselves determine how to administer funds as a fiduciary, a primary objective of the GASB is to lay out how governments can “demonstrate accountability” through financial reporting on fiduciary funds.[482]

Beyond the existing sources of regulation that can be found in financial regulations, consumer law, and trusts, advocacy groups are working to more closely regulate and limit the authority of governments to seize and divert prison trust funds. In Nevada, the Fines and Fees Justice Center targeted an array of fees that made the state one of the most expensive prison systems for incarcerated people.[483] Consequently, the Nevada legislature, in its 2023 session, passed measures that eliminated room-and-board fees, medical co-pays, and commissary markups on hygiene items.[484]

B.     Abolition

The second set of answers lies in an abolitionist strategy of establishing banking systems entirely outside of prison systems for incarcerated people. There are two sides of the abolitionist ethic: the dismantling of a punitive infrastructure and the creation of a non-punitive alternative.[485] While broader abolitionist and de-carceral efforts are often stymied by a lack of political will to create alternatives, the abolition of inmate trust accounts may avoid such opposition. After all, the same financial technology that makes electronic prison banking possible might also render it obsolete.

In other words: What if prisons simply did not have inmate trust accounts? Among the various original rationales for granting prisons control over incarcerated people’s banking capacity, only a few remain relevant today. Accounting for work wages, debts, and fee deductions can be accomplished with outside bank accounts. And access to non-carceral financial technology eliminates the need for any cash exchanges in prison. Further, debt enforcement should be a process strictly governed by the courts and judicial processes that already exist outside of prisons. Prisons need not play a role in debt enforcement at all. Courts should adjudicate incarcerated people’s supposed criminal justice debts—whether for court fines and fees, per diem costs of incarceration, in-prison fines, restitution for disciplinary violations, and other costs—just as they adjudicate debts for people who are not in prison.

If one of the original goals of inmate trust accounts was to create a cashless payment system within prisons, that is now possible without relying on the closed universe of prison banking. Financial technology makes it possible for individuals and their loved ones to order commissary items with a private online bank account. Costs of other goods and services—email, music, medical, phone calls, mail, tablets, social visits, postal mail, and more—can either be eliminated or paid for with outside accounts. Removing prisons’ direct access to incarcerated people’s money will halt the one-way ratchet of price hikes that occur when prices are set unilaterally by prisons and their corporate partners.

Prisons may yet claim that, for security reasons, they need to both surveil and control spending by incarcerated people. But surveillance and control are not the same thing, and prison systems must produce evidence of risk to justify both. Prisons and courts have leaned on tropes about the inherent violence of prisons to justify certain coercive measures. At the same time, they downplay the risk of violence to assuage courts that judicial interference is unnecessary in other cases.[486] “Violence, in short, is real when the state needs it to be.”[487]

To the extent that prisons have security concerns about account balances and spending that are not actively monitored and controlled by prison officials, more robust conversations and literature, illuminating the precise nature of the security threat, are necessary to justify the current prison banking infrastructure. In other words, a small or theoretical risk to security cannot justify the massive, expensive, and harmful status quo, particularly when alternatives have not been explored.

There are reasons to be cynical about abolishing inmate trust accounts. The fintech revolution still leaves many people unbanked, in particular the low-income and at-risk communities that comprise much of the prison population. Eliminating inmate trust accounts altogether, rather than making them optional, would leave many incarcerated people without means to purchase goods and services in prison. And for those with the least resources, the option to use outside bank accounts would be purely theoretical.

Therefore, it remains to be seen whether it would be meaningful to substitute mandatory inmate trust accounts with private online banking, for those who have access to such accounts. This question naturally directs us to the other half of the abolitionist ethic, which is to dismantle a punitive system and create a system of care in its place. The broader problem of financial exclusion remains, whether or not prison banking is regulated by or removed from prisons. Even if inmate trust accounts and a policy allowing people to use outside bank accounts coexist, many people will still have no choice but to use inmate trust accounts if cashless purchasing is required.[488]

In other words, abolition of prison banking does not solve the broader problems of financial exclusion when it comes to payment systems and financial technology.[489] After all, when the COVID-19 stimulus checks were issued, the fee deductions were not just a problem for people in prison but also for all unbanked people in the free world.[490] True financial inclusion for the wider population of unbanked and underbanked individuals requires “structural redesign, rather than market-oriented patch fixes driven by neoliberal ideology.”[491]

As with other abolitionist strategies, eliminating inmate trust accounts requires recognition of systemic barriers both in and outside of carceral spaces. Prison banking is just one aspect of a more expansive system of financial exclusion where payment systems routinely make banking more expensive for poor people.[492]

Other futures are possible, with options such as community banking[493] and public banking options[494] serving as potential alternatives to inmate trust accounts. One proponent of a community banking option for incarcerated people argues that Community Development Financial Institutions offer a viable substitute for inmate trust accounts.[495] Alternatively, a public banking option would allow individuals to make direct money transfers to an individual account within the Federal Reserve, eliminating fees altogether.[496]

Conclusion

Prison banking is a long-standing and under-examined feature of the carceral state. It has evolved into a profit-driven institution that places substantial economic burdens on low-income incarcerated individuals and their friends and family.

Whether the solution is a set of regulatory reforms or the elimination of prison banking systems altogether, the Article’s first aim is simply to urge courts and policymakers to create and evaluate prison banking systems according to the basic principles of money regulation in the free world. Instead of asking if prison banking practices are consistent with penological objectives, courts and policymakers should be finding ways to recognize the property interests that incarcerated people have in their own funds.

From there, courts and policymakers should evaluate any prison banking and purchasing system along the following metrics: Does the system avoid conflicted decision-making by prison officials? Is the system subject to adequate independent financial regulatory oversight that protects the funds of incarcerated people? Are the banking practices transparent, both to incarcerated individuals and their families who are using the banking system and to external evaluators who can review aggregate inmate trust account data for a particular prison or system? Are the procedures for imposing and assessing prison costs against an individual sufficient to ensure both that prison officials are complying with laws for collecting fees and that the substantive debt is valid? Without these basic inquiries, prisons will continue to devise banking systems that effortlessly convert personal funds into public revenues and impose devastating costs on largely poor communities.

By shifting the legal framework away from a purely penological set of questions, this examination of prison banking aims to refocus the conversation on individuals’ rights to access and spend their own money and, until inmate trust accounts are abolished, the carceral systems’ obligations to safeguard the money contained in these accounts. More broadly, this Article challenges the assumption that prisons should play any role in managing the money of people in their custody.

This Article is modest in its normative reach, neither prescribing a particular path nor describing in great detail what proponents of public banking and community banking have already suggested. Instead, this Article offers a comprehensive taxonomy of the inherent features of inmate trust accounts that make them so susceptible to abuse, the various problems that arise in this context, and the history that has allowed this exploitative system to take shape.

Put bluntly, prisons can make trust accounts optional. But the broader goal of this project is to lay the groundwork for a more ambitious, long-term campaign toward abolishing inmate trust accounts altogether and creating a just, equitable substitute outside of the carceral space.[497]

Copyright © 2024 Anna VanCleave, Associate Professor and Director of the Criminal Defense Clinic, University of Connecticut School of Law. My thanks go out to Andrea Armstrong, Bethany Berger, Jenny Carroll, Anne Dailey, Brittany Deitch, Jessica Den Houter, Sandeep Dhaliwal, April Fernandes, Eduardo Ferrer, Brittany Friedman, Justin Iverson, Gabriela Kirk-Werner, John Langbein, Christopher Lau, Da’ee Muhammad McKnight, Dean Mead, Joshua Perry, Stephen Raher, Jenny Roberts, Denise Rock, Nick Shepack, and members of the NYU Clinical Writers Workshop and the Criminal Law and Procedure discussion group at the 2021 Southeast Association of Law Schools annual conference. I owe special thanks to Mumina Egal, Julia Ramirez, and Taylorann Vibert for their incredible research assistance, and to the editors of the California Law Review for all the ways they improved this project: David Beglin, Blair Matsuura, Chloe Law, Matt Veldman, Britta Kajimura, Natalie Giron, and Steph Spear. I am particularly grateful to all of my clients, who have educated me over the years about their experiences with prison banking. All mistakes are, of course, my own.

           [1].     3 Conn. 502, 502 (1821).

           [2].     SOI Tax Stats—Coronavirus Aid, Relief, and Economic Security Act (CARES Act) Statistics: First Round Economic Impact Payment Statistics, Internal Revenue Serv. (June 15, 2022), https://www.irs.gov/statistics/soi-tax-stats-coronavirus-aid-relief-and-economic-security-act-cares-act-statistics#EIP3https://www.irs.gov/statistics/soi-tax-stats-coronavirus-aid-relief-and-economic-security-act-cares-act-statistics#EIP3 [https://perma.cc/CS8N-UAWP].

           [3].     See Rebecca Boone, U.S. Inmates Got Virus Relief Checks, and IRS Wants Them Back, PBS News (June 24, 2022), https://www.pbs.org/newshour/economy/u-s-inmates-got-virus-relief-checks-and-irs-wants-them-back [https://perma.cc/F3ZX-TF5R] (noting that the law did not explicitly exclude people in prison).

           [4].     Id.; see also Jordan Michael Smith, Prisoners Face “Undue Punishment” as the IRS Claws Back Their Stimulus Checks, The Appeal (July 8, 2020), https://theappeal.org/prisoners-stimulus-checks/ [https://perma.cc/4A2Z-PSKQ] (describing IRS efforts to block stimulus payments to people in prison).

           [5].     Frequently Asked Questions About CARES Act Relief for Incarcerated People, Lieff Cabraser Heimann & Bernstein, LLP, https://www.lieffcabraser.com/pdf/CARES_CASE_FAQ.pdf [https://perma.cc/9WTJ-GJD4] (last visited Jan. 16, 2024).

           [6].     One study found that more than one third of families with relatives in prison go into debt to support them and to pay for phone calls and visits. Ella Baker Ctr. for Hum. Rts., Who Pays? The True Cost of Incarceration on Families 30 (2015), https://ellabakercenter.org/wp-content/uploads/2022/09/Who-Pays-FINAL.pdf [https://perma.cc/G33W-2788].

           [7].     Stephen Raher, Since You Asked: Should Incarcerated People Be Receiving Stimulus Payments?, Prison Pol’y Initiative (May 18, 2020), https://www.prisonpolicy.org/blog/2020/05/18/checks/ [https://perma.cc/4CG4-RSLC] (arguing that people in prison should receive stimulus payments).

           [8].     See generally id. (describing economic activity that will be supported by stimulus payments to people in prison, both for individuals who will be released soon and for those who will not).

           [9].     While “inmate” is a disfavored term, it is used here because of the common usage of the technical term “inmate trust account.” See Stephen Raher, The Company Store and the Literally Captive Market: Consumer Law in Prisons and Jails, 17 Hastings Race & Poverty L.J. 3, 11 (2020) (“The funds are held by the correctional facility in a pooled deposit account, typically referred to as an ‘inmate trust account.’”); Sean Kolkey, People over Profit: The Case for Abolishing the Prison Financial System, 110 Calif. L. Rev. 257, 269–70 (2022).

         [10].     Account Deposits, N.Y. Dep’t of Corr. & Comm’y Supervision, https://doccs.ny.gov/account-deposits [https://perma.cc/LVB4-QB2U] (last visited Jan. 19, 2024).

         [11].     See infra Part I.D (describing the statutory and regulatory frameworks for administering inmate trust accounts).

         [12].     Id.

         [13].     Id.

         [14].     See Idaho Dep’t of Corr. Standard Operating Proc. 114.03.03.011 2–7 (2016), http://forms.idoc.idaho.gov/WebLink/0/edoc/283025/Inmate%20Trust%20Account.pdf [https://perma.cc/54H6-5DC9] (listing officials involved in processing inmate trust account transactions, including administrative financial officers, mailroom officers, financial technicians, and receptionists).

         [15].     See Aaron Littman, Free-World Law Behind Bars, 131 Yale L.J. 1385, 1415­–17 (2022).

         [16].     See Consumer Fin. Prot. Bureau, Justice-Involved Individuals and Marketplace 20–21 (2022), https://s3.amazonaws.com/files.consumerfinance.gov/f/documents/cfpb_jic_report_2022-01.pdf [https://perma.cc/Q2CG-KAQT]; Joseph Neff & Keri Blakinger, Prisoners Won the Right to Stimulus Checks. Some Prisons Are Standing in the Way, Marshall Proj. (Oct. 21, 2020), https://www.themarshallproject.org/2020/10/21/prisoners-won-the-right-to-stimulus-checks-some-prisons-are-standing-in-the-way [https://perma.cc/NG8Z-GJPW].

         [17].     Consumer Fin. Prot. Bureau, supra note 16; Asher Stockler & Daniel Moritz-Rabson, Prisons Are Skimming Chunks Off CARES Act Stimulus Checks, Intercept (Feb. 17, 2021), https://theintercept.com/2021/02/17/stimulus-checks-cares-prisons-skimming-irs/ [https://perma.cc/A6JH-YL8T]; Neff & Blakinger, supra note 16.

         [18].     Hayes v. Graves, No. 4:21-CV-00347-LPR, 2022 WL 822881, at *2 (E.D. Ark. Mar. 16, 2022).

         [19].     The law applied to subsequent federal stimulus payments as well, and so checks distributed under the Consolidated Appropriations Act, Pub. L. 116–260, 134 Stat. 1182 (2020), and the American Rescue Plan Act, Pub. L. 117-2, 135 Stat. 4 (2021), were also seized. See id. at *3.

         [20].     Id. at *2.

         [21].     Id. (The “inmate welfare fund” is defined as “a special fund to be administered and used . . . for the general benefit of the inmates.”).

         [22].     Lamar v. Hutchinson, No. 4:21-cv-00347-LPR, slip op. at 22–23 (E.D. Ark. Sept. 3, 2021) (granting preliminary injunction in part and describing state’s position as “dystopian, Orwellian, Kafkaesque”).

         [23].     See Moore v. Washington, No. 1:20-CV-1184, 2021 WL 508304, at *4 (W.D. Mich. Feb. 11, 2021); see also Angie Jackson, Why Michigan Is Trying to Take Some Prisoners’ Stimulus Checks, Detroit Free Press (Apr. 14, 2021), https://www.freep.com/story/news/local/michigan/2021/04/14/michigan-prisoner-stimulus-checks-covid-coronavirus/4818300001/ [https://perma.cc/TWA3-4RP5]. Although Michigan law does not specifically permit direct seizure from an inmate trust account and the state Attorney General indicated that garnishments were occurring through a judicial process, Moore’s complaint suggests that the funds were taken directly from his inmate trust account. See Complaint, Moore v. Washington, No. 1:20-CV-1184, 2021 WL 508304, at *3 (W.D. Mich. Dec. 10, 2020) (“Payment were garnished, recouped by design by [the Michigan Department of Corrections] using a policy directive to reimburse in 100% percent [sic] for debts to further his destitute state. . . .”).

         [24].     Moore, 2021 WL 508304 at *1.

         [25].     Michigan law allows for “secur[e] reimbursement to the state of the expenses incurred by the state for the cost of care of certain prisoners in state correctional facilities. . . .” Mich. Comp. Laws Ann. § Ch. 800 (West). See also Mich. Comp. Laws Ann. § 800.401a(b) (Westlaw through P.A.2024, No. 35) (defining “cost of care”). State law appears to require a court order in order for the state to seize funds, see Mich. Comp. Laws Ann. § 800.404 (West, Westlaw through P.A.2024, No. 35, of the 2024 Reg. Sess., 102nd Leg.), but a statewide prison policy appears to authorize the prisons to redirect the money to pay for “institutional debts.” See Moore v. Washington, No. 1:20-CV-1184, 2021 WL 508304, at *2–4 (W.D. Mich. Feb. 11, 2021) (quoting policy at length, detailing the circumstances in which prison officials may remove money from an incarcerated person’s trust account and when a court order is required).

         [26].     See Jackson, supra note 23 (quoting an incarcerated person who said, “The amount of money that they’re going after in my case is like peanuts. . . . [I]t’s not like I’m holding money in the Cayman Islands”).

         [27].     Moore, 2021 WL 508304 at *4.

         [28].     See infra Part II.B.1 for examples of costs for goods and services in prison.

         [29].     See infra Parts II.B.3 and II.B.4 for descriptions of how prisons divert funds to pay for court debts, such as court fees, fines imposed as penalties, and restitution.

         [30].     See infra Part II.B.5 for a description of how some jurisdictions require individuals to pay a daily fee to cover general, per diem costs of incarceration. For a description of how prisons justified taking COVID-19 stimulus funds under these various rationales, see Stockler & Moritz-Rabson, supra note 17.

         [31].     Tom Banse, Prisoners Eligible for Stimulus Checks, But Getting Payout Behind Bars Is Complicated, Or. Pub. Broad. (Mar. 3, 2021), https://www.opb.org/article/2021/03/03/prison-stimulus-checks-inmate-relief-money-oregon/ [https://perma.cc/5JAS-GBC3].

         [32].     Id.

         [33].     Some states have legislatively authorized certain deductions from inmate trust accounts to satisfy certain debts, though prisons may not make these policies transparent to people in prison or to the individuals making the deposits. Mary Fainsod Katzenstein & Maureen Waller, Taxing the Poor: Incarceration, Poverty Governance, and the Seizure of Family Resources, 13 Persps. on Pol. 638, 642 (2015).

         [34].     See McKinley v. Frentz, No. 17cv0243-CAB (BGS), 2017 WL 2670996, at *4, *5 (S.D. Cal. June 21, 2017).

         [35].     The second and third stimulus payments were passed with restrictions on the ability of governments to garnish the checks to satisfy debts. But some prisons and jails have ignored the restrictions or applied an unsupported and narrow interpretation of the provisions. See, e.g., Beal v. Davids, No. 1:21-CV-522, 2021 WL 2934835, at *4 (W.D. Mich. July 13, 2021) (describing correctional policy that prohibited garnishing the second stimulus payment to satisfy debts and plaintiff’s allegation that Michigan Department of Corrections seized the payment anyway).

         [36].     See infra Parts II.D.2, II.D.3, and II.D.4 for discussion of the lack of transparency, oversight, regulation, and judicial recourse when prisons take money from inmate trust accounts, and notes 52–66 for a comparison of regulation and oversight in free-world banking and payments transactions.

         [37].     See, e.g., Cumbey v. State, 699 P.2d 1094, 1097 (Okla. 1985) (analyzing individuals’ property interests in their prison wages and finding that forced savings plan and recoupment of costs of incarceration were lawful).

         [38].     Washburn v. Belknap, 3 Conn. 502, 506 (1821).

         [39].     Id.

         [40].     Id. at 507.

         [41].     See infra Parts II.A and II.B.

         [42].     See infra Part II.D (discussing in detail these problems with prison banking systems).

         [43].     Some media have suggested that, at least at the federal level, prisons are exercising too little control over inmate trust accounts. See Devlin Barrett, Prosecutors Urged to More Aggressively Seize Funds Owed to Crime Victims, Wash. Post (Dec. 5, 2022), https://www.washingtonpost.com/national-security/2022/12/05/justice-dept-prisoner-money-victims/ [https://perma.cc/B9B3-ZEWT].

         [44].     The unequal bargaining power of people in prison makes the lack of oversight all the more troubling. See Raher, supra note 9, at 9–10.

         [45].     For more on just how much is siphoned off, see id. at 20 (“Correctional banking is big business. A rough extrapolation based on a small dataset (from four states) suggests that the principal amount of fund transfers to people in state prison systems could be around $1 billion a year.”).

         [46].     Ariel Nelson, Brian Highsmith, Alex Kornya & Stephen Raher, Commercialized (In)Justice Litigation Guide: Applying Consumer Laws to Commercial Bail, Prison Retail, and Private Debt Collection, Nat’l Consumer L. Ctr. 39 (June 2020), https://www.nclc.org/wp-content/uploads/2022/09/WP_Litigation_Guide.pdf [https://perma.cc/247M-HT7V]. The depository institution may just be a regular, federally insured bank. See, e.g., Nev. Rev. Stat. Ann. § 209.248 (West, Westlaw current through legis. of the 82nd Reg. Sess. (2023) Chs. 1 to 535 (End) and the 35th Spec. Sess. (2023) Ch. 1 (End)) (requiring prisons to establish an account for transactions involving incarcerated individuals’ funds, with disbursements reimbursed by the state treasury).

         [47].     See Raher, supra note 9, at 18–19 (noting that “[h]istorically, [prison] trust accounting has been a mundane subspecialty of government fiscal administration: agencies collected funds in the possession of people who come into custody, received deposits”).

         [48].     Such firms include familiar vendors like JPay, which now provide fee-based services not only for prison banking but also for phone fees, tablets, internet access, and e-messaging. See id. at 16. For a detailed survey of prisons’ e-messaging practices, and the complex and often arbitrary pricing structure, see Mike Wessler, SMH: The Rapid and Unregulated Growth of E-messaging in Prisons, Prison Pol’y Initiative (Mar. 2023), https://www.prisonpolicy.org/reports/emessaging.html [https://perma.cc/542D-SMG6].

         [49].     Raher, supra note 9, at 15.

         [50].     Selena Maranjian, The Inmate Trust Fund – Explained, The Motley Fool (July 5, 2017), https://www.fool.com/investing/2016/08/03/the-inmate-trust-fund-explained.aspx [https://perma.cc/Z8HH-CDPK].

         [51].     A trust “is a fiduciary relationship with respect to property, arising from a manifestation of intention to create that relationship and subjecting the person who holds title to the property to duties to deal with it for the benefit of charity or for one or more persons, at least one of whom is not the sole trustee.” Restatement (Third) of Trusts § 2 (Am. L. Inst. 2003). “The term ‘trust’ also includes public funds and public and private pension-fund arrangements in trust form” but may be subject to “the frequent influence of state or federal legislation and special circumstances in limiting the applicability of rules governing private and charitable trusts as stated in this Restatement.” Id. at § 2 cmt. a.

         [52].     See, e.g., Fair Debt Collection Practices Act, Pub. L. 95-109, 91 Stat. 874 (1977) (amended 2010).

         [53].     See, e.g., 12 C.F.R. 9.5I (2023) (“Fiduciary Activities of National Banks”).

         [54].     In 1999, Congress passed the Gramm-Leach-Bliley Act, Pub. L. 106–102, 113 Stat. 1338 (1999). Several agencies, including the Federal Reserve, implemented its provisions with regulations that accompanied the Act. Bd. of Governors of the Fed. Rsrv. Sys., Div. of Consumer & Cmty. Affairs, Consumer Compliance Handbook, Reg. P 1 (2023), https://www.federalreserve.gov/boarddocs/supmanual/cch/consumer.pdf [https://perma.cc/J2GJ-UW97]. The National Credit Union Administration implemented its provisions via 65 Fed. Reg. 31722 (May 18, 2000) (codified at 12 C.F.R. pt. 716, 741). The Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency implemented provisions via 65 Fed. Reg. 35162 (June 1, 2000) (codified at 12 C.F.R. pt. 40, 216, 332, 573). See also 15 U.S.C.A. § 6803 (West) (requiring disclosure of privacy information).

         [55].     Off. of the Comptroller of the Currency, Comptroller’s Handbook, Examination Process, Bank Supervision Process 12 (2019), https://www.occ.treas.gov/publications-and-resources/publications/comptrollers-handbook/files/bank-supervision-process/pub-ch-bank-supervision-process.pdf [https://perma.cc/2PRK-VKC4]. According to the OCC’s Comptroller Handbook:

The OCC examines banks pursuant to the authority conferred by 12 USC 481 (national banks), 12 USC 1463 (FSAs), 12 USC 1464 (FSAs), and the requirements of 12 USC 1820(d). The OCC examines federal branches and agencies pursuant to the authority conferred by 12 USC 3105(c)(1)(C). 12 USC 481 (national banks) and 12 USC 1464(d)(1)(B) (FSAs) authorize OCC examiners to make a thorough examination of a bank, which includes prompt and unrestricted access to a bank’s officers, directors, and employees as well as to a bank’s books, records, or documents of any type. . . . Banks must receive a full-scope, on-site examination every 12 or 18 months. The required full-scope, on-site examination frequency is known as the supervisory cycle. Refer to table 1 for the eligibility requirements for the 18-month supervisory cycle and to the “Full-Scope Examinations” section of this booklet for the OCC’s definition of and requirements for the required full-scope, on-site examination.

(footnotes omitted). The Handbook also contains a detailed appendix describing the full scope of the OCC Examiner’s access to a bank’s books and account records. Id. at 131.

         [56].     Agencies that regulate depository institutions include the National Credit Union Administration, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, and the Consumer Financial Protection Bureau. See Who Regulates My Bank?, Off. of the Comptroller of the Currency, https://www.helpwithmybank.gov/who-regulates-my-bank/index-who-regulates-bank.html [https://perma.cc/84W5-2SW8] (last visited Jan. 11, 2024); Supervision, Consumer Fin. Prot. Bureau, https://www.consumerfinance.gov/about-us/careers/supervision/ [https://perma.cc/BH24-E59C] (last visited Jan. 11, 2024).

         [57].     What We Do, Off. of the Comptroller of the Currency, https://www.occ.treas.gov/about/what-we-do/index-what-we-do.html [https://perma.cc/RE8F-T57R] (last visited Jan. 11, 2024).

         [58].     See generally Off. of the Comptroller of the Currency, Safety and Soundness: Internal and External Audits (2019), https://www.occ.treas.gov/publications-and-resources/publications/comptrollers-handbook/files/internal-external-audits/pub-ch-audits.pdf [https://perma.cc/R4CQ-4DVB] (providing guidance and background information for OCC bank examiners assessing audit procedures).

         [59].     Off. of the Comptroller of the Currency, Asset Management (AM), Conflicts of Interest 1 (2015), https://www.occ.treas.gov/publications-and-resources/publications/comptrollers-handbook/files/conflicts-of-interest/index-conflicts-of-interest.html [https://perma.cc/NM2Z-EWXT] (providing guidance and background for OCC examiners assessing banks for conflicts of interest). According to the Handbook:

Conflicts of interest arise whenever a bank engages in self-dealing and in any situation where a bank’s ability to act in the best interests of its account beneficiaries or clients is impaired. Self-dealing occurs when a bank, as fiduciary, engages in a transaction with itself or related parties and interests. Conflicts of interest may also arise when a bank benefits from undisclosed compensation or receives unreasonable compensation, or when a bank or a bank employee engages in unethical conduct. . . . Bank fiduciaries are not permitted to receive financial benefit from related parties and interests in exchange for delegating fiduciary activities or purchasing products to support the servicing of fiduciary accounts unless

·       the financial benefit is authorized by applicable law,

·       the financial benefit is disclosed in accordance with applicable law, and

·       the decision to delegate to such parties is based on the best interests of the account.

Id. at 1, 7.

         [60].     See, e.g., Press Release, Consumer Financial Protection Bureau, CFPB Takes Action Against Bank of America for Illegally Charging Junk Fees, Withholding Credit Card Rewards, and Opening Fake Accounts (July 11, 2023), https://www.consumerfinance.gov/about-us/newsroom/bank-of-america-for-illegally-charging-junk-fees-withholding-credit-card-rewards-opening-fake-accounts/ [https://perma.cc/WGB3-X75P] (announcing fines imposed on Bank of America by OCC and CFPB for “systematically double-dipping on fees imposed on customers with insufficient funds in their account, withholding reward bonuses explicitly promised to credit card customers, and misappropriating sensitive personal information to open accounts without customer knowledge or authorization”); N.Y. Dep’t of Fin. Servs., Consumer Fee Practices in New York 10, https://www.dfs.ny.gov/system/files/documents/2023/07/rpt_20230714_consumer_fee_practices_nys.pdf [https://perma.cc/5A2Z-NYYQ] (describing sanctions imposed against Bank of America by OCC and CFPB for assessing multiple fees for the same transactions).

         [61].     Off. of the Comptroller of the Currency, Fair Debt Collection Practices Act Examination Procedures (Interagency) 8, 10, 11 (Dec. 2022), https://www.occ.treas.gov/publications-and-resources/publications/comptrollers-handbook/files/fair-debt-collection-practices-act/fair-debt-collection-practices-act-examination-procedures-interagency.pdf [https://perma.cc/Q4M5-D9WA].

         [62].     Off. of the Comptroller of the Currency, Safety and Soundness, Payment Systems 62, 67, 70, 87 (Oct. 2021), https://www.occ.treas.gov/publications-and-resources/publications/comptrollers-handbook/files/payment-sys-funds-transfer-activities/pub-ch-payment-systems.pdf [https://perma.cc/7U5E-SY3M].

         [63].     See generally Off. of the Comptroller of the Currency, Privacy of Consumer Financial Information (Oct. 2011), https://www.occ.gov/publications-and-resources/publications/comptrollers-handbook/files/privacy-consumer-financial-info/pub-ch-privacy.pdf [https://perma.cc/B9ND-PGVT] (providing guidance and background for OCC examiners assessing banks for compliance with federal privacy statutes and regulations).

         [64].     See generally Off. of the Comptroller of the Currency, Garnishment of Accounts Containing Federal Benefit Payments (Apr. 2014), https://www.occ.treas.gov/publications-and-resources/publications/comptrollers-handbook/files/garnishment-of-accts/pub-ch-garnishment.pdf [https://perma.cc/ZYW7-2AXR] (providing guidance and background information for OCC examiners assessing banks for compliance with federal laws regarding garnishment of federal benefits).

         [65].     How to Protect Wages and Benefits from Creditors, Nat’l Consumer L. Ctr. (Nov. 12, 2019), https://library.nclc.org/article/how-protect-wages-and-benefits-creditors [https://perma.cc/R7AK-JDXV].

         [66].     Electronic Fund Transfer Act, Pub. L. No. 95-630 §2001, 92 Stat. 3728 (1978); 12 C.F.R. 1005 (2023); Electronic Fund Transfers FAQ, Consumer Fin. Prot. Bureau, https://www.consumerfinance.gov/compliance/compliance-resources/deposit-accounts-resources/electronic-fund-transfers/electronic-fund-transfers-faqs/ [https://perma.cc/DTZ7-BJ4T] (last visited Jan. 19, 2024).

         [67].     Restatement (Third) of Trusts § 2 cmt. b (Am. L. Inst. 2003).

         [68].     Id. at § 76.

         [69].     Id. at § 77.

         [70].     Id. at § 78.

         [71].     Id. at § 79.

         [72].     Id. at § 77.

         [73].     Id.

         [74].     See generally Littman, supra note 15 (arguing that regulatory law in the free world is part of the body of prison law but that its “protections often recede at the prison gate, for reasons entirely unrelated to security, leaving incarcerated people and carceral institutions in a deregulatory state of exception”).

         [75].     See infra Part I.D.

         [76].     See Orlando Faulkland Lewis, The Development of American Prisons and Prison Customs 1776–1845 with Special Reference to Early Institutions in the State of New York 31 (1922). Some form of prison banking seems to be an almost inherent feature of early jails’ laws, which required people to pay for their own incarceration. See 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. Persps. 921, 922 (2020) (noting that “county-level pay-to-stay fees for jail detention date back to colonial America with British antecedents”).

         [77].     The origins of these practices predate American prison history. See Laura I. Appleman, Bloody Lucre: Carceral Labor and Prison Profit, 2022 Wisc. L. Rev. 619, 626 (2022) (“As early as 1555, however, the British tried to lower the expense of such incarceration by sending such prisoners to private workhouses, where prisoners worked to offset the cost of their confinement and helped supplement the jailer’s salary.”).

         [78].     The Bureau of Prisons (BOP) created a formal banking system in 1930 when the Department of Justice issued a set of circulars detailing how money should be handled. Congress approved the creation of a “Prisoner Trust Fund” and a “Commissary Fund” in 1932. U.S. Dep’t of Just., Fed. Bureau of Prisons, Program Statement No. 4500.12, Trust Fund/Deposit Fund Manual 15 (Mar. 14, 2018).

         [79].     See infra Part II.A. Just as the rationales for inmate trust account policy have shifted to serve various policy objectives, recent scholarship has explored how shifting—and often unfounded—assumptions have similarly driven constitutional prison law. For an example of such scholarship, see Justin Driver & Emma Kaufman, The Incoherence of Prison Law, 135 Harv. L. Rev. 516, 542–66 (2021).

         [80].     “In the colonial era, the penal system required incarcerated persons to perform labor without compensation, and sometimes to pay monetary sanctions, both as part of the punishment and as debt repayment.” Brittany L. Deitch, Estate to State: Pay-to-Stay Statutes and the Problematic Seizure of Inherited Property, 95 U. Colo. L. Rev. 4, 6 (2023) (citing Brittany Friedman, Unveiling the Necrocapitalist Dimensions of the Shadow Carceral State: On Pay-to-Stay to Recoup the Cost of Incarceration, 37 J. Contemp. Crim. Just. 66, 69 (2021)).

         [81].     Washburn v. Belknap, 3 Conn. 502, 502 (1821).

         [82].     Note, State Reimbursement for Prisoners’ Maintenance, 45 Yale L.J. 1301, 1302 n.3 (1936).

         [83].     Lewis, supra note 76, at 9–10; Appleman, supra note 77, at 627.

         [84].     Appleman, supra note 77, at 627.

         [85].     Lewis, supra note 76, at 31.

         [86].     Id.

         [87].     Id.

         [88].     Id.

         [89].     Douglas A. Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II 1–2 (2008).

         [90].     Id. at 1.

         [91].     See id.

         [92].     While incarceration rates ebbed and flowed until sharp increases in the 1970s (see Franklin E. Zimring, The Scale of Imprisonment in the United States: Twentieth Century Patterns and Twenty-First Century Prospects, 100 J. Crim. L. & Criminology 1225, 1228 (2010)), the sheer number of people in prison rose dramatically in the earlier part of the twentieth century. See Prisoners 1925­–81, U.S. Dep’t of Just.: Bureau Just. Stat. (Dec. 1982), https://bjs.ojp.gov/content/pub/pdf/p2581.pdf [https://perma.cc/R86R-7NH9] (finding that state and federal prison populations rose from about 91,000 in 1925 to about 220,000 in 1961).

         [93].     See, e.g., Report on State Charities: Outstanding Indebtedness Is Nearly All Paid During Past Quarter, Marengo Beacon/Republican-News (Marengo, Ill.) (Aug. 31, 1899) (providing accounting of all deposits by family and friends into inmate trust accounts); State Does Well: Board Report Shows Good Condition of Affairs, Alton Evening Telegraph (Alton, Il.) (Nov. 27, 1908) (same).

         [94].     In 1911, a newspaper recounted that Illinois officials were considering setting up depository accounts for prison trust funds. Committee and the Press at Variance, Commercial Appeal 3 (Mar. 22, 1911). News reports about bank failures in the 1930s indicated that prison trust funds were held in some of the failed banks. See Cannot Use Contingent Fund for Purpose, Freeport J. Standard 7 (Feb. 9, 1933). Today, prisons hold inmate trust account funds in depository institutions. See, e.g., Nev. Rev. Stat. Ann. § 209.248 (West, Westlaw through legis. of the 82nd Reg. Sess. (2023) Chs. 1 to 535 (End) and the 35th Spec. Sess. (2023) Ch. 1 (End)) (requiring prisons to establish an account for transactions involving incarcerated individuals’ funds, with disbursements reimbursed by the state treasury).

         [95].     Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund, 19 Op. O.L.C. 129 n.1 (1995) (quoting U.S. Dep’t of Just., Fed. Bureau of Prisons, Program Statement No. 4500.3, Trust Fund Management Manual, ch. 4501 (1989)). For discussion of the role of inmate trust accounts in facilitating a commissary system, see infra Part II.A.

         [96].     Raher, supra note 9, at 18–19.

         [97].     Outside of prisons, payment systems fall into two categories: closed-loop and open. Carol Coye Benson, Scott Loftesness & Russ Jones, Payments Systems in the U.S.: A Guide for the Payments Professional 4–7 (3d ed. 2017). Inmate trust accounts are paradigmatic examples of closed-loop payment systems, which allow for control surveillance of every purchase and expenditure by an entirely captive market. See Leah A. Plunkett, Captive Markets, 65 Hastings L.J. 57, 58–63 (2013).

         [98].     See U.S. Dep’t of Just., supra note 78, at 15; see also Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund, supra note 95, at 128 (describing the origins of the Bureau of Prisons’ Commissary Fund and Inmate Trust Fund).

         [99].     U.S. Dep’t of Just., supra note 78, at 15 (citing U.S. Dep’t of Just., Circular No. 2126, Rules Governing the Control of Prisoner’s Funds at the Several Penal and Correctional Institutions (Aug. 1, 1930)).

      [100].     See Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund, supra note 95, at 128 (citing U.S. Dep’t of Just., Circular No. 2126, Rules Governing the Control of Prisoner’s Funds at the Several Penal and Correctional Institutions, ¶¶ 9–11 (Aug. 1, 1930)); see also Daniel Wagner, Megabanks Have Prison Financial Services Market Locked Up, Ctr. Pub. Integrity (Oct. 2, 2014), https://publicintegrity.org/inequality-poverty-opportunity/megabanks-have-prison-financial-services-market-locked-up/ [https://perma.cc/7VDN-3RT8] (describing the origin of the federal BOP’s commissary system in 1930).

      [101].     See Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund, supra note 95, at 128 (discussing background of inmate trust accounts).

      [102].     Id.

      [103].     See Permanent Appropriation Repeal Act, Ch. 756, § 20(a), 48 Stat. 1224, 1233 (1934) (originally codified at 31 U.S.C. § 725s(a) (1934)).

      [104].     U.S. Dep’t of Just., supra note 78, at 15. More recently, media and Congress have raised questions about whether BOP’s simultaneous operation of the commissary fund and the “Prisoners’ Trust Fund” (now referred to as the Deposit Fund) poses a conflict of interest. See Letter from Sen. Chuck Grassley to Colette S. Peters, Dir., Fed. Bureau of Prisons (Aug. 1, 2022), at 2–3, https://www.grassley.senate.gov/imo/media/doc/grassley_to_bureau_of_prisons_-_commissary_trust_fund.pdf [https://perma.cc/78ZY-KZP5].

      [105].     See Big Shortage Is Revealed by Auditor, Clinton Daily News 1 (Dec. 12, 1947) (describing a canteen coupon system in an account of embezzlement).

      [106].     Id.

      [107].     This lack of transparency stands in contrast to how the federal government has operated military commissaries, which have a dedicated federal agency called the Defense Commissary Agency have been the subject of congressional inquiries and oversight, as well as a two-volume, 800-page history co-written by a dedicated historian at the agency. See Peter D. Skirbunt, The Illustrated History of American Military Commissaries, Vol. 1 The Defense Commissary Agency and Its Predecessors, 1775­–1988 xv, 189, 247, 261, 267, 337, 340 (2008); Peter D. Skirbunt, The Illustrated History of American Military Commissaries, Vol. 2 Since 1989 402, 414, 434, (2008).

      [108].     See Beth Schwartzapfel, Prison Money Diaries: What People Really Make (and Spend) Behind Bars, Marshall Proj. (Aug. 4, 2022), https://www.themarshallproject.org/2022/08/04/prison-money-diaries-what-people-really-make-and-spend-behind-bars [https://perma.cc/7X66-59E9].

      [109].     See Alaska Stat. Ann. § 33.30.017 (West, Westlaw through ch. 1 of the 2024 Second Reg. Sess. of the 33rd Leg.).

      [110].     See, e.g., Chesa Boudin, Trevor Stutz, & Aaron Littman, Prison Visitation Policies: A Fifty-State Survey, 32 Yale L. & Pol’y Rev. 149, 176 (2013) (explaining that New Mexico’s DOC “charges a fee to defray all costs associated with [a] family visit”).

      [111].     Lyle C. May, The Impossible Math Behind Pay-Per-Minute Prison Messaging, Slate (June 19, 2023), https://slate.com/technology/2023/06/prison-messaging-cost-gettingout-gtl-viapath.html [https://perma.cc/7HA4-FLZZ].

      [112].     Id.

      [113].     See Raher, supra note 9, at 9–15 (footnotes omitted); see also Jazmen Howard, Unjustly Enriched Prisons: The Problem with Capitalizing on Captivity, 72 Fla. L. Rev. 127, 136 (2020) (“The commissary system is a prisoner banking service that acts as an automated teller machine between incarcerated individuals and their ‘outside’ contacts.”).

      [114].     See Raher, supra note 9, at 16.

      [115].     See, e.g., Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1195 (9th Cir. 1998) (explaining that for “security reasons,” inmates are “not permitted under California law to possess money while in prison”).

      [116].     Harris v. Ryker, No. 11-cv-133-JPG, 2011 WL 5244682, at *2 (S.D. Ill. Nov. 2, 2011); see also Grubbs v. Bradley, 552 F. Supp. 1052, 1101 (M.D. Tenn. 1982) (“The use of free world money is generally disdained among corrections experts because of the difficulty in controlling activities such as gambling, extortion and the sale of contraband. Officials prefer to use either special ‘scrip’ or computerized accounts which allow greater control of inmates’ funds.”).

      [117].     Bills Planned on Finance Code, Prison Control, Muskogee Daily Phoenix 5 (Feb. 23, 1957).

      [118].     State regulations give some sense of the specific concerns. A Michigan statute, for example, flags certain scenarios in which the prison can freeze an inmate trust account, such as when “the prisoner is involved in any of the following situations:

(a) Is incurring heavy indebtedness to other prisoners.

(b) Is a victim of extortion by other prisoners.

(c) Is using the institutional medium of exchange or store purchases to exploit or corrupt other prisoners.

(d) Is setting up his or her own store.

(e) Is stockpiling store merchandise in his or her cell.”

Mich. Admin. Code r. 791.6639(5) (2023).

      [119].     See Alaska Stat. Ann. § 33.30.201(d) (West, Westlaw through ch. 1 of the 2024 Second Reg. Sess. of the 33rd Leg.).

      [120].     See, e.g., N.Y. Dept. of Corr. & Comm’y Supervision, Directive 2798, Inmate Accounts (Nov. 29, 2017) (prohibiting incarcerated people from opening outside accounts, requiring that they close existing checking accounts, and restricting access to other outside accounts already in existence). Prisons can also control post-release purchasing power by equipping people on parole with debit cards that have geographical and purchasing constraints; this limits their travel and allows for surveillance and control of their activities while on parole. See Keefe Commissary Network, LLC, Original Technical Proposal, W. Va. Div. of Corr. (Apr. 10, 2014), https://www.prisonpolicy.org/contracts/documents.html?text-search-fields=facility-and-remarks&q=&q-state=&q-document-type=&q-service=inmate-banking-software&q-vendor=&sort=state#search-form [https://perma.cc/EMR6-HXZ2].

      [121].     N.J. Stat. Ann. § 30:4–16.4 (West, Westlaw through L.2023, c. 256 and J.R. No. 18).

      [122].     Nev. Rev. Stat. Ann. § 209.241(1) & (2) (West, Westlaw through legis. of the 82nd Reg. Sess. (2023) Chs. 1 to 535 (End) and the 35th Spec. Sess. (2023) Ch. 1 (End)).

      [123].     See U.S. Dep’t of Just., supra note 78, at 87–97.

      [124].     Statutes and regulations often include a catchall provision that allows prison officials to withhold approval for withdrawals for any reason they deem appropriate. See, e.g., Alaska Stat. Ann. § 33.30.201(d) (West, Westlaw through ch. 1 of the 2024 Second Reg. Sess. of the 33rd Leg.).

      [125].     Lewis, supra note 76, at 159.

      [126].     Id. at 167. The author does not explain what this term means.

      [127].     Id. at 159.

      [128].     Id.

      [129].     Id. at 160–67.

      [130].     Id. at 169.

      [131].     Id.

      [132].     See Keefe Commissary Network, LLC, Original Technical Proposal, W. Va. Div. of Corr. 4:43-44 (Apr. 10, 2014), https://www.prisonpolicy.org/contracts/documents.html?text-search-fields=facility-and-remarks&q=&q-state=&q-document-type=&q-service=inmate-banking-software&q-vendor=&sort=state#search-form [https://perma.cc/L692-MU4F] (discussing “data mining” activities and investigative capacity, which includes twelve investigators who monitor 27 percent of activities).

      [133].     In August 2021, news outlets reported that U.S. Department of Justice Deputy Attorney General Lisa Monaco issued a directive to the BOP to enhance monitoring of inmate trust accounts, noting that they were ripe for abuse and corruption. However, the sole allegation about past misuse appeared to be that certain high-profile individuals, like Larry Nassar, had large sums of money in their accounts but had been paying only small amounts of restitution. But none of the reports detailed any criminal activity being conducted with the inmate trust accounts. In fact, Justice Department officials “cautioned [that] there is nothing inherently wrong with an inmate holding large sums of money in their accounts.” Michael Balsamo, Justice Department Bolsters Monitoring of Federal Inmate Accounts, Assoc. Press (Aug. 19, 2021), https://apnews.com/article/sports-428a4c18819103cb9acd1f37ae1d8d45 [https://perma.cc/2FW4-NCKY].

      [134].     Virgil McDorman, The Inmate Council, Paahaao Press, Sept.–Oct. 1951, at 6, 23 (describing the function of the “Inmate Trust Fund” from the perspective of a prison newspaper).

      [135].     There has been some overlap in the concepts of individual accounts and general welfare accounts. See, e.g., Urbano v. Bd. of Managers of N.J. State Prison, 415 F.2d 247, 249 (3d Cir. 1969) (explaining that New Jersey’s welfare fund was partially funded by prison wages until 1968).

      [136].     The BOP, for example, directs a portion of its Commissary Fund proceeds to a “Welfare Fund.” See Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund, supra note 95, at 128.

      [137].     As in California, see Cal. Penal Code § 5006 (West, Westlaw through Ch. 8 of 2024 Reg. Sess.).

      [138].     See Incarcerated Person Welfare Fund Account, Sutter Cnty. Sheriff, CA, https://www.suttersheriff.org/divisions/jail-division/corrections-section/inmate-custody-services/welfare-fund-account#:~:text=The%20Inmate%20Welfare%20Fund%20holds,used%20by%20inmates%20while%20incarcerated [https://perma.cc/A3GR-WTL6] (last visited Apr. 10, 2024).

      [139].     See N.J. Admin. Code § 10A:31-29.3(a) (2017) https://www.nj.gov/corrections/pdf/OCS/N.J.A.C%2010A%2031-Adult%20County%20Correctional%20Facilities.pdf [https://perma.cc/2RKZ-66YD]; Erick Roeser, Internal Audit: Sonoma County Sheriff’s Office Inmate Welfare and Jail Store Trust Funds, Sonoma Cnty. Auditor-Controller-Treasurer-Tax Collector (Oct. 30, 2020), https://sonomacounty.ca.gov/Ektron%20Documents/assets/Sonoma/Sample%20Dept/Sample%20Dept/Divisions%20and%20Sections/Auditor-Controller/Services/Fee%20Based%20Audit%20Reports/_Documents/Sheriff_s%20Office%20Inmate%20Welfare%20and%20Jail%20Store%20Trust%20Funds.pdf [https://perma.cc/V8Z6-KNBZ].

      [140].     See, e.g., Wash. Dep’t of Corr. Policy 200.000 I.a. (2022) (requiring that individuals’ funds be consolidated at a local bank and that the pooled funds “be maintained in: 1. An authorized Federal Deposit Insurance Incorporation (FDIC) financial institution checking account. 2. Non-interest bearing accounts. 3. The Trust Accounting System (TAS)); Cal. Penal Code § 5008 (West, Westlaw through Ch. 8 of 2024 Reg. Sess.) (authorizing Secretary of California Department of Corrections and Rehabilitation to mingle incarcerated individuals’ funds “for the purpose of deposit or investment”).

      [141].     Thomas U. Gage, Not So Trustworthy: What You Should Know About ‘Inmate Trusts,’ Interrogating Just. (Sept. 29, 2022), https://interrogatingjustice.org/ending-mass-incarceration/not-so-trustworthy-what-you-should-know-about-inmate-trusts/ [https://perma.cc/4R5P-DKAJ].

      [142].     See, e.g., Cal. Penal Code § 4025 (West, Westlaw through Ch. 8 of 2024 Reg. Sess.) (authorizing county sheriffs to spend money from the “inmate welfare fund” to be invested or to cover a wide variety of operational costs).

      [143].     But see Miss. Code Ann. § 47-5-158(7)(a) (West, Westlaw with laws from the 2024 Regular, First, and Second Extraordinary Sess. effective through Mar. 19, 2024) (requiring that one member of the nine-member “Inmate Welfare Fund Committee” be a relative of an incarcerated person).

      [144].     W. Va. Code §15A-4-10 (2024).

      [145].     W. Va. Code §15A-4-10(14) (2024).

      [146].     Montana Legislative Audit Division, Inmate Welfare Fund, Department of Corrections, June 2022: Focused Evaluation, a Report to the Montana Legislature 22 (June 2022), https://leg.mt.gov/content/Committees/Administration/audit/2021-22/Meetings/June-2022/22P-03.pdf [https://perma.cc/6UM7-CSP4].

      [147].     Id. at 3–6.

      [148].     See, e.g., Inmate Financial Responsibility Program: Procedures, 88 Fed. Reg. 1331 (proposed Jan. 10, 2023) (to be codified at 28 C.F.R. § 545.11(b)–(d)).

      [149].     Id.

      [150].     According to a BOP program statement, “The management of inmate funds and the operation of the Trust Fund are designed primarily for the benefit of inmates.” U.S. Dep’t of Just., supra note 78, at 16.

      [151].     Inmate Financial Responsibility Program (IFRP), 88 Fed. Reg. 1331 (proposed Jan. 10, 2023) (to be codified at 28 C.F.R. pt. 545).

      [152].     The withdrawal of money to satisfy state court debts is particularly problematic given the poor record-keeping of state entities with regard to criminal system debt and the often uncertain nature and amount of court debt.

      [153].     Inmate Financial Responsibility Program, supra note 151. The notice of the proposed rule change described one IFRP goal as “to support federal inmates in developing financial planning skills.”

      [154].     In some states, even a person serving a sentence of life without parole must maintain a forced savings account. See, e.g., Ariz. Rev. Stat. Ann. § 31-237 (West, Westlaw through legis. of the Second Reg. Sess. of the Fifty-Sixth Leg. (2024)) (highlighting Arizona’s approach to requiring forced savings accounts).

      [155].     See Doty v. Doyle, 182 F. Supp. 2d 750, 751 (E.D. Wis. 2002).

      [156].     Id. at 754; WI Release Fund Can Be Used to Pay Filing Fee, Prison L. News (May 15, 2007), https://www.prisonlegalnews.org/news/2007/may/15/wi-release-fund-can-be-used-to-pay-filing-fee/#case-5440https://www.prisonlegalnews.org/news/2007/may/15/wi-release-fund-can-be-used-to-pay-filing-fee/#case-5440 [https://perma.cc/JN7R-YXJ6].

      [157].     Ellibee v. Simmons, 85 P.3d 216, 219 (Kan. Ct. App. 2004).

      [158].     Nev. Rev. Stat. Ann. § 209.463(7) (West, Westlaw through legis. of the 82nd Reg. Sess. (2023) Chs. 1 to 535 (End) and the 35th Spec. Sess. (2023) Ch. 1 (End)).

      [159].     State of Nevada Governor’s Finance Office Division of Internal Audits, Audit Report, Nevada Department of Corrections, 7 (Feb. 22, 2022), https://budget.nv.gov/uploadedFiles/budgetnvgov/content/IAudits/About/AuditRpts/DIA%2022-05.pdf [https://perma.cc/DRU4-5L2W].

      [160].     A Nevada audit showed that one formerly incarcerated individual had an outstanding balance of $189,000. Id. at 8.

      [161].     Elliott v. Simmons, 100 F. App’x 777, 779–80 (10th Cir. 2004).

      [162].     See, e.g., Minsky v. City of Los Angeles, 520 P.2d 726, 730 (Cal. 1974) (finding that the city acts as bailee in taking money from an arrested person). A Washington statute specifically makes the Secretary of the Department of Corrections the “custodian” of the money belonging to people in prison, Wash. Rev. Code Ann. § 72.11.020 (West, Westlaw through ch. 248 of the 2024 Reg. Sess. of the Wash. Leg.), but the Washington Supreme Court has found that role consistent with the department’s practice of seizing money from accounts to pay itself for general costs of incarceration. In re Pierce, 268 P.3d 907, 915 (Wash. 2011).

      [163].     Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund, supra note 95, at 137–38.

      [164].     Id.

      [165].     U.S. Dep’t of Just., supra note 78, at 15 (explaining that the objective of the original legislation establishing a commissary was to “provide a bank-type account” for incarcerated people and that today, the “purposes remain essentially the same”).

      [166].     Davis v. United States, No. 20-1071, 2022 WL 1618052, at *7 (Fed. Cl. May 20, 2022) (finding that the Court of Federal Claims had jurisdiction in part because plaintiff established the government’s fiduciary obligation with respect to the Prisoner Trust Fund); Davidson v. Fed. Bureau of Prisons, No. 5: 15-351-JMH, 2017 WL 1217168, at *15 (E.D. Ky. Mar. 31, 2017), aff’d, No. 17-5429, 2017 WL 8897005 (6th Cir. Nov. 29, 2017) (finding no fiduciary duty for the commissary fund but contrasting that fund with the fund holding individuals’ monies).

      [167].     See, e.g., Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1201 (9th Cir. 1998) (“We need not attempt to mark out with any precision the contours of property’s ‘core’ meaning.”); Elliott v. Simmons, 100 F. App’x 777, 779 (10th Cir. 2004) (finding that “although Plaintiff possesses a protected property interest in his inmate trust account, prison grievance procedures provide sufficient post-deprivation proceedings to satisfy procedural due process”); Martinez v. Sumner, 9 F.3d 1552, 1552 (9th Cir. 1993) (finding “no question that [Martinez]’s interest in the funds in his prison account is a protected property interest,” but that he did not have “unlimited access to those funds”); Maydak v. United States, 630 F.3d 166, 174 (D.C. Cir. 2010) (applying principles of trust law to the determination of whether plaintiffs had standing as beneficiaries of the trust); Abdul-Wadood v. Bayh, No. 95–1245, 85 F.3d 631, at *1–2 (7th Cir. 1996) (identifying the correctional department as trustee and incarcerated people as beneficiaries but concluding that the property interest extends only so far as state statutory law, in regulating inmate trust accounts, grants rights; because state law diverted accrued interest to a different fund, plaintiffs had no right to it). In Harris v. Ryker, No. 11-cv-133-JPG, 2011 WL 5244682, at *3 (S.D. Ill. Nov. 2, 2011), a district court rejected a plaintiff’s claim that he was entitled to the interest accruing on his funds held in the inmate trust account. The court reasoned:

Because state prisoners possess no constitutional or common-law property rights in funds that come into their hands while incarcerated, such prisoners possess a property interest in those funds only to the exact extent that state statutes or regulations grant them a property interest in monies received during the period of their incarceration.

Harris v. Ryker, No. 11-CV-133-JPG, 2011 WL 5244682, at *3 (S.D. Ill. Nov. 2, 2011). Under this reasoning, however, a state could entitle itself to any amount of money coming into the possession of an incarcerated person, and the district court set no limits on the state’s ability to do so.

      [168].     Randolph v. State, 323 S.W.3d 585, 586 (Tex. Ct. App. 2010) (“They are simply inmate accounts. While there may be a custodial relationship between the Department and the inmate as to the money in the account, an issue not decided by us today, there is certainly no trustee/beneficiary relationship wherein the Department is burdened with all the duties of a trustee with regard to the inmate’s money.”). But see Matson v. Kan. Dep’t of Corr., 346 P.3d 327, 330 (Kan. Ct. App. 2015) (“But we have no difficulty finding the plain language of the applicable statutes establishes the [prison] trust fund is, in fact, a trust subject to the [Kansas Uniform Trust Code].”).

      [169].     Randolph, 323 S.W.3d at 587–88.

      [170].     See, e.g., Young v. Wall, 642 F.3d 49, 53–54 (1st Cir. 2011) (stating that “[i]t is clear beyond hope of contradiction” that an incarcerated individual has a property interest in both the principal balance of their account and the interest already accrued, but holding that there is no property interest in accrued interest following a policy change, and offering no property category—trust, custodianship, sole property ownership, or otherwise—that might help define the limits of the state’s access to those funds).

      [171].     Except Arkansas. See supra notes 19–22 and accompanying text.

      [172].     Several courts have found that incarcerated people have a property interest in the money in their own inmate trust accounts. See, e.g., Young, 642 F.3d at 53; Burns v. PA Dep’t of Corr., 544 F.3d 279, 281 (3d Cir. 2008) (finding that, for purposes of determining whether procedural due process applied, an incarcerated individual suffered a diminished property right when prison officials assessed, but did not yet collect, a restitution payment); Scott v. Angelone, No. 91–16182, 980 F.2d 738, *3 (9th Cir. 1992) (rejecting procedural due process claim regarding medical co-pay deductions, and noting that although incarcerated individuals have a property interest in their inmate trust account funds, that interest is not absolute); In re D.L.D., 374 S.W.3d 509, 514 (Tex. Ct. App. 2012) (affirming foreclosure on child support lien against individual’s inmate trust account but applying procedural due process principles because individual had a property interest in his funds).

      [173].     See John H. Langbein, The Secret Life of the Trust: The Trust as an Instrument of Commerce, 107 Yale L.J. 165, 167 (1997) (“Things such as the Leaking Underground Storage Tank Trust Fund, the Violent Crime Reduction Trust Fund, or the Highway Trust Fund have, at best, only a metaphorical connection to actual trust practice. They are, however, ubiquitous. A computer search of state statutes turned up 677 purported trust funds in Florida alone, including the Citrus Advertising Trust Fund, the Quarter Horse Racing Promotion Trust Fund, and the Florida Law Review Trust Fund.”).

      [174].     Id. (describing the tendency of governments to appropriate the term “trust” to refer to simple government budget line items).

      [175].     Washburn v. Belknap, 3 Conn. 502, 502 (1821).

      [176].     See Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund, supra note 95, at 137–38 (citing U.S. Dep’t of Just., Circular No. 2126, Rules Governing the Control of Prisoner’s Funds at the Several Penal and Correctional Institutions, ¶¶ 9–11 (Aug. 1, 1930)).

      [177].     See, e.g., Burns, 544 F.3d at 280, 285–91 (recognizing an individual’s cognizable property interest as well as a prison’s strong interest as judgment creditor).

      [178].     Banking and Financial Services, Investigate, https://investigate.afsc.org/tags/banking-and-financial-services [https://perma.cc/5SQW-P9R2] (last visited Jan. 15, 2024).

      [179].     See Joe Musco, Automating Inmate Trust Account Funding Saves Time and Money for Correctional Facilities, Am. Jails, Nov.–Dec. 2005, at 83.

      [180].     Today, three financial technology firms dominate the money transfer market for prisons. Consumer Fin. Prot. Bureau, supra note 16, at 18. Most states offer individuals only one choice. Id. Until the arrival of financial technology, family and friends of people incarcerated in BOP were able to make free deposits into their loved ones’ prison accounts, and the U.S. Treasury held the funds for the incarcerated individuals. Wagner, supra note 100. In 2002, Bank of America entered the picture and took over prison banking for people in federal facilities, and financial technology firms across the country began contracting with state prison systems to manage the funds belonging to incarcerated people. See id. (describing high fees, delayed money order transactions, and difficulty reaching customer service).

      [181].     See supra note 163.

      [182].     As Laura Appleman has pointed out, fintech firms like JPay have described their products as streamlining prison banking, but, in fact, they replaced a system that was simple to administer and straightforward—essentially making deposits by money order into existing accounts—into one that is maddeningly opaque and expensive for incarcerated people and their families. See Laura I. Appleman, Cashing in on Convicts: Privatization, Punishment, and the People, 2018 Utah L. Rev. 579, 602 (2022); see also Howard, supra note 113, at 137 (describing how private contractors gain access to inmate trust accounts by negotiating agreements with prisons that allow contractors to collect high fees directly from the accounts).

      [183].     The author was not able to find any contemporary report of the actual balance of prison trust funds in any prison system.

      [184].     Civil garnishment procedures can require more process than seizure of inmate trust account funds. In Ex parte Reno, 360 So. 3d 1112, 1114 (Ala. Crim. App. 2022), attorneys for the state seeking to seize an incarcerated person’s stimulus check moved to amend an early motion to “garnish” the funds. Realizing that civil garnishment procedures would provide more process, they amended the order to simply enforce a criminal court’s restitution order. Id.

      [185].     See Johnson v. Tenth Jud. Dist. Ct. of Apps. at Waco, 280 S.W.3d 866, 874 (Tex. Crim. App. 2008) (laying out the split of authority and finding that the litigation is a civil matter).

      [186].     See Langbein, supra note 173, at 167 (describing the tendency of governments to appropriate the term “trust” to refer to simple government budget line items).

      [187].     Arkansas perhaps being the exception. See supra notes 19–22.

      [188].     Even the state statutory schemes that authorize large deductions to cover overall costs of incarceration mandate that some portion remain in the individual’s account. See Conn. Gen. Stat. § 18-85b(b) (2024), https://www.cga.ct.gov/current/pub/chap_325.htm#sec_18-85 [https://perma.cc/VW3V-NLPQ] (up to 50 percent of an incarcerated person’s inheritance is subject to lien); Nev. Rev. Stat. Ann. § 209.2475(1) (West, Westlaw through legis. of the 82nd Reg. Sess. (2023) Chs. 1 to 535 (End) and the 35th Spec. Sess. (2023) Ch. 1 (End)) (requiring that the director set minimum balance); Nev. Rev. Stat. Ann. § 209.463(3)(a) (West, Westlaw through legis. of the 82nd Reg. Sess. (2023) Chs. 1 to 535 (End) and the 35th Spec. Sess. (2023) Ch. 1 (End)) (barring prison from deducting more than 50 percent of individual’s prison wages to pay various enumerated fees); Nev. Rev. Stat. Ann. § 209.247(3)(a) (West, Westlaw through legis. of the 82nd Reg. Sess. (2023) Chs. 1 to 535 (End) and the 35th Spec. Sess. (2023) Ch. 1 (End)) (indicating that the director may not make deductions for debts that are more than 50 percent of wages or 25 percent of deposits, but the amounts within that 50 percent or 25 percent are up to the director to determine).

      [189].     Inmate Financial Responsibility Program: Procedures, 88 Fed. Reg. 1331, 1334 (proposed Jan. 10, 2023) (to be codified at 28 C.F.R. § 545.11(b)–(d)).

      [190].     Id.

      [191].     See Comment to the Bureau of Prisons Regarding Proposed Changes to the Inmate Financial Responsibility Program, Sent’g Proj. (Mar. 14, 2023), https://www.sentencingproject.org/advocacy-letter/comment-to-the-bureau-of-prisons-regarding-proposed-changes-to-the-inmate-financial-responsibility-program/ [https://perma.cc/B7SE-A6SD].

      [192].     See Brittany L. Deitch, Rehabilitation or Revolving Door: How Parole Is a Trap for Those in Poverty, 111 Geo. L.J. Online 466, 51 (2022) (“In the first year after release, only twenty percent earn more than $15,000.”).

      [193].     See Inmate Financial Responsibility Program: Procedures, 88 Fed. Reg. 1331 (proposed Jan. 10, 2023) (to be codified at 28 C.F.R. § 545.11(b)–(d)).

      [194].     See Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1201 (9th Cir. 1998) (incarcerated people have a property interest in the accrued interest on their accounts). But see Young v. Wall, 642 F.3d 49, 51–52 (1st Cir. 2011).

      [195].     Harrell v. State, 286 S.W.3d 315, 321 (Tex. 2009); In re Doyle, No. 06-08-00094-CV, 2008 WL 4329041, at *2 (Tex. Ct. App. Sept. 24, 2008).

      [196].     Wheeler v. McDonough, 957 So. 2d 94, 95 (Fla. Dist. Ct. App. 2007).

      [197].     Doyle, 2008 WL 4329041, at *2.

      [198].     The term refers to the work of legal philosopher Wesley Newcomb Hohfeld, who disambiguated the concept of rights into eight sets of relationships such as rights, duties, privileges, and liabilities. See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions As Applied in Judicial Reasoning, 26 Yale. L.J. 710, 710 (1917).

      [199].     Burns v. PA Dep’t of Corr., 544 F.3d 279, 280, 285–91 (3d Cir. 2008).

      [200].     Id.

      [201].     Id. at 289 (footnote omitted).

      [202].     The federal statute was passed in 1930 as part of a congressional reworking of Treasury Department authority. A small number of funds, including the inmate trust account, were set aside as being outside of the Treasury’s reach. See Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund, supra note 95, at 130.

      [203].     Every state that has statutes and regulations addressing prison trust funds houses these provisions in the corrections section of statutes and administrative codes. See, e.g., 004-00-20 Ark. Code R. § 89(VI) (LexisNexis 2023); Cal. Penal Code § 1029 (Deering, Lexis Advance through the 2024 Reg. Sess. ch. 1); Conn. Gen. Stat. § 18-101 (2023); Conn. Gen. Stat. Ann. § 18-85 (LexisNexis, Lexis Advance through 2023 Reg. Sess. and Sept. Spec. Sess.); Del. Code. Ann. tit. 29 § 8903 (Lexis Advance through 84 Del. Laws, c. 254); Del. Code. Ann. tit. 11 § 6534 (West, Westlaw Current through Ch. 254 of the 152nd Gen. Assemb. (2023-2024)); Fl. Stat. § 944.516 (2023); Fla. Admin. Code Ann. r. 33-203.201 (Lexis Advance through Apr. 3, 2024); Idaho Code Ann. § 20-209H (West, Westlaw through Ch. 113 of the Second Reg. Sess. of the Sixty Seventh Idaho Leg.); Ch. 75 Ill. Comp. Stat. 125/20 ¶ 120 (2007), https://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=073001250K20 [https://perma.cc/B6AC-CHNP]; 4 Ind. Admin. Code § 24-6-9 (West, Westlaw through July 1, 2023; Me. Rev. Stat. tit. 34-A, § 3039 (2023 Wash. Rev. Code Ann. § 72.09.480 (LexisNexis, Lexis Advance through Mar. 24, 2024). In other cases, however, provisions related to how different entities might recover debts from people in prison are scattered throughout non-correctional statutes and rules. See, e.g., Cal. Civ. Proc. Code § 704.090 (Deering, Lexis Advance through the 2024 Reg. Sess. Ch. 1) (civil code provision exempting inmate trust accounts from certain collections); Colo. Rev. Stat. Ann. § 13-17.5-106 (West, Westlaw through legis. effective Apr. 4, 2024 of the Second Reg. Sess., 74th Gen. Assemb. (2024)) (providing for garnishment of inmate trust account to cover costs and attorney fees in prison conditions lawsuits).

      [204].     See, e.g., 004-00-20 Ark. Code R. § 89(VI) (LexisNexis 2023) (stating that a “system must exist to provide for inmate property control” and identifying topics that the system must address, without including actual rules about access and authority); Idaho Code Ann. § 20-209H (West, Westlaw Ch. 113 of the Second Reg. Sess. of the Sixty Seventh Idaho Leg.) (requiring that the “state board of correction shall establish an account in the name of each inmate” and allowing deductions for restitution); Me. Rev. Stat. tit. 34-A, § 3039(1) (2023) (establishing a “general client account” and requiring commissioner to adopt rules for its use, while specifying only a few narrow restrictions within the statute).

      [205].     For example, Alabama and Connecticut have no general statute establishing inmate trust accounts, and Colorado and Mississippi have no official regulations governing inmate trust accounts.

      [206].     Miss. Code. Ann. § 47-5-194(6) (West, Westlaw through Mar. 19, 2024).

      [207].     Miss. Code. Ann. § 47-5-194 (West, Westlaw through Mar. 19, 2024).

      [208].     See 222 R.I. Code R. 10-00-1.4(B)(9)(d) (LexisNexis 2024); 20-00-1.16(D)(7) (2024).

      [209].     R.I. Dep’t of Corr., Inmate Rule Book 38 (2013), https://www.law.umich.edu/special/policyclearinghouse/Documents/RI%20DOC%20Inmate%20Rule%20Book%20-%20March%202013.pdf [https://perma.cc/9W5S-E3Y6].

      [210].     Id.

      [211].     Cf. Cal. Penal Code § 5008 (West, Westlaw through Ch. 8 of 2024 Reg. Sess.) (specifying that funds are held “in trust”).

      [212].     See, e.g., Colo. Rev. Stat. Ann. § 17-26-125 (West, Westlaw through legis. effective Apr. 4, 2024 of the Second Reg. Sess., 74th Gen. Assemb. (2024)) (using the term “safekeeping” when discussing how the Colorado Department of Corrections maintains accounts for incarcerated individuals).

      [213].     See supra note 162 and accompanying text.

      [214].     See supra notes 204–206 and accompanying text.

      [215].     Ward v. Ryan, 623 F.3d 807, 811 (9th Cir. 2010).

      [216].     See id. (finding that “courts have consistently held that such statutes granting inmates a protected property interest in their wages may also limit and define the contours of such interest”).

      [217].     See, e.g., Ala. Code 1975 § 45-8-232.20 (Westlaw through Act 2024–36, and including 2024–40, of the 2024 Reg. Sess.) (regarding work release and the deposit of wages in Calhoun County); Ala. Code 1975 § 45-31-231.23 (Westlaw through Act 2024–36, and including 2024–40, of the 2024 Reg. Sess.) (regarding work release, deposit of wages, and deductions from wages in Geneva County); Ala. Code 1975 § 45-36-231.07 (Westlaw through Act 2024–36, and including 2024–40, of the 2024 Reg. Sess.) (requiring that interest revert to the sheriff in Jackson County).

      [218].     See, e.g., Ala. Dep’t of Corr. Admin. Reg. 101 (2023) (governing internal audits by the Alabama Department of Corrections [ADOC], which does not directly refer to inmate trust accounts, though it addresses evaluation of “financial management systems” more broadly); Ala. Dep’t of Corr. Admin. Reg. 110 (2023) (governing an “institution contingency fund,” a form of prison welfare fund that draws its funds from sources that include commissary profits and interest on prison trust funds); Ala. Dep’t of Corr. Admin. Reg. 112 (20222) (authorizing withdrawals from prison trust funds for court debt).

      [219].     See, e.g., Ala. Dep’t of Corr., Male Inmate Handbook 24 (2017) (specifying that “ADOC will hold and administer funds belonging to you” and laying out specific procedures for withdrawals and deposits and a ban on accessing and operating outside accounts).

      [220].     See generally Ala. Dep’t of Corr., Male Inmate Handbook (2017) (specifying only minimal rules regarding use of the account). Alabama’s administrative regulations setting fiscal policies generally do not specifically mention inmate trust accounts, see, e.g., Ala. Dep’t of Corr. Admin. Reg. 101 (2023) (setting policies for internal audits), except when they allow prisons to collect the funds, see, e.g., Ala. Dep’t of Corr. Admin. Reg. 112 (2022) (allowing court-ordered withholding from inmate trust accounts); Ala. Dep’t of Corr. Admin. Reg. 110 (2023) (allowing prisons to collect the interest from inmate trust accounts). One policy relating to the management of individuals’ property focuses entirely on personal property and mentions inmate trust account funds only to specify that an individual can send money outside of the facility during the first thirty days after admission and, upon their death, the funds may be spent to mail the person’s property to their next of kin. Ala. Dep’t of Corr. Admin. Reg. 338 (2023)

      [221].     See, e.g., 004-00-03 Ark. Code R. § 1-109(I), (VI) (2003) (granting prison authorities broad authority to establish procedures for deposits into and expenditures from inmate trust accounts); Ariz. Rev. Stat. Ann. § 31-230(a) (West, Westlaw through legis. of the Second Reg. Sess. of the Fifty Sixth Leg. (2024)) (authorizing the director to set policies but setting some parameters around withdrawals for court-ordered restitution and specifically authorizing certain fees); see also Anderson v. State, Dep’t of Corr., 154 P.3d 220, 224 (Wash. 2007) (explaining the statutory scheme of mandatory deductions and prisons’ discretion to impose other deductions).

      [222].     Alaska Stat. § 33.30.201(d) (Lexis Advance through all 2023 legis.).

      [223].     Ariz. Rev. Stat. Ann. § 31-230 (West, Westlaw through legis. of the Second Reg. Sess. of the Fifty-Sixth Legislature (2024)).

      [224].     Ariz. Dep’t of Corr. Rehabilitation & Reentry, Dep’t Order 905 – Inmate Trust Account/Money System (May 20, 2022).

      [225].     Id. at App’x A.

      [226].     Id. at 1.

      [227].     See Ward v. Ryan, 623 F.3d 807, 811 (9th Cir. 2010).

      [228].     Business & Finance Division: Commissary and Trust Fund Department, Tex. Dep’t of Crim. Just., https://www.tdcj.texas.gov/divisions/bfd/comm_trust_inmate_trust.html [https://perma.cc/VBM3-8KBJ] (last visited Jan. 15, 2024).

      [229].     See id. The policy further states that funds may be used to purchase items in commissary, but it fails to mention that those items may be purchased only by maintaining funds in the inmate trust account. Id.

      [230].     See, e.g., Cal. Penal Code § 2085.5 (a), (b) (West, Westlaw through Ch. 8 of 2024 Reg. Sess.) (authorizing deductions for restitution); Colo. Rev. Stat. Ann. § 17-24-119(2)(a)–(d), (3) (West, Westlaw through legis. effective Apr. 4, 2024 of the Second Reg. Sess., 74th Gen. Assemb. (2024)) (referencing crime victim compensation, child support, forced savings, a law enforcement fund, and general costs of incarceration); Conn. Gen. Stat. Ann. § 18-101(a) (West, Westlaw through all enactments of the 2023 Reg. Sess. and the 2023 Sept. Spec. Sess.) (allowing disbursements from prison wages); Idaho Code Ann. § 11-108(2) (West, Westlaw through Ch. 113 of the Second Reg. Sess. of the Sixty Seventh Idaho Leg.) (discussing attorney’s fees if an incarcerated person files a habeas petition deemed frivolous); La. Stat. Ann. 15:874(4)(b), (d), (e), (g) (through the 2024 First Extraordinary and Second Extraordinary Sess.) (court costs, medical and dental co-pays, and restitution imposed by the prison); Me. Rev. Stat. tit. 34-A, § 3032(5-A) (2023) (restitution) and (5-B) (monetary sanctions); Mich. Comp. Laws Ann. § 791.220h(1) (West, Westlaw through P.A.2024, No. 35, of the 2024 Reg. Sess., 102nd Leg.) (restitution); Mich. Comp. Laws Ann. § 801.253 (West, Westlaw through P.A.2024, No. 35, of the 2024 Reg. Sess., 102nd Leg.) (costs of food); Mich. Comp. Laws Ann. § 801.4b(11) (West, Westlaw through P.A.2024, No. 35, of the 2024 Reg. Sess., 102nd Leg.) (fee for being admitted to jail); Wash. Rev. Code Ann. § 72.09.480(2)(e) (West, Westlaw through ch. 248 of the 2024 Reg. Sess. of the Wash. Leg.) (deducting for cost of incarceration); Wash. Admin. Code 137-28-410(3) (2023) (restitution imposed by prison); Wash. Rev. Code Ann. § 72.09.480(2)(a), (c), (d), (f) (West, Westlaw through ch. 248 of the 2024 Reg. Sess. of the Wash. Leg.) (crime victim compensation, forced savings, court debts, child support, and cost of incarceration).

      [231].     See, e.g., N.Y. Dept. of Corr. & Comm’y Supervision, Directive 2798.II 2 (2016) (denying inmates from holding other types of accounts).

      [232].     See Alaska Admin. Code tit. 22 § 05.105(c) (Lexis Advance through Register 249 (Apr. 2024)) (conferring the right to withdraw funds for “family members” but indicating that all other withdrawals are at the discretion of the commissioner); Conn. Agencies Regs. § 18-81-33(a),(b) (2015).

      [233].     See, e.g., Ariz. Rev. Stat. Ann. § 31-237 (West, Westlaw through legis. of the Second Reg. Sess. of the Fifty-Sixth Legis. (2024)) (requiring forced savings accounts for inmates); La. Stat. Ann. § 15:874(4)(c) (Westlaw through the 2024 First Extraordinary and Second Extraordinary Sessions) (same); Miss. Code Ann. § 47-5-579(6)(c) (West, Westlaw through Mar. 19, 2024) (same); Wash. Rev. Code Ann. § 72.09.480(2)(b) (West, Westlaw through ch. 248 of the 2024 Reg. Sess. of the Wash. Leg.) (same); Wash. Rev. Code Ann. § 72.09.480(2)(b)l (West, Westlaw through ch. 248 of the 2024 Reg. Sess. of the Wash. Leg.) (same).

      [234].     See Miss. Code Ann. § 47-5-579(6)(b)(ii) (West, Westlaw through Mar. 19, 2024).

      [235].     See, e.g., La. Stat. Ann. § 15:874(1)–(2) (Westlaw through the 2024 First Extraordinary and Second Extraordinary Sessions).

      [236].     La. Stat. Ann. § 15:874(5) (Westlaw through the 2024 First Extraordinary and Second Extraordinary Sessions); Me. Rev. Stat. tit. 34-A, § 3039(2) (2023) (allocating interest to maintenance of inmate trust accounts and to the general welfare fund).

      [237].     Me. Rev. Stat. tit. 34-A, § 3039(1) (2023) (requiring the commissioner to allow individuals to withdraw from prison trust fund and transfer to outside investments).

      [238].     03-201-010 Me. Code R. § 20.1(VII) (LexisNexis 2023) (see Procedure F).

      [239].     Conn. Gen. Stat. Ann. § 18-88(i) (West, Westlaw through the 2023 Reg. Sess. and the 2023 Sept. Spec. Sess.); Conn. Gen. Stat. Ann. § 18-101(a) (West, Westlaw through the 2023 Reg. Sess. and the 2023 Sept. Spec. Sess.).

      [240].     Conn. Gen. Stat. Ann. § 18-85(b) (West, Westlaw through the 2023 Reg. Sess. and the 2023 Sept. Spec. Sess.).

      [241].     Conn. Agencies Regs. § 18-85a-4(a), (b) (2015).

      [242].     See Williams v. Murphy, No. 3:13-cv-01154 (MPS), 2018 WL 2016850, at *5 (D. Conn. Mar. 29, 2018), aff’d sub nom., Williams v. Marinelli, 987 F.3d 188 (2d Cir. 2021); see also, e.g., Idaho Code Ann. § 20-209H (West, Westlaw through Ch. 113 of the Second Reg. Sess. of the Sixty Seventh Idaho Leg.) (offering no clear definition or set of rules for inmate trust accounts but specifying that restitution payments may be deducted); Idaho Code Ann. § 11-108(2) (West, Westlaw through Ch. 113 of the Second Reg. Sess. of the Sixty Seventh Idaho Leg.) (specifying that civil judgments can be drawn from inmate trust accounts).

      [243].     Young v. Wall, 642 F.3d 49, 53 (1st Cir. 2011).

      [244].     345 F.3d 1083, 1087 (9th Cir. 2003).

      [245].     Id.

      [246].     The agreements also would have required the individuals to cede all control over the accrued interest in the accounts. Id.

      [247].     Id.

      [248].     Id. at 1086 (citing Nev. Stat. Ann. § 209.241 (1993)).

      [249].     Id. (citing Nev. Stat. 16 § 209.241(2)(c)).

      [250].     Id. at 1089.

      [251].     Id.

      [252].     Id.

      [253].     Id. at 1090.

      [254].     See generally US Comm’n on C.R., Targeted Fines and Fees Against Communities of Color: Civil Rights and Constitutional Implications (2017), https://www.usccr.gov/files/pubs/2017/Statutory_Enforcement_Report2017.pdf [https://perma.cc/XZ5J-FQL6] (describing comprehensively the expansion of fines and fees and pervasive impacts); Alexes Harris, A Pound of Flesh: Monetary Sanctions as a Permanent Punishment for the Poor (2016) (providing groundbreaking study of the rise of monetary sanctions and long-term impacts on racial and socioeconomic inequality with a focus on practices in Washington).

      [255].     See, e.g., John Archibald, Police in This Tiny Alabama Town Suck Drivers into Legal ‘Black Hole’, AL.com (Jan. 20, 2022), https://www.al.com/news/2022/01/police-in-this-tiny-alabama-town-suck-drivers-into-legal-black-hole.html [https://perma.cc/JTY8-UKWF].

      [256].     See Kevin Tampone, Which Town and Village Courts Collect the Most Fines and Fees in NY and CNY?, Syracuse.com (May 16, 2023), https://www.syracuse.com/data/2023/05/which-town-and-village-courts-collect-the-most-fines-and-fees-in-ny-and-cny.html [https://perma.cc/DE2M-VUFP].

      [257].     See Brett Kelman, They Confessed to Minor Crimes. Then City Hall Billed Them $122K in ‘Prosecution Fees’, Desert Sun (Apr. 26, 2018), https://www.desertsun.com/story/news/crime_courts/2017/11/15/he-confessed-minor-crime-then-city-hall-billed-him-31-k-his-own-prosecution/846850001/ [https://perma.cc/9WZH-4HP3].

      [258].     See Devon Porter, Paying for Justice: The Human Cost of Public Defender Fees, ACLU of S. Cal. (June 2017), https://law.yale.edu/sites/default/files/area/center/liman/document/pdfees-report.pdf [https://perma.cc/AN94-NFSB]; Williams v. Marinelli, 987 F.3d 188, 192 (2d Cir. 2021) (noting that the state sued an incarcerated person for nearly $50,000 for the cost of his public defender).

      [259].     See generally Sharon Brett, Neda Khoshkhoo, & Mitali Nagrecha, Paying on Probation: How Financial Sanctions Intersect with Probation to Target, Trap, and Punish People Who Cannot Pay (June 2020), https://mcusercontent.com/f65678cd73457d0cbde864d05/files/f05e951e-60a9-404e-b5cc-13c065b2a630/Paying_on_Probation_report_FINAL.pdf [https://perma.cc/5E3U-G5BE] (discussing fees imposed by probation departments and probation’s role in enforcing payment of monetary sanctions as a condition of probation); Fines & Fees Just. Ctr. & Reform Alliance, 50 State Survey: Probation & Parole Fees: A State-by-State Look at the Scope of Probation and Parole Fees and the Consequences for Failure-to-Pay (2022), https://finesandfeesjusticecenter.org/content/uploads/2022/05/Probation-and-Parole-Fees-Survey-Final-2022-.pdf [https://perma.cc/PNV3-NS5J] (examining the scope of probation and parole fees across each state).

      [260].     See Fines & Fees Just. Ctr., Electronic Monitoring Fees: A 50-State Survey of the Costs Assessed to People on E-Supervision (2022), https://finesandfeesjusticecenter.org/content/uploads/2022/09/FFJC-Electronic-Monitoring-Fees-Survey-2022.pdf [https://perma.cc/3G3M-XP4N] (discussing fees for electronic monitoring); see generally Am. Bar Ass’n, Working Grp. on Bldg. Pub. Trust in the Am. Just. Sys., Privatization of Services in the Criminal Justice System (June 2020) (detailing the role of private corporations in pretrial and post-conviction supervision, diversion programs, prisons and jails, and criminal debt collection).

      [261].     See infra Part II.B.4.

      [262].     See Thai V. Le & Matthew M. Young, Regressive Revenue Sourcing by Local Governments, 60 Urb. Stud., 811, 812–13 (2023), https://doi.org/10.1177/00420980221124456 [https://perma.cc/23P6-J34Z] (describing how fiscal crisis leads governments to rely on fines, fees, and forfeitures to fill budget gaps and creates disparate racial impacts); It’s Time to Reject Fines and Fees as a Solution to Budget Problems, Fines & Fees Just. Ctr. & Ctr. on Budget and Pol’y Priorities (May 14, 2021), https://finesandfeesjusticecenter.org/2021/05/14/ffjc-cbpp-op-ed-its-time-to-reject-fines-and-fees-as-a-solution-to-budget-problems/ [https://perma.cc/2M6J-9Z7C] (discussing how state and local governments turned to fines and fees to fill budget gaps after the Great Recession and warning against similar policy shifts in response to the global pandemic); Cortney Sanders & Michael Leachman, Step One to an Antiracist State Revenue Policy: Eliminate Criminal Justice Fees and Reform Fines, Ctr. on Budget and Pol’y Priorities 3–4 (Sept. 17, 2021), https://www.cbpp.org/sites/default/files/9-17-21sfp.pdf [https://perma.cc/4SZL-BJJ7] (linking present-day fines and fees to post-Reconstruction fiscal policy and tracing a throughline through post-Great Recession efforts to compensate for lost government revenues); “Set Up to Fail”: The Impact of Offender-Funded Private Probation on the Poor, Hum. Rts. Watch (Feb. 20, 2018), https://www.hrw.org/report/2018/02/20/set-fail/impact-offender-funded-private-probation-poor [https://perma.cc/F5D9-NJ8U] (describing how the Great Recession led governments to privatize services in the criminal system to fill budget gaps).

      [263].     Le & Young, supra note 262, at 811; Sanders & Leachman, supra note 262, at 3.

      [264].     See, e.g., Kary L. Moss, Debtors’ Prison in Michigan: The ACLU Takes Up the Cause, 89 Mich. B.J., 40, 44 (2010) (describing litigation against practices of incarcerating poor individuals for nonpayment of mounting criminal debt and noting that Michigan practices had revived the term “debtors’ prison”); Sarah Geraghty & Melanie Velez, Bringing Transparency and Accountability to Criminal Justice Institutions in the South, 22 Stan. L. & Pol’y Rev. 455, 470 (2011) (describing litigation over fines and fees in Gulfport, Mississippi); Complaint, Thomas v. City of Gulfport, No 1:05-CV-349-LG-RHW (S.D. Miss. July 2005) (describing Harrison County jail as “modern day debtors’ prison” that incarcerated large numbers of individuals who owed fines and fees and city task force specifically assigned to patrol Black neighborhoods to find people with outstanding court debts).

      [265].     See Joseph Shapiro, In Ferguson, Court Fines And Fees Fuel Anger, NPR (Aug. 25, 2014), https://www.npr.org/2014/08/25/343143937/in-ferguson-court-fines-and-fees-fuel-anger [https://perma.cc/9SPH-EGFL].

      [266].     ArchCity Defenders Mun. Cts. White Paper 3 (Aug. 12, 2014), https://cdn0.vox-cdn.com/uploads/chorus_asset/file/3459956/ArchCity_Defenders_Municipal_Courts_Whitepaper.0.pdf [https://perma.cc/EQ4T-WH4M].

      [267].     U.S. Dep’t of Just. C.R. Div., Investigation of the Ferguson Police Department 42–78 (Mar. 4, 2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf [https://perma.cc/N8UM-6XCB].

      [268].     See, e.g., Press Release, Lawyers’ Comm. for C.R. San Francisco, Not Just a Ferguson Problem – How Traffic Courts Drive Inequality in California (Apr. 9, 2015), https://lccrsf.org/pressroom_posts/not-just-a-ferguson-problem-how-traffic-courts-drive-inequality-in-california/ [https://perma.cc/8EZS-BHF3]; Raven Rakia, It’s Not Just Ferguson, Nation (Mar. 5, 2015), https://www.thenation.com/article/archive/its-not-just-ferguson/ [https://perma.cc/FKH3-4GG4]. For an analysis of how the problems identified in Ferguson are endemic to communities across the country, see generally Andrea Marsh & Emily Gerrick, Why Motive Matters: Designing Effective Policy Responses to Modern Debtors’ Prisons, 34 Yale L. & Pol’y Rev. 93 (2016).

      [269].     See Sanders & Leachman, supra note 262, at 3–5.

      [270].     See id.; see also Statutory Court Fee Task Force, Illinois Court Assessments: Findings and Recommendations for Addressing Barriers to Access to Justice and Additional Issues Associated with Fees and Other Court Costs in Civil, Criminal, and Traffic Proceedings 1, 23–15 (June 1, 2016), https://www.ilga.gov/reports/special/statutory%20court%20fee%20task%20force%20report.pdf [https://perma.cc/EJ8N-6434] (describing how individual agencies and subdivisions proposed new fees, resulting in the proliferation of small fees adding up to large sums); Carl Reynolds, Mary Cowherd, Andy Barbee, Tony Fabelo, Ted Wood & Jamie Yoon, A Framework to Improve How Fines, Fees, Restitution and Child Support Are Assessed and Collected from People Convicted of Crimes: Interim Report 1-3 (2009), https://csgjusticecenter.org/wp-content/uploads/2020/02/2009-CSG-TXOCA-report.pdf [https://perma.cc/XG7D-CPCM] (describing Texas’s efforts to increase revenue generation through fines and fees).

      [271].     See, e.g., Roopal Patel, Louisiana’s Public Defender Fees are Poor Fiscal and Legal Policies, Brennan Ctr. for Just. (Apr. 12, 2012), https://www.brennancenter.org/our-work/analysis-opinion/louisianas-public-defender-fees-are-poor-fiscal-and-legal-policies [https://perma.cc/A36U-5UUS] (“Although intended to help fill budget gaps, Louisiana has failed to track the costs of collecting criminal justice fees and fines.”).

      [272].     See Adam Liptak, Charged a Fee for Getting Arrested, Whether Guilty or Not, N.Y. Times (Dec. 26, 2016), https://www.nytimes.com/2016/12/26/us/politics/charged-a-fee-for-getting-arrested-whether-guilty-or-not.html [https://perma.cc/GQ52-HYNR].

      [273].     During the Great Recession, state and local governments turned toward small fees to fill large budgetary gaps across government services, not just in the criminal system, with the idea that small fee increases would be lucrative in the aggregate. See David Segal, Cities, States Turn to Fees to Fill Budget Gaps, NBC News (Apr. 11, 2009), https://www.nbcnews.com/id/wbna30162245 [https://perma.cc/47ZX-LUGL]. In the context of criminal system fees, however, the fee increases did not always prove beneficial, and often governments did not conduct cost-benefit analyses at all. See, e.g., Patel, supra note 271.

      [274].     See, e.g., U.S. Dep’t of Just. C.R. Div., supra note 267 (describing in detail the harms of Ferguson’s use of fines and fees for revenue generation, particularly ballooning costs when an individual is initially unable to pay, unnecessary arrests and incarceration, difficulty resolving any infractions because of outstanding costs, repeated unnecessary court appearances, harsh penalties for missed payments, erosion of community trust, aggressive vehicle stops, and disparate impacts on low-income Black communities).

      [275].     Matthew Menendez, Lauren-Brooke Eisen, Noah Atchison & Michael Crowley, The Steep Costs of Criminal Justice Fees and Fines: A Fiscal Analysis of Three States and Ten Counties, Brennan Ctr. for Just. 5 (Nov. 21, 2019), https://www.brennancenter.org/our-work/research-reports/steep-costs-criminal-justice-fees-and-fines [https://perma.cc/8QPQ-TPNB].

      [276].     See Mathilde Laisne, Jon Wool & Christian Henrichson, Past Due: Examining the Costs and Consequences of Charging for Justice in New Orleans I (Jan. 2017).

      [277].     Id. (describing how the courts that impose bail, fines, and fees do not bear the cost of actually incarcerating those who cannot pay—the city and its taxpayers do); see also People v. Cameron, 929 N.W.2d 785, 786 (Mich. 2019) (McCormick, C.J., concurring) (describing how courts are pressured to facilitate convictions to keep their own agencies running, without mentioning attendant costs to the prison and jail systems).

      [278].     See generally Menendez et al., supra note 275 (“Jailing people for nonpayment is by far the most expensive method of enforcing collections and generates little to no revenue making it highly uneconomical.”)

      [279].     Peter K. Enns & Delphia Shanks-Booth, The Great Recession and State Criminal Justice Policy: Do Economic Hard Times Matter?, Russell Sage Found. Great Recession Brief 2 (Dec. 2015), https://inequality.stanford.edu/sites/default/files/great%20recession%20criminal%20justice.pdf [https://perma.cc/KZ5S-WDW8].

      [280].     See id. at 3 (noting that the relationship between state tax revenues and corrections spending varied during and after the Great Recession, in contrast to past recessions during which decreased state tax revenues more strongly correlated with decreased corrections spending).

      [281].     See Stephen Raher, The Multi-Million Dollar Market of Sending Money to an Incarcerated Loved One, Prison Pol’y Initiative (Jan. 18, 2017), https://www.prisonpolicy.org/blog/2017/01/18/money-transfer/ [https://perma.cc/9ZZK-SHKQ].

      [282].     See Lindsay Sain Jones & Goldburn P. Maynard, Jr., Unfulfilled Promises of the Fintech Revolution, 111 Calif. L. Rev. 801, 801 (2023) (explaining that fintech can “exacerbate existing inequalities”).

      [283].     For example, California and Texas both issue annual budget reports with line items for commissary and welfare funds but not prison trust funds. See Cal. Dep’t of Corr. & Rehab., 2022–23 State Budget, https://ebudget.ca.gov/2022-23/pdf/Enacted/GovernorsBudget/5210.pdf [https://perma.cc/9WVL-3ER6]; Tex. Dep’t of Crim. Just., Agency Operating Budget 2022 (Aug. 27, 2021), https://www.tdcj.texas.gov/documents/bfd/FY2022_Operating_Budget_LBB.pdf [https://perma.cc/ADD7-XCG6].

      [284].     Kansas law grants prison directors wide latitude to assess a variety of fees. See Kan. Stat. Ann. § 75-52,139 (West, Westlaw through laws enacted during the 2024 Reg. Sess. of the Kan. Leg. effective on Apr. 11, 2024).

      [285].     Kan. Stat. Ann. § 75-5211 (West, Westlaw through laws enacted during the 2024 Reg. Sess. of the Kan. Leg. effective on Apr. 11, 2024).

      [286].     Kan. Admin. Regs. 44-5-115 (Westlaw through Volume 43, No. 14, Apr. 4, 2024); Kan. Att’y Gen., Crime Victims Compensation Board Annual Report, Kansas Fiscal Year 2021 6 (May 2022), https://ag.ks.gov/docs/default-source/reports/cvcb/fy-2021-cvc-annual-report.pdf?sfvrsn=eafca01a_4 [https://perma.cc/WHE3-26YG]. It is unclear why the fee assessed against inmate trust accounts is labeled as an administrative fee to cover maintenance of the accounts when the funds clearly go towards the victim compensation fund. This labeling suggests that there may be no actual costs of administering the inmate trust accounts. Kansas contracts with Access Corrections to provide money transfer services. Kan. Dep’t of Corr., Notice to Friends and Family (Nov. 2022), https://www.doc.ks.gov/facilities/inmate-banking/accesscorrectionsnovember2022/view [https://perma.cc/VW89-DUJU].

      [287].     Kirk, Fernandes & Friedman, supra note 76, at 923 (citations omitted); see also Alexes Harris, Natasha Hicks, & Cortney Sanders, A Pound of Flesh, Inquest, Institute to End Mass Incarceration (May 18, 2022), https://inquest.org/a-pound-of-flesh/ [https://perma.cc/Z3QT-C7GH] (discussing the use of monetary sanctions in the United States).

      [288].     Timbs v. Indiana, 139 S. Ct. 682, 688 (2019).

      [289].     See Beth A. Colgan, The Burdens of the Excessive Fines Clause, 63 Wm. & Mary L. Rev. 407, 426 (2021); Blackmon, supra note 89, at 7, 53 (describing post-Civil War government-run and private forced labor camps and the broader system of convict leasing).

      [290].     See Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration, 104 Cornell L. Rev. 899, 908 (2019) (arguing that the “preservation of the practice of slavery through its transformation into prison labor means that socially, legislatively, and judicially, we have come only to reject one form of discrimination—antebellum slavery—while distinguishing it from the marginally remunerated and totally unremunerated prison labor that courts legitimate.”).

      [291].     Blackmon, supra note 89, at 7–8.

      [292].     See id. at 64-69.

      [293].     See What Would It Take for States to Reform Local Fines and Fees?, Tax Pol’y Ctr., Urb. Inst. & Brookings Inst. (Sept. 2022), https://www.taxpolicycenter.org/feature/what-would-it-take-states-reform-local-fines-and-fees [https://perma.cc/TT8E-EKK9] (last visited Jan. 18, 2024).

      [294].     See Matthew Menendez, Lauren-Brooke Eisen, & Michael Crowley, If We Only Knew the Cost: Scratching the Surface on How Much it Costs to Assess and Collect Court Imposed Criminal Fees and Fines, 2020 UCLA Crim. J.L. Rev. 165, 169–70 (2020).

      [295].     See id.

      [296].     See, e.g., Nevada’s Department of Corrections’ Practices Exploit Struggling Families for Profit, Fines & Fees Just. Ctr. (Feb. 2023), https://finesandfeesjusticecenter.org/content/uploads/2023/02/Nevada-NDOCs-Comissary-Pricing-1-Pager-2023.pdf [https://perma.cc/MT55-3R32] (detailing Nevada Department of Corrections’s high markup and kickbacks).

      [297].     For examples of this phenomenon, see Shropshire v. Fajota, No. 3:15-cv-00164-RCJ-WGC, 2016 WL 5346958, at *5 (D. Nev. Aug. 18, 2016), report and recommendation adopted, No. 3:15-cv-00164-RCJ-WGC, 2016 WL 5339667 (D. Nev. Sept. 22, 2016), aff’d, 698 F. App’x 466 (9th Cir. 2017); Simpson v. Martin, No. CIV-20-985-C, 2021 WL 3478214, at *9 (W.D. Okla. June 30, 2021), report and recommendation adopted, No. CIV-20-985-C, 2021 WL 3476613 (W.D. Okla. Aug. 6, 2021), aff’d, No. 21-6104, 2022 WL 1087139 (10th Cir. Apr. 12, 2022); see also infra Part II.D.4.

      [298].     See Katzenstein & Waller, supra note 33, at 642. For example, a 2009 report by the Council of State Governments and the Texas Office of Court Administration noted that “efforts to tap inmates’ accounts to satisfy fines and court costs proved to be quite successful.” Carl Reynolds, Mary Cowherd, Andy Barbee, Tony Fabelo, Ted Wood & Jamie Yoon, A Framework to Improve How Fines, Fees, Restitution and Child Support Are Assessed and Collected from People Convicted of Crimes: Interim Report 17 (Mar. 2, 2009). The idea of drawing on inmate trust accounts to satisfy debts started in one county, with judges issuing 1,522 orders for withdrawals that resulted in $65,000 in fine and court cost revenue for the state. Id. at 17 n.26. This report recommended that the Texas legislature amend its garnishment statute to clarify that prison administrators could divert funds from inmate trust accounts only pursuant to a valid civil judgment. Id. at 44. To date, the Texas legislature has not followed this recommendation. See Tex. Civ. Prac. & Rem. Code Ann. § 63.007(a) (West, Westlaw through the end of the 2023 Reg., Second, Third and Fourth Called Sess. of the 88th Leg., and the Nov. 7, 2023, gen. election).

      [299].     See Katzenstein & Waller, supra note 33.

      [300].     See infra notes 376–385.

      [301].     Somewhere between embezzlement and seizures that withstand legal challenge are the seizures that prisons justify on some legal ground, however shaky. In other words, in this third category, prisons may claim legal authority to make the deductions, but they either lose the lawsuit or the source of the authority is unclear. See, e.g., Williams v. Murphy, No. 3:13-cv-01154 (MPS), 2018 WL 2016850, at *5, 12 n.17 (D. Conn. Mar. 29, 2018) (noting that “[a] printout of the transaction history of Williams’s [prison trust] account demarcated this [freeze on the account] as the result of a ‘Court Order,’ although the record does not reflect the issuance of any such order by this Court or any other court,” but declining to express a view “as to the legality of the State’s asset freeze under state law”), aff’d sub nom., Williams v. Marinelli, 987 F.3d 188 (2d Cir. 2021).

      [302].     Scott Tong & Paul Flahive, Texas Prisons Raise Prices of Bottled Water for Inmates Amid Ongoing Heat Wave, WBUR (July 26, 2023), https://www.wbur.org/hereandnow/2023/07/26/texas-prisons-water-bottles#https://www.wbur.org/hereandnow/2023/07/26/texas-prisons-water-bottles# [https://perma.cc/R283-BU99].

      [303].     See Stephen Raher, The Company Store: A Deeper Look at Prison Commissaries, Prison Pol’y Initiative (May 2018), https://www.prisonpolicy.org/reports/commissary.html [https://perma.cc/A64Y-5S9P].

      [304].     See id. at 17.

      [305].     See, e.g., State of Al. Dep’t of Corr., Inmate Co-payment for Health Services (June 1, 2013), https://doc.alabama.gov/docs/AdminRegs/AR703.pdf [https://perma.cc/BVZ2-BWV5] (authorizing medical and medication co-payments); N.J. Admin. Code § 10A:16-1.5 (2017) (same).

      [306].     For an overview of prison medical co-pay policies, see State and Federal Prison Co-Pay Policies and Sourcing Information, Prison Pol’y Initiative (Apr. 13, 2017), https://www.prisonpolicy.org/reports/copay_policies.html [https://perma.cc/8A84-PQJM].

      [307].     See Raher, supra note 303.

      [308].     See id.

      [309].     “These costs of incarceration and state disbursements are not being drawn from the general revenue and spread across all taxpayers. They are being borne, specifically, by the mostly low-income families” of incarcerated people. Katzenstein & Waller, supra note 33, at 641. In one case, where a prison imposed medical costs on an individual alleged to have assaulted another incarcerated person, the court noted that the prison is in an unusual position compared to other judgment creditors, because it “controls the process through which the amount of medical expenses will be determined.” Burns v. PA Dep’t of Corr., 544 F.3d 279, 288 (3d Cir. 2008).

      [310].     See Boudin, Stutz, & Littman, supra note 110, at 150, 176.

      [311].     May, supra note 111.

      [312].     See Vance v. Barrett, 345 F.3d 1083, 1089–90 (9th Cir. 2003).

      [313].     Stephen Raher, Insufficient Funds: How Prison and Jail ‘Release Cards’ Perpetuate the Cycle of Poverty, Prison Pol’y Initiative (May 3, 2022), https://www.prisonpolicy.org/blog/2022/05/03/releasecards/ [https://perma.cc/52PV-KRFY].

      [314].     See Brown v. Stored Value Cards, Inc., 953 F.3d 567, 570 (9th Cir. 2020).

      [315].     Press Release, CFPB Penalizes JPay for Siphoning Taxpayer-Funded Benefits Intended to Help People Re-enter Society After Incarceration, Consumer Fin. Prot. Bureau (Oct. 19, 2021), https://www.consumerfinance.gov/about-us/newsroom/cfpb-penalizes-jpay-for-siphoning-taxpayer-funded-benefits-intended-to-help-people-re-enter-society-after-incarceration/ [https://perma.cc/SWM3-4Q3B].

      [316].     See Brown, 953 F.3d at 570–71 (plaintiff’s money confiscated upon arrest was returned on a debit card, only to be diminished by fees of up to 22% of the card’s original value); Catherine E. Akenhead, How States Can Take a Stand Against Prison Banking Profiteers, 85 Geo. Wash. L. Rev. 1224, 1234–35 (2017).

      [317].     See Kolkey, supra note 9, at 268–69.

      [318].     One advocacy organization maintains a database of corporations with contracts to provide goods or services in correctional institutions and immigration detention centers. The organization notes that “[t]he prison industry is worth over $80 billion and includes thousands of corporations.” Worth Rises, The Prison Industry Corporate Database, https://data.worthrises.org [https://perma.cc/WP3A-PXXQ] (last accessed Mar. 10, 2024).

      [319].     See Consumer Fin. Prot. Bureau, supra note 16, at 15–17.

      [320].     The relationship between the bundled services that private entities now offer prisons is critical to the profit-making structure. Companies have had to compete to offer increasingly attractive site commissions to prisons—to the point of giving nearly all of their telecommunications profits to the prisons. Therefore, such companies have to draw their revenue from hidden fees on bundled services, like money transfers, debit release cards, and media purchases. See Peter Wagner & Alexi Jones, On Kickbacks and Commissions in the Prison and Jail Phone Market, Prison Pol’y Initiative (Feb. 11, 2019), https://www.prisonpolicy.org/blog/2019/02/11/kickbacks-and-commissions/ [https://perma.cc/V2PG-6HSF]. The Federal Communications Commission has been attempting to regulate prison phone call rates since 2013. Ann E. Marimow, FCC Made a Case for Limiting the Cost of Prison Phone Calls. Not Anymore, Wash. Post (Feb. 5, 2017), https://www.washingtonpost.com/local/public-safety/fcc-made-a-case-for-limiting-cost-of-prison-phone-calls-not-anymore/2017/02/04/9306fbf8-e97c-11e6-b82f-687d6e6a3e7c_story.html [https://perma.cc/8KV2-6M2B]. It now caps both phone call rates and site commissions and is now implementing new legislation that gives the agency greater control to regulate costs. Incarcerated People’s Communications Services, Fed. Commc’ns. Comm’n, https://www.fcc.gov/incarcerated-peoples_communications_services [https://perma.cc/ZY2H-KXR6] (last visited Apr. 12, 2024).

      [321].     A similar contractual arrangement and scheme of perverse incentives exists around prison phone fees. Wagner & Jones, supra note 320.

      [322].     For example, a contract for telecom, internet, and banking services between Dauphin County, Pennsylvania, and DSI-ITI, Inc., contained a provision granting the county a minimum monthly guaranteed payment of $56,533.33 as well as percentages of other revenues. A contract between Calhoun County, Texas, and Inmate Calling Solutions, LLC, for integrated banking and commissary software and services granted the county 36 percent of adjusted gross sales. An agreement for banking and commissary services between Kalamazoo County, Michigan, and Canteen Services, Inc., granted the county 10–32 percent of most commissary sales. A similar contract involving Miami-Dade County, Florida, granted the county a commission of 47–50 percent of commissary purchases and 8 percent of all banking service fees. Contract Between Dauphin Co., Pa., and DSI-ITI App’x B (Dec. 12, 2018).

      [323].     See Wagner & Jones, supra note 320. For an example of a price-setting JPay contract, see Contract Between the State of Tenn., Tenn. Dep’t of Corr. and JPay Inc., (Dec. 28, 2012), https://www.prisonpolicy.org/contracts/documents.html?text-search-fields=facility-and-remarks&q=&q-state=&q-document-type=&q-service=inmate-banking-software&q-vendor=&sort=state#search-form [https://perma.cc/F2CF-2SFC].

      [324].     Katzenstein & Waller, supra note 33, at 639.

      [325].     See supra notes 46, 94, and 103; see also Keefe Commissary Network, LLC, Original Technical Proposal, W. Va. Div. of Corr. 18 (Apr. 10, 2014), https://www.prisonpolicy.org/contracts/documents.html?text-search-fields=facility-and-remarks&q=&q-state=&q-document-type=&q-service=inmate-banking-software&q-vendor=&sort=state#search-form [https://perma.cc/VTG8-5UQZ] (detailing the actual path of cash deposits at the Keefe kiosks: “The kiosk will accept deposits via cash or credit/debit cards. . . . The cash will be removed on a scheduled basis which is usually weekly. The cash will then be counted and reconciled to the cash receipt total printed by the kiosk. Once reconciled, the cash will then be deposited to Keefe’s account at Bank of America. Funds will then be sent via ACH to the agency bank account the next business day”); Mehrsa Baradaran, Rethinking Financial Inclusion: Designing an Equitable Financial System with Public Policy, Roosevelt Inst. 2 (Apr. 2020) (“Before consumers can ‘mobile bank’ with Venmo or Cash App, they must link their bank account to the service. The traditional banking system that the apps are meant to supplant is actually providing the background access, the rails on which the fintech train can run.”) (footnote omitted).

      [326].     Taking an Interest in Inmate Trust Accounts, 73 Vand. L. Rev. 143, 145 (2020). Jurisdictions may allocate the interest to a “welfare” fund, see, for example, N.J. Stat. Ann. § 30:4-67.1 (West, Westlaw through L.2023, c. 256 and J.R. No. 18), but these funds may cover a wide variety of operational costs, see supra notes 142–147.

      [327].     Vand. L. Rev., supra note 326; see also Young v. Wall, 642 F.3d 49, 54 (1st Cir. 2011) (holding no property right in interest accrued from incarcerated people’s wages).

      [328].     See Young, 642 F.3d at 54; see generally Isaac Colunga, An Alternative Look at the Takings Clause and Inmate Trust Accounts, 39 U. Tol. L. Rev. 791, 794 (2008) (explaining that the majority of circuits have held that people in prison “lack the requisite protected property interest for the purposes of a takings claim”).

      [329].     See Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1201 (9th Cir. 1998) (expressing “little doubt that interest income of the sort at issue here is sufficiently fundamental that States may not appropriate it without implicating the Takings Clause”).

      [330].     Young, 642 F.3d at 51–52.

      [331].     Id.

      [332].     Id.

      [333].     Id. The opinion signaled a trend. See Nelson et al., supra note 46, at 40.

      [334].     Schwartzapfel, supra note 108.

      [335].     See Kan. Admin. Regs. 44-13-610 (Westlaw through Vol. 43, No. 14, Apr. 4, 2024) (addressing assessment of fines but not specifying any limits).

      [336].     Disciplinary Reports, Kan. Dep’t of Corr. (Feb. 29, 2012), https://www.doc.ks.gov/victim-services/information/disciplinary-reports [https://perma.cc/3HX6-MJCM]. Although the corrections website indicates that Class II offenses would be misdemeanors in criminal courts, there is no such misdemeanor of “disrespect” in Kansas’s criminal code, nor would such a crime likely be constitutional.

      [337].     Id.

      [338].     Id.; see also N.J. Admin. Code § 10A:2-7.1 (Westlaw through amendments included in the N.J. Reg., Vol. 56, Issue 6, dated Mar. 18, 2024) (restitution allowed as sanction).

      [339].     N.J. Stat. Ann. § 30:4-16.4 (West, Westlaw through L.2023, c. 256 and J.R. No. 18) (specifying that the state can deduct restitution, fines, or penalties, as well as any medical costs for care provided to an individual).

      [340].     Off. of the Sec’y of State, Temporary Administrative Order, Prohibited Conduct and Processing Disciplinary Actions, DOC 16-2022 (Nov. 22, 2022), https://www.oregon.gov/doc/Documents/291-105-prohibited-conduct-and-processing-disciplinary-actions.pdf [https://perma.cc/EU94-5VLK].

      [341].     N.J. Stat. Ann. § 30:4-91.4(a), (b), (c) (West, Westlaw through L.2023, c. 256 and J.R. No. 18). The same provisions allow assessments for the “cost[] of maintenance related to the prisoner’s confinement” and “travel expenses to and from the work release program.”

      [342].     N.J. Admin. Code § 10A:2-7.4(a), (b) (Westlaw through amendments included in the N.J. Reg., Vol. 56, Issue 6, dated Mar. 18, 2024); Nev. Rev. Stat. Ann. § 209.221(6) (West, Westlaw through legis. of the 82nd Reg. Sess. (2023) Chs. 1 to 535 (End) and the 35th Spec. Sess. (2023) Ch. 1 (End)); Nev. Rev. Stat. Ann. § 209.246 (West, Westlaw through legis. of the 82nd Reg. Sess. (2023) Chs. 1 to 535 (End) and the 35th Spec. Sess. (2023) Ch. 1 (End)) (providing that the Department of Corrections shall establish regulations regarding repayment of costs for damaged property, medical care, the pursuit of an escaped individual or “quelling [of] any riot,” funeral services, the release of an individual, monetary sanctions, postage, legal services, telephone calls, returned checks, clothing, and other items required for work).

      [343].     New Jersey leaves it to each facility to determine processes for determining the amount of restitution. N.J. Admin. Code § 10A:2-7.3 (Westlaw through amendments included in the N.J. Reg., Vol. 56, Issue 6, dated Mar. 18, 2024).

      [344].     See Katzenstein & Waller, supra note 33, at 642 (noting that, in many states, when family members deposit funds in a prison trust or commissary account, monies are directed to encumbrances, restitution, and other fines and fees).

      [345].     Consumer Fin. Prot. Bureau, supra note 16, at 20.

      [346].     California’s definition of restitution includes “restitution fines,” which are not payments directly to victims to cover their actual costs, but rather are amounts set based on the seriousness of the charged offense and are contributed toward the general budget of the Crime Victims Compensation Board, including administrative costs of the program. Cal. Penal Code § 2085.5(d)–(f) (West, Westlaw through Ch. 8 of 2024 Reg. Sess.) (authorizing deductions for restitution fines and orders); Cal. Penal Code § 1202.4 (West, Westlaw through Ch. 8 of 2024 Reg. Sess.) (requiring that restitution fines are imposed in amounts commensurate to the seriousness of the offense and are distinct from the restitution orders that directly compensate victims for the convicted individual’s crime). Because every conviction carries a restitution fine, even individuals whose crimes have no identifiable victim (like drug possession) must pay a restitution fine. See id.

      [347].     Consumer Fin. Prot. Bureau, supra note 16 (citing Or. Rev. Stat. § 423.105).

      [348].     Dana Gentry, Sisolak Rejects 80 Percent Seizure from Inmate Accounts in Favor of Half, Nev. Current (Jan. 25, 2021), https://www.nevadacurrent.com/2021/01/25/sisolak-rejects-80-percent-seizure-from-inmate-accounts-in-favor-of-half/ [https://perma.cc/46CJ-XYTT].

      [349].     N.J. Stat. Ann. § 30:4-15.1 (West, Westlaw through L.2023, c. 256 and J.R. No. 18).

      [350].     See Jesse Wegman, When It Costs $53,000 to Vote, N.Y. Times (Oct. 7, 2021), https://www.nytimes.com/2021/10/07/opinion/election-voting-fine-felony-florida.html [https://perma.cc/JBN2-6VHH].

      [351].     See Order, State v. Rena, CC-2008-000251.00 (May 6, 2021) (on file with the author); Motion for Virtual Hearing and to Place a Hold on Economic Impact Payments Deposited into the Inmate’s Trust Account, CC-2008-251 State of Alabama v. Darla Rena Jenkins, No. (Apr. 6, 2021).

      [352].     Wegman, supra note 350.

      [353].     See, e.g., La. Legis. Auditor, The Collection of Court Costs and Fines in Louisiana Judicial Districts 4, 8 (Apr. 2, 2014) (detailing poor recording and data tracking of fine and fee assessments and noting that half of responding districts indicated that they lacked a case management system capable of recording debts and account balances).

      [354].     See generally Lauren-Brooke Eisen, Paying for Your Time: How Charging Inmates Fees Behind Bars May Violate the Excessive Fines Clause, Brennan Ctr. For Just. (July 31, 2014), https://www.brennancenter.org/our-work/research-reports/paying-your-time-how-charging-inmates-fees-behind-bars-may-violate [https://perma.cc/Z8GE-X3GR] (describing history and scope of pay-to-stay practices and estimating that a third of jails impose room-and-board fees); Deitch, supra note 80.

      [355].     See Hearing on H.B. 5390 Before the Joint Committee on the Judiciary, 2021 Leg. Sess. (Conn. 2021) (Testimony of Arthur Liman Center for Public Interest Law), https://www.cga.ct.gov/2022/juddata/TMY/2022HB-05390-R000325-Reed-Guevera,%20Mila,%20Professor-Yale%20Law%20School-TMY.PDF [https://perma.cc/D7RC-5YV4]; Digital Advocacy Project, Repealing the Connecticut Incarceration Lien, YouTube (Apr. 27, 2022), https://www.youtube.com/watch?v=4Xaqi2BzmmM [https://perma.cc/RGZ4-5YK9] (“Our interview subjects who were incarcerated at the time of their inheritance, found out that there was a lien on their account only when their [prison trust funds] were frozen.”).

      [356].     The daily cost of incarceration in the country can be as high as $249 per day, as is the case in Connecticut. April D. Fernandes, Brittany Friedman, & Gabriela Kirk, Forcing People to Pay for Being Locked Up Remains Common, Wash. Post (May 2, 2022), https://www.washingtonpost.com/outlook/2022/05/02/forcing-people-pay-being-locked-up-remains-common/ [https://perma.cc/NXG6-2ADV].

      [357].     The BOP calculates the annual cost “by dividing the number representing the Bureau of Prisons (Bureau) facilities’ monetary obligation (excluding activation costs) by the number of inmate-days incurred for the fiscal year, and then by multiplying the quotient by the number of days in the fiscal year.” Notice of Annual Determination of Average Cost of Incarceration Fee (COIF), 88 Fed. Reg. 1331 (Sept. 1, 2021), https://www.federalregister.gov/documents/2021/09/01/2021-18800/annual-determination-of-average-cost-of-incarceration-fee-coif [https://perma.cc/VB99-Y38C].

      [358].     “User” is a term of art imported from noncriminal contexts in which government fees are justified as non-taxes on the grounds that they are assessed for the use of a government service and not broadly collected to fund government more generally. See Ariel Jurow Kleiman, Nonmarket Criminal Justice Fees, 72 Hastings L.J. 517, 523­–26 (2021). In both criminal and noncriminal contexts, user fees are justified on the grounds that the market can regulate them, and users can opt out of the specific services if costs run too high. But as more user fees are imposed on broad categories of poor “users”—such as people in prisons—they look increasingly like regressive taxes. See id. at 559.

      [359].     Little information is available about the exact mechanics of prisons’ access to online accounts. One example of a prison system’s standard operating procedure details the types of access that multiple prison officials have in accessing online inmate trust account information. See Idaho Dep’t of Corr. Standard Operating Proc. 114.03.03.011 2–7, App’x B (2016), http://forms.idoc.idaho.gov/WebLink/0/edoc/283025/Inmate%20Trust%20Account.pdf [https://perma.cc/54H6-5DC9]. For example, a “fiscal unit technician” might make deductions from an account with the following steps: “Enter the inmate trust accounting computer system, and enter the required data to deduct the amount requested from the inmate’s trust account; [c]omplete the “reply” section of the Inmate Concern Form, and send the yellow part of the form to the inmate; and [f]ile the white copy of the concern form and batch.” Id. at 16. In some states, however, prisons must file a claim or otherwise obtain a court order in order to seize funds from a prison bank account. See generally Plunkett, supra note 97, at 76–78 (surveying state practices for recovering per diem costs of incarceration, including jurisdictions that explicitly allow direct debits by prisons and those that are silent or require judicial authorization).

      [360].     Moore v. Washington, No. 1:20-cv-1184, 2021 WL 508304, at *4 (W.D. Mich. Feb. 11, 2021).

      [361].     Hayes v. Graves, No. 4:21-cv-00347-LPR, 2022 WL 822881, at *2 (E.D. Ark. Mar. 16, 2022).

      [362].     Moore, 2021 WL 508304, at *4.

      [363].     See April D. Fernandes, Brittany Friedman & Gabriela Kirk, The “Damaged” State vs. the “Willful” Nonpayer: Pay-to-Stay and the Social Construction of Damage, Harm, and Moral Responsibility in a Rent-Seeking Society, 8 Russell Sage Found. J. Soc. Scis. 82, 82–105 (2022).

      [364].     See Kirk, Fernandes & Friedman, supra note 76, at 932 (“While Illinois and Michigan lawmakers consistently referenced the ability to pay as an enforcement criterion throughout the statutes’ development, prisoner’s accounts were surveilled constantly for any influx of funds, regardless of the amount. Michigan takes it further by prohibiting prisoners from possessing accounts at financial institutions, mandating all assets be kept in institutional accounts, which are visible to and controlled by the state.”).

      [365].     Ross v. Myrick, 817 F. App’x 499, 500 (9th Cir. 2020).

      [366].     See supra notes 145–147 and accompanying text.

      [367].     See Williams v. Murphy, No. 3:13-cv-01154 (MPS), 2018 WL 2016850, at *5, 12 (D. Conn. Mar. 29, 2018), aff’d sub nom., Williams v. Marinelli, 987 F.3d 188 (2d Cir. 2021). Connecticut has since partially repealed its pay-to-stay law as it relates to lawsuit proceeds, but it remains in place for individuals convicted of serious offenses. Act of May 7, 2022, Pub. L. 22-118, Sec. 458, https://www.cga.ct.gov/2022/act/pa/pdf/2022PA-00118-R00HB-05506-PA.pdf [https://perma.cc/45NF-CBW3].

      [368].     Williams, 2018 WL 2016850, at *5.

      [369].     Hearing on H.B. 5390 Before the Joint Committee on the Judiciary, 2021 Leg. Sess. (Conn. 2021) (Testimony of Arthur Liman Center for Public Interest Law), https://www.cga.ct.gov/2022/juddata/TMY/2022HB-05390-R000325-Reed-Guevera,%20Mila,%20Professor-Yale%20Law%20School-TMY.PDF [https://perma.cc/D7RC-5YV4]; Digital Advocacy Project, supra note 355.

      [370].     Brittany Friedman, Unveiling the Necrocapitalist Dimensions of the Shadow Carceral State: On Pay-to-Stay to Recoup the Cost of Incarceration, 37 J. Contemp. Crim. Just. 66, 72 (2021).

      [371].     Id. at 71–80.

      [372].     For an overview of the history of cost-of-incarceration laws, see Deitch, supra note 80; see also Friedman, supra note 370, at 71–72 (explaining that forty-nine states have some form of pay-to-stay law in effect, at least forty-three of these set such fees at the prison level, and 90 percent of jails responding to a 2005 National Institute of Justice study had some form of pay-to-stay practice, and developing a theory of “institutional accumulation” described as “necrocapitalist”).

      [373].     Michael Lyle, Prison System’s Approach to Inmates’ Money Bewilders Legislators, Nev. Current (May 20, 2021), https://www.nevadacurrent.com/2021/05/20/prison-systems-approach-to-inmates-money-bewilders-legislators/ [https://perma.cc/7B2K-WFQS].

      [374].     Ams. for Effective L. Enf’t, Legal Issues Pertaining to Inmate Funds, 4 AELE Monthly L.J. 301, 306 (Apr. 2008).

      [375].     See Plunkett, supra note 97, at 68.

      [376].     See Corey Jones, Audit: Tulsa Jail Inmate Account Records So Poor Investigators Can’t Say How Much Money Is Missing, Tulsa World (Jan. 10, 2017), https://tulsaworld.com/news/local/crime-and-courts/audit-tulsa-jail-inmate-account-records-so-poor-investigators-cant-say-how-much-money-is/article_93b3cac0-37ca-548a-a34b-b738d0ab6874.html [https://perma.cc/4AFC-WEFU]; Catherine Marfin, Ex-Dallas County Sheriff’s Worker Admits Embezzling More than $250K from Inmate Fund, Dal. Morning News (June 17, 2022), https://www.dallasnews.com/news/courts/2022/06/17/ex-dallas-county-sheriffs-worker-admits-embezzling-more-than-250k-from-inmate-fund/ [https://perma.cc/RX7P-6YRJ].

      [377].     First Amend This!: An IDOC Newsletter, Feb. ’22, Book Of Irving #82431 (Feb. 5, 2022).

      [378].     See, e.g., Big Shortage Is Revealed by Auditor, Clinton Daily News 1 (Dec. 12, 1947) (detailing that a prison official was charged after $157,821.47 in cash and canteen coupons went missing from an Oklahoma prison); GOP Auditor Candidate Questions Transfer Action, Albuquerque J. 22 (Sept. 30, 1954) (discussing an official accused of pulling funds from inmate trust account to cover a penitentiary budget shortage); Ruling Declares Warden Liable for Trust Fund, Desert News & Salt Lake Telegram 22 (Mar. 12, 1957); Jail Bookkeeper Named in Theft, Chi. Trib. 18 (Oct. 16, 1970) (reporting that employee had embezzled about $5,000 by writing checks to herself over the course of two or three years).

      [379].     Jones, supra note 376.

      [380].     Audit Faults Oregon Prison Trust Fund System, Prison L. News (Dec. 15, 2003), https://www.prisonlegalnews.org/news/2003/dec/15/audit-faults-oregon-prison-trust-fund-system/ [https://perma.cc/CA3K-2MAB].

      [381].     Id.

      [382].     Jimmy Jenkins, Audit Finds Nearly $1 Million In Unreconciled Arizona Inmate Trust Accounts, KJZZ 91.5 (Nov. 3, 2020), https://kjzz.org/content/1632470/audit-finds-nearly-1-million-unreconciled-arizona-inmate-trust-accounts [https://perma.cc/CEF6-85VZ].

      [383].     Matthew Reisen, Thousands Stolen from MDC Inmates, Audit Says, Albuquerque J. (Nov. 26, 2020),

https://www.abqjournal.com/1521590/thousands-stolen-from-mdc-inmates-audit-says.html [https://perma.cc/FZW5-L39C].

      [384].     Ryan Dunn, Toledo Woman Charged in Theft from Lucas County Jail Inmate Account, The Blade (Feb. 12, 2018), https://www.toledoblade.com/local/police-fire/2018/02/12/Toledo-woman-charged-in-theft-from-Lucas-County-jail-inmate-account/stories/20180212153 [https://perma.cc/EXM5-KKSL].

      [385].     Ken Childers, Former Sheriff’s Office Secretary Arrested for Embezzlement, Okemah News Leader (Aug. 1, 2020), https://www.okemahnewsleader.com/2020/08/01/former-sheriffs-office-secretary-arrested-for-embezzlement/ [https://perma.cc/9AYD-SCAP]; Colleen Wilson, Former Pawnee County Jail Administrator Accused of Embezzling Inmate’s Cash, KOKH (Aug. 31, 2021), https://okcfox.com/news/local/former-pawnee-county-jail-administrator-charged-with-embezzlement [https://perma.cc/7ZLP-E55J].

      [386].     Hearing on SB 416 Before the Senate Committee on the Judiciary, 82nd Leg. Sess. 1 (Nev. 2023) (Testimony of Amelia Booth), https://www.leg.state.nv.us/App/NELIS/REL/82nd2023/ExhibitDocument/OpenExhibitDocument?exhibitId=67391&fileDownloadName=SB416_SupportLetter_AmeliaBooth.pdf [https://perma.cc/U3BV-YFQX].

      [387].     Id. at 1–2.

      [388].     Id. at 1.

      [389].     Id.

      [390].     Id. at 2.

      [391].     Id.

      [392].     Id.

      [393].     Id. at 2.

      [394].     Hearing on SB 416 Before the Senate Committee on the Judiciary, 82nd Leg. Sess. 1 (Nev. 2023) (Testimony of Crystal Voight), https://www.leg.state.nv.us/Session/82nd2023/Minutes/Senate/FIN/Final/1208.pdf [https://perma.cc/G56C-WWQV].

      [395].     Hearing on SB 416 Before the Senate Committee on the Judiciary, 82nd Leg. Sess. 1 (Nev. 2023) (Testimony of Nicole Williams), https://www.leg.state.nv.us/Session/82nd2023/Minutes/Senate/FIN/Final/1208.pdf [https://perma.cc/5E2A-A2FK].

      [396].     John H. Langbein, Questioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest? 114 Yale L.J. 929, 934 (2005).

      [397].     The problems with fintech and the captive markets of prisons have been written about extensively. See Raher, supra note 9, at 18–20; Akenhead, supra note 316, at 1231–35; Wagner, supra note 100; Banks/Banking: A Curated Collection of Links, The Marshall Project (Mar. 18, 2024), https://www.themarshallproject.org/records/1394-banks-banking [https://perma.cc/977V-2GDT]; Eli Tan, New York May Drop JPay, The Scandal-Plagued Prison Banking Company, N.Y. Focus (Oct. 21, 2022), https://www.nysfocus.com/2022/10/21/new-york-may-end-jpay-contract/ [https://perma.cc/RK7W-CJQR]; German Lopez, How Private Bankers Cash in on Released Prisoners, Vox (Nov. 3, 2015), https://www.vox.com/explainers/2015/11/3/9661554/prison-bank-prepaid-card [https://perma.cc/AJ2U-LP7V]; Wanda Bertram, The CFPB’s Enforcement Order Against Prison Profiteer JPay, Explained, Prison Pol’y Initiative (Oct. 28, 2021), https://www.prisonpolicy.org/blog/2021/10/28/cfpb-jpay/ [https://perma.cc/4HUA-J4Z2].

      [398].     See Wagner & Jones, supra note 320; Lopez, supra note 397.

      [399].     Devlin Barrett, Prison Officials Allowed Convicted Sex Abuser Larry Nassar to Pay Little to Victims While Spending Thousands on Himself, Wash. Post (July 28, 2021), https://www.washingtonpost.com/national-security/larry-nassar-prison-bank-account/2021/07/28/abdf6560-ee14-11eb-bf80-e3877d9c5f06_story.html [https://perma.cc/M6JC-LYD4]; Devlin Barrett, U.S. Prison Officials Resist Making Inmates Pay Court-Ordered Victim Fees, Wash. Post (Aug. 4, 2022), https://www.washingtonpost.com/national-security/2022/08/04/federal-prisons-money-victims/ [https://perma.cc/2CG7-3EZC]; Devlin Barrett, Federal Inmates Would Pay More to Victims Under New Justice Dept. Rule, Wash. Post (Jan. 9, 2023), https://www.washingtonpost.com/national-security/2023/01/09/prisoner-accounts-new-rules-victims/ [https://perma.cc/WQ6E-456W].

      [400].     See supra note 399.

      [401].     Devlin Barrett, Federal Inmates Would Pay More to Victims Under New Justice Dept. Rule, supra note 399; Letter from K. Harne, U.S. Dep’t of Just., to Jason Wojdylo, Fed. Managers Ass’n, U.S. Marshals Serv. Ch. 373 (July 18, 2022) (responding to a Freedom of Information Act request).

      [402].     See Dale Chappel, BOP Trust Fund Accounts Reportedly Shield Prisoners from Payment Obligations, Prison L. News (Dec. 1, 2021), https://www.prisonlegalnews.org/news/2021/dec/1/bop-trust-fund-accounts-reportedly-shield-prisoners-payment-obligations/ [https://perma.cc/EUT9-WDWK] (detailing that even some law enforcement agencies are critical of the lack of transparency around prison accounts and their lack of regulation and oversight of traditional bank accounts, making them susceptible to abuse); see also Akenhead, supra note 316, at 1247 (describing particular transparency problems surrounding private entity contracts with the government).

      [403].     See supra note 283. Funds contained in inmate trust accounts may be buried in other line items, but the published annual budget documents do not specify.

      [404].     The federal system has a more regularized accounting practice for inmate trust accounts. See U.S. Dep’t of Just., supra note 78, at 16 (“The Trust Fund (Treasury Account Symbol 15X8408) and the Inmate Deposit Fund (Treasury Account Symbol 15X6085) are the control accounts for Trust Fund operations. These two appropriation-level accounts and their related general ledger accounts are maintained using Generally Accepted Accounting Principles (GAAP), the automated financial accounting system, the Trust Fund Accounting and Commissary System (TRUFACS), and the Inmate Telephone System (TRUFONE).”).

      [405].     Telephone Call with JPay Representative (Mar. 17, 2023).

      [406].     Tenn. Code Ann. § 41-21-801(4) (Lexis Advance through Chapter 524 of the 2024 Reg. Sess.).

      [407].     See Tenn. Code Ann. § 41-6-303(a), (b) (Lexis Advance through Chapter 524 of the 2024 Reg. Sess.) (prisons can seize profits from arts and crafts sales); Tenn. Code Ann. § 41-4-142(a), (b) (Lexis Advance through Chapter 524 of the 2024 Reg. Sess.) (prisons can deduct costs for educational programming, certain transportation costs, and items provided to newly admitted incarcerated people); Tenn. Code Ann. § 41-21-511(b) (Lexis Advance through Chapter 524 of the 2024 Reg. Sess.) (prisons can charge individuals in work release programs for room and board); Tenn. Code Ann. § 41-21-808(b) (Lexis Advance through Chapter 524 of the 2024 Reg. Sess.) (prisons can charge for court costs if an individual loses a lawsuit); Tenn. Code Ann. § 41-21-807(b) (Lexis Advance through Chapter 524 of the 2024 Reg. Sess.) (prisons can deduct for filing fees). Massachusetts, by contrast, offers a more comprehensive statutory and regulatory framework that lays out how funds get into the account, how and when deductions can be made, how the fund is managed, oversight mechanisms, and the accrued interest. See 103 MASS. CODE REGS §§ 405.04, 464.13, 911.08 (2024).

      [408].     See Littman, supra note 15, at 1389 (“Regulatory violations do not necessarily offend the Constitution, which treats free-world standards—thresholds for toxic particulates, say—more as safe harbors than as floors.”).

      [409].     Harrell v. State, 286 S.W.3d 315, 320 (Tex. 2009).

      [410].     Id. at 319–20.

      [411].     Id. at 320 (citing examples).

      [412].     Id. at 320 n.4 (citing cases in which withdrawal amounts were far greater than the court costs on record); see also Sickles v. Campbell Cnty., 501 F.3d 726, 730 (6th Cir. 2007) (finding no right to a pre-deprivation hearing for deducting fees from inmate trust account because of the low risk of erroneous deprivation).

      [413].     Matson v. Kan. Dep’t of Corr., 346 P.3d 327, 331 (Kan. Ct. App. 2015) (Biles, J., concurring).

      [414].     Id.

      [415].     42 U.S.C.A. § 1997e (West).

      [416].     See Consumer Fin. Prot. Bureau, supra note 16, at 18; see also Daniel Wagner, Prison Bankers Cash in on Captive Customers, Ctr. for Pub. Integrity (Sept. 30, 2014), https://publicintegrity.org/inequality-poverty-opportunity/prison-bankers-cash-in-on-captive-customers/ [https://perma.cc/RMH2-PJN6] (describing how a family member tried to complain to JPay about delayed deposits, but customer service representative hung up on her). Prison banking vendors’ poor customer service is not surprising given that the consumer market is, quite literally, a captive one with no market competition incentivizing vendors to improve consumer experiences. See Raher, supra note 9, at 30 (“In normal markets, such behavior [marketing a low-quality product at a premium price] is mitigated by competition and consumer choice, but not so inside prison walls.”).

      [417].     See, e.g., Brazier v. Cal. Dep’t of Corr. & Rehab., 523 F. App’x 477, 477–78 (9th Cir. 2013) (affirming the district court’s dismissal of Brazier’s due process claim against the California Department of Correction and Rehabilitation based in part on sovereign immunity); Kimble v. Texas Dep’t of Crim. Just., Inmate Tr. Fund, No. 1:22-CV-122, 2022 WL 17408416, at *2 (E.D. Tex. Oct. 26, 2022), report and recommendation adopted, No. 1:22-CV-122, 2022 WL 17404886 (E.D. Tex. Dec. 1, 2022) (finding that plaintiff should have pursued different theory in state court).

      [418].     See Justice-Involved Individuals and Marketplace, Consumer Fin. Prot. Bureau 42 (Jan. 31, 2022), https://s3.amazonaws.com/files.consumerfinance.gov/f/documents/cfpb_jic_report_2022-01.pdf [https://perma.cc/GYY7-BXCB] (“The consequences for failing to pay justice-related debt may be more severe than the consequences for failing to pay consumer debts, in part because the Fair Debt Collection Practices Act (FDCPA) often does not apply to the collection of justice-related debt.”).

      [419].     See Emily Tunink, Does Interest Always Follow Principal?: A Prisoner’s Property Right to the Interest Earned on His Inmate Account under Young v. Wall, 642 F.3d 49 (1st Cir. 2011), 92 Neb. L. Rev. 212, 218 n.44 (2013) (discussing circuit split). But see Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1201 (9th Cir. 1998) (relying on the common law rule of “interest follows principal” to conclude that depriving incarcerated people of the interest that accrues in their prison accounts violates the Takings Clause).

      [420].     The pro se nature of the litigation may explain the failure of these claims. Federal courts, for example, regularly dismiss due process claims relating to inmate trust accounts for failure to allege that state law claims like conversion or replevin are inadequate. See, e.g., Moore v. Washington, No. 1:20-cv-1184, 2021 WL 508304, at *4 (W.D. Mich. Feb. 11, 2021) (dismissing Moore’s pro se complaint seeking return of his CARES Act stimulus check). But there is little evidence that such claims are successful in Michigan state courts. As recently as 2018 a Michigan trial court found that it lacked subject matter jurisdiction over a claim that $250 had been unlawfully confiscated from an incarcerated person’s account. Jackson v. Dir. of Dep’t of Corr., 329 Mich. App. 422, 424, 942 N.W.2d 635, 636 (2019). The Michigan Court of Appeals reversed the decision. Id.

      [421].     See Gillihan v. Shillinger, 872 F.2d 935, 938–39 (10th Cir. 1989).

      [422].     Clark v. Wilson, 625 F.3d 686, 690–92 (10th Cir. 2010) (citing Sandin v. Connor, 515 U.S. 472, 484 (1995)).

      [423].     Id.

      [424].     Young v. Wall, 642 F.3d 49, 53 (1st Cir. 2011) (citing Reynolds v. Wagner, 128 F.3d 166, 179 (3d Cir.1997)) (arguing that “the states mistakenly restrict prisoners’ property interests in light of modern jurisprudence”). For a detailed look at the complicated nature of incarcerated people’s property rights, see Colunga, supra note 328, at 806.

      [425].     Young, 642 F.3d at 54.

      [426].     Id. (omitting citations).

      [427].     See generally Shropshire v. Fajota, No. 3:15-cv-00164-RCJ-WGC, 2016 WL 5346958, at *5 (D. Nev. Aug. 18, 2016), report and recommendation adopted, No. 3:15-c-00164-RCJ-WGC, 2016 WL 5339667 (D. Nev. Sept. 22, 2016), aff’d, 698 F. App’x 466 (9th Cir. 2017) (recommending dismissal for failure to exhaust administrative remedies where plaintiff alleged that prison improperly garnished inmate trust account funds that should have been protected under federal law); Simpson v. Martin, No. CIV-20-985-C, 2021 WL 3478214, at *9 (W.D. Okla. June 30, 2021), report and recommendation adopted, No. CIV-20-985-C, 2021 WL 3476613 (W.D. Okla. Aug. 6, 2021), aff’d, No. 21-6104, 2022 WL 1087139 (10th Cir. Apr. 12, 2022) (recommending dismissal where plaintiff failed to properly follow prison’s labyrinthine grievance process because, among other things, he failed to use the proper number of envelopes, then submitted a second appeal rather than resubmitting the first appeal and, by that point, had run out of the allotted time for filing the appeal).

      [428].     Like other types of prison lawsuits, courts dismiss many suits over inmate trust accounts for failure to exhaust administrative remedies. For example, see Beal v. Wash., No. 1:21-CV-522, 2022 WL 17094179, at *5 (W.D. Mich. Oct. 18, 2022), report and recommendation adopted, No. 1:21-CV-522, 2022 WL 17093505 (W.D. Mich. Nov. 20, 2022).

      [429].     See Shropshire, 2016 WL 5346958, at *4 (describing a four-stage grievance process).

      [430].     Id. at *5; see also Simpson v. Martin, No. CIV-20-985-C, 2021 WL 3478214, at *9 (W.D. Okla. June 30, 2021), report and recommendation adopted, No. CIV-20-985-C, 2021 WL 3476613 (W.D. Okla. Aug. 6, 2021), aff’d, No. 21-6104, 2022 WL 1087139 (10th Cir. Apr. 12, 2022) (granting summary judgment to the defendant because of failure to exhaust administrative remedies where the plaintiff had refiled a previous grievance that went unanswered).

      [431].     Pearson v. Callahan, 555 U.S. 223, 231 (2009).

      [432].     About AELE, Ams. for Effective L. Enf’t, https://www.aele.org/about-aele.html [https://perma.cc/V7NY-RNDQ] (last visited).

      [433].     Ams. for Effective L. Enf’t, supra note 374, at 302.

      [434].     Id.

      [435].     Id. at 303.

      [436].     Id.

      [437].     Id. at 303–04.

      [438].     Id. at 304.

      [439].     Id. at 303.

      [440].     Sultan v. Fenoglio, 775 F.3d 888, 890 (7th Cir. 2015).

      [441].     Id.

      [442].     Menendez et al., supra note 275.

      [443].     Id. at 5.

      [444].     Id.

      [445].     Id. For a thorough explanation of the difficulty of calculating actual enforcement costs, see Menendez, Eisen, & Crowley, supra note 294, at 169–74.

      [446].     See, e.g., Corr. Corp. of Am., Inmate/Resident Trust Funds Policy for Metro-Davidson County Detention Facility 2-5.1, 2-5.2, 2-5.4 (Dec. 8, 2008), https://www.prisonlegalnews.org/news/publications/inmate-accounts-policy-metro-davidson-co-detention-facility-cca-2009/ [https://perma.cc/3SZ6-VUDH] (detailing the role of the facility’s business manager or operations manager in using a computer system called IMS2 to make deductions and withdrawals, some that the incarcerated person requested and some that they neither requested nor authorized).

      [447].     See Ellibee v. Simmons, 85 P.3d 216, 219 (Kan. Ct. App. 2004) (upholding mandatory savings program to hold funds for release even for individuals serving life sentences).

      [448].     For a thorough critique of the limits of a litigation or regulatory approach to restrict abuses by private companies providing financial services for prisons, see Kolkey, supra note 9, at 283–86; see also Littman, supra note 15, at 1424–35 (2021) (describing the primary barriers to free-world regulation in prisons).

      [449].     See U.S. Payment System Policy Issues: Faster Payments and Innovation, Cong. Rsch. Serv. 4–6 (Sept. 2019) (providing overview of the regulatory framework), https://sgp.fas.org/crs/misc/R45927.pdf [https://perma.cc/QP38-SQXV].

      [450].     See Mehrsa Baradaran, Banking on Democracy, 98 Wash. U. L. Rev. 353, 357 (2020). (“Generally, financial services can be divided into two categories: the payments system and the credit system.”).

      [451].     See generally Nat’l Consumer L. Ctr., Consumer Banking and Payments Law (6th ed. 2018), https://library.nclc.org/book/consumer-banking-and-payments-law/125-how-payment-bank-or-prepaid-account-works [https://perma.cc/U6BE-NF6K] (highlighting that while narrower than the broader field of money regulation, the intersection of the two fields is not small).

      [452].     According to the CFPB itself: “The CFPB wants to ensure any new payment systems are secure, transparent, accessible, and affordable to consumers. The systems should also have robust protections when it comes to fraud and error resolution.” Consumer Fin. Prot. Bureau, CFPB Outlines Guiding Principles for Faster Payment Networks (July 9, 2015), https://www.consumerfinance.gov/about-us/newsroom/cfpb-outlines-guiding-principles-for-faster-payment-networks/ [https://perma.cc/8Z73-M4JZ].

      [453].     Consumer Fin. Prot. Bureau, Statement of CFPB Director Rohit Chopra on the JPay Enforcement Action 1 (Oct. 19, 2021), https://files.consumerfinance.gov/f/documents/cfpb_jpay-llc_director-statement_2021-10.pdf [https://perma.cc/3GDT-2U4Q].

      [454].     Id.

      [455].     Private vendors agree to be bound by the provisions of the Electronic Funds Transfer Act. See Keefe Commissary Network, LLC, Original Technical Proposal, W. Va. Div. of Corr. 39 (Apr. 10, 2014) https://www.prisonpolicy.org/contracts/documents.html?text-search-fields=facility-and-remarks&q=&q-state=&q-document-type=&q-service=inmate-banking-software&q-vendor=&sort=state#search-form [https://perma.cc/L5GD-8PVC].

      [456].     See Kolkey, supra note 9, at 279–80 (explaining the limitations of the CFPB’s regulation of prison financial service providers).

      [457].     15 U.S.C. § 1693 et seq.

      [458].     12 U.S.C. § 5481 et seq.

      [459].     See Kolkey, supra note 9, at 279–80 (highlighting the limitations of the Electronic Funds Transfer Act as a regulatory tool in this context).

      [460].     See supra note 162.

      [461].     Restatement (Third) of Trusts § 2 (Am. L. Inst. 2003).

      [462].     See supra notes 164–165. Under government accounting standards, the question whether a government agrees that the account is a trust raises a chicken-and-egg problem. Government accounting standards prohibit the government from being a beneficiary of a fiduciary fund, and that requirement is baked into the definition of a fiduciary fund. Governments may well claim not to be bound by accounting standards when it comes to inmate trust accounts because, when the government self-deals as it does, the account is no longer a fiduciary fund. In other words, the point of the accounting standards seems to be, in part, creating accountability around the handling of others’ money, and the government’s claim over some interest in that money creates the very problem that the accounting standards attempt to solve.

      [463].     In a different context, the Supreme Court addressed the federal government’s obligations regarding tribal funds held in trust under federal law. Although the Court found that the government’s obligations “bear some resemblance to those of a private trustee,” United States v. Jicarilla Apache Nation, 564 U.S. 162, 163 (2011), government trust obligations are shaped by a sovereign’s statutes and regulations. The Office of Legal Counsel, however, has distinguished federal tribal funds from inmate trust accounts for many reasons, including that “the moneys in inmates’ Prisoners’ Trust Fund accounts are truly personal funds.” Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund, supra note 95, at 138.

      [464].     Salter v. United States, 119 Fed. Cl. 359, 367 (2014).

      [465].     Id.

      [466].     Id.

      [467].     Id.

      [468].     Id. When it comes to private fiduciary obligations, the CFPB explains: “A fiduciary is someone who manages money or property for someone else. When you’re named a fiduciary and accept the role, you must – by law – manage the person’s money and property for their benefit, not yours.” Consumer Fin. Prot. Bureau, What is a Fiduciary? (June 27, 2023), https://www.consumerfinance.gov/ask-cfpb/what-is-a-fiduciary-en-1769/ [https://perma.cc/36Z3-C74W]. The CFPB’s explanation is directed toward individuals who manage another person’s money, but it offers other examples of fiduciaries, such as in the context of conservatorships, trust law, and social security representative payees.

      [469].     See Davis v. United States, No. 20–1071, 2022 WL 1618052, at *7 (Fed. Cl. May 20, 2022); Williams v. United States, 165 Fed. Cl. 72, 75 n.2 (2023) (noting that, generally, a “department of corrections acts as a trustee of the account with the inmate as the beneficiary”).

      [470].     See Matson v. Kan. Dep’t of Corr., 346 P.3d 327, 330 (Kan. Ct. App. 2015); Doty v. Doyle, 182 F. Supp. 2d 750, 753 (E.D. Wis. 2002); Retzlaff v. Deshay, No. 14-03-00833-CV, 2004 WL 2163173, at *5 (Tex. Ct. App. Sept. 28, 2004); see also Cal. Penal Code § 5008 (West, Westlaw through Ch. 8 of 2024 Reg. Sess.) (stating that money in inmate trust accounts shall be held “in trust with the Treasurer”).

      [471].     Lytle v. N.C. Dep’t of Pub. Safety, 249 N.C. App. 682, 791 S.E.2d 877, **2 (2016).

      [472].     Id.

      [473].     Spence v. McCaughtry, 46 F. Supp. 2d 861, 862–63 (E.D. Wis. 1999) (citations omitted).

      [474].     Matson, 346 P.3d at 330.

      [475].     Id.

      [476].     “Several bodies of state and federal legislation dealing with various types of charitable, public, or pension (governmental and private) funds expressly or impliedly incorporate rules of the general trust law that is the subject of this Restatement.” Restatement (Third) of Trusts § 1 cmt. a (Am. L. Inst. 2003).

      [477].     Governmental Acct. Standards Bd., Statement No. 84 of the Governmental Accounting Standards Board: Fiduciary Activities 3 (Jan. 2017).

      [478].     Id.; see generally Governmental Acct. Standards Bd., Implementation Guide No. 2019-2, Fiduciary Activities (June 2019) (providing guidance on implementing Statement 84 and discussing pensions throughout). The three types of fiduciary funds are investment trust funds, private-purpose trust funds, and post-employment trust funds like pensions. Governmental Acct. Standards Bd., Statement No. 84 at ii, supra note 477.

      [479].     Non-binding accounting standards are set by the Government Accounting Standards Board for state and local governments and the Federal Accounting Standards Advisory Board (FASAB) for the federal government. For federal standards applicable to fiduciary fund activities, see generally Federal Acct. Standards Advisory Bd., Statement of Federal Financial Accounting Standards 31: Accounting for Fiduciary Activities (Oct. 24, 2006), in Federal Accounting Standards Advisory Board, FASAB Handbook of Federal Accounting Standards and Other Pronouncements, As Amended (June 30, 2022), at https://files.fasab.gov/pdffiles/2022_%20FASAB_%20Handbook.pdf [https://perma.cc/3NYJ-QS7M] (defining fiduciary activities as distinct from simple earmarks, describing the reporting practices applicable, and explaining accounting standards applicable to such activities); Warren Gorham & Lamont, FASAB Splits “Trust Fund” Project in Two, in Government Accounting & Auditing Updates (Oct. 2002), 2002 WL 32121294 (describing FASAB’s work disentangling accounting terminology to account for the different types of “trust funds” that appear in government budgets).

      [480].     See id.

      [481].     Governmental Acct. Standards Bd., Implementation Guide No. 2019-2, Fiduciary Activities 1212 (June 2019).

      [482].     Governmental Acct. Standards Bd., Why Governmental Accounting and Financial Reporting Is—and Should Be—Different 14 (undated), at https://gasb.org/document/blob?fileName=White_Paper_Revised_September_2017.pdf [https://perma.cc/GDD2-HMT9].

      [483].     Nick Shepack, Nevada Ends Exploitative Incarceration Costs While Laying Groundwork for Future Misdemeanor Reform, Fines & Fees Just. Ctr. (July 13, 2023), https://finesandfeesjusticecenter.org/2023/07/13/nevada-ends-exploitative-incarceration-costs-while-laying-groundwork-for-future-misdemeanor-reform/ [https://perma.cc/35DM-W8BG].

      [484].     Id.

      [485].     Jamelia Morgan, Responding to Abolitionist Anxieties: A Roadmap for Legal Analysis, 120 Mich. L. Rev. 1199, 1202 (2022) (“The ‘what’ of abolition involves imagining and creating a new world. This act of ‘building’ is a foundational, though often overlooked, aspect of abolitionist thinking and organizing.”).

      [486].     Justin Driver & Emma Kaufman, The Incoherence of Prison Law, 135 Harv. L. Rev. 516, 569 (2021).

      [487].     Id. Driver and Kaufman emphasize that inconsistent claims about the nature and risk of violence in prisons are not accidental. “The incoherence of prison law is a form of selective empiricism that serves a coherent end: it is a powerful, subtle method to keep rights in check.” Id. at 571.

      [488].     Broad segments of the population are chronically underbanked. Without access to private banking institutions and non-predatory online options, eliminating inmate trust accounts would leave many with no options for spending money within prisons. See Inclusive Banking During a Pandemic: Using FedAccounts and Digital Tools to Improve Delivery of Stimulus Payments: Hearing Before the House Committee on Financial Services, 116th Cong. 1–3 (2020) (testimony of Mehrsa Baradaran) (describing the extent of under-banking and poor communities’ lack of access to financial technology).

      [489].     See, e.g., Jones & Maynard, supra note 282, at 804.

      [490].     For people in the free world, the fees relate directly to the deposit itself, rather than to broader debts that the individual might hold. See Mehrsa Baradaran, Rethinking Financial Inclusion: Designing an Equitable Financial System with Public Policy, Roosevelt Inst. 2 (Apr. 2020), https://rooseveltinstitute.org/wp-content/uploads/2020/07/RI_FinancialInclusion_Working-Paper_202003.pdf [https://perma.cc/ZJ2B-QE63].

      [491].     Id. at 3.

      [492].     See Mehrsa Baradaran, Banking on Democracy, 98 Wash. U. L. Rev. 353, 357 (2020).

      [493].     See Kolkey, supra note 9, at 260.

      [494].     See Littman, supra note 15, at 1416 n.145.

      [495].     See Kolkey, supra note 9, at 289–95.

      [496].     See Banking the Unbanked: Exploring Private and Public Efforts to Expand Access to the Financial System: Hearing Before the House Committee on Financial Services, 117th Cong. (2021) (testimony of Mehrsa Baradaran) https://www.govinfo.gov/content/pkg/CHRG-117hhrg45508/html/CHRG-117hhrg45508.htm [https://perma.cc/AY97-WM7E] (“Congress already created a public payment system, the Federal Reserve. The Fed’s explicit charter is to serve the public interest and to increase the integrity, efficiency, and equity of the U.S. payment system. That was the mandate Congress gave it. I urge Congress to ensure that everyone has equal access to this vital public utility. I believe that the most effective way to do this is through a partnership between the Treasury, the Federal Reserve, and the postal banking system.”).

      [497].     According to Jamelia Morgan, “Transformative justice is a community-led process developed by activists committed to antiviolence and is therefore something the criminal system can simply never provide.” Morgan, supra note 485, at 1204.