Prison Banking

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VanCleave

PRISON BANKING
Abstract
People in prison have no choice but to use the banking systems that
prisons operate. Rather than use any 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,
and prisons take this money in a variety of ways: Prisons 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,
impose fines as punishment for disciplinary infractions, divert the money at
the behest of courts and criminal system agencies to pay other fines and fees,
and collect the interest from the pooled accounts. Sometimes prisons seize
large portions of a person’s inmate 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 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.
Prison systems 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, prison bank
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 should be
permitted to operate a low-transparency banking system over which they
have exclusive control, are subjected to little regulation, and act with a high
degree of conflict of interest.

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PRISON BANKING
I.
II.

III.

IV.
V.

Introduction
What Are Inmate Trust Accounts?
a. Descriptions, Justifications and Purposes of Inmate Trust
Accounts
b. Statutory and Regulatory Frameworks and Failures
Problems with the Current System: Legal and Illegal Abuses
a. Prison Banking and Its Historical Contexts
b. Inmate Trust Accounts Today: Forms of Asset Seizure
c. Impacts of Asset Seizure
d. Problematic Features of Prison Banking Systems
1. Conflicts of Interest
2. Low Transparency and Oversight
3. Minimal Regulation
4. Lack of Judicial Recourse
5. Low Transaction Costs
e. Change Resistance
Paths Forward
a. Increasing Regulation, Transparency, and Oversight
b. Abolition
Conclusion

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PRISON BANKING
by Anna VanCleave1
“It is the duty of the master of a work-house to furnish a
prisoner therein with food; and the earnings of such prisoner
are a fund in the hands of the master for his remuneration.”
-Washburn v. Belknap, Connecticut Supreme Court (1821)2
I.

Introduction

When federal lawmakers passed the CARES Act and the government
sent stimulus checks to 162 million Americans,3 the recipients included
people in prison.4 Despite efforts by federal officials to claw back checks sent
to people in prison,5 a federal district court ordered the IRS to continue
making those payments to incarcerated people and to take steps to facilitate
the process.6
On purely economic grounds alone, sending 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. They
receive financial support from family and friends on the outside, and they
constitute a captive market for the prison vendors that provide—usually at
highly inflated charges—their food, their medical care, their phone calls,
1 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, Jessica Den Houter, Sandeep Dhaliwal, April Fernandes, Eduardo Ferrer, Brittany
Friedman, Gabriela Kirk-Werner, Justin Iverson, John Langbein, Christopher Lau, Da’ee
Muhammad McKnight, Joshua Perry, Stephen Raher, Jenny Roberts, Denise Rock, 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. All mistakes are, of course, my own.
2 3 Conn. 502, 502 (Conn. 1821).
3 Internal Revenue Service, SOI Tax Stats—Coronavirus Aid, Relief, and Economic Security Act
(CARES Act) Statistics: First Round Economic Impact Payment Statistics (June 15, 2022) (available
at
https://www.irs.gov/statistics/soi-tax-stats-coronavirus-aid-relief-and-economicsecurity-act-cares-act-statistics#EIP3).
4Rebecca Boone, U.S. Inmates Got Virus Relief Checks, and IRS Wants Them Back, PBS NEWS
HOUR (June 24, 2022, 2:21PM), https://www.pbs.org/newshour/economy/u-s-inmates-gotvirus-relief-checks-and-irs-wants-them-back (noting that the law did not explicitly exclude
people in prison).
5 Id. See also Jordan Michael Smith, Prisoners Face “Undue Punishment” as the IRS Claws Back
Their Stimulus Checks, THE APPEAL (June 8, 2020), https://theappeal.org/prisoners-stimuluschecks/.
6 Frequently Asked Questions About CARES Act Relief for Incarcerated People, LIEFF, CALABRASER,
HEIMANN & BERNSTEIN LLP, https://www.lieffcabraser.com/pdf/CARES_CASE_FAQ.pdf.

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their internet access, their soap, their clothes, their radios, their deodorant,
and even, sometimes, their water.7 Families go into debt to pay costs and
support the daily needs of relatives in prison,8 and financial support to
incarcerated people therefore translates to much-needed economic relief for
their families. In short, like individuals who received stimulus payments
across the country, people in prison are economic actors as consumers and
household members, and like much of the country, they are chronically in
need of money to meet their daily needs.9
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.”10 These accounts look something like
bank accounts to people in prison: Their prison wages are deposited in these
accounts, and when family members “put money on the books” for loved
ones, the funds go directly into these inmate trust accounts; people in prison
draw on these accounts to buy commissary items, pay for prison medical
care, make phone calls, and more.11 But unlike bank accounts, inmate trust
accounts operate under the authority of prison administrators.12 While nonincarcerated 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.13
Legally, the governmental entities overseeing prisons are tasked with
administering these government-run accounts.14 Practically, it is the
individuals within departments of corrections and jail administrations, at all
levels of these agencies—from correctional officers to staff members who
run commissary and prisoner accounts offices to the sheriffs, directors, and
commissioners making decisions and setting policies about the use of the
7 Stephen Raher, Since You Asked: Should Incarcerated People Be Receiving Stimulus Payments?,
PRISON
POLICY
INITIATIVE
(May
18,
2020),
https://www.prisonpolicy.org/blog/2020/05/18/checks/.
8 One study found that more than one-third of families with relatives in prison go into debt
to support them and pay for phone calls and visits. Who Pays? The True Cost of Incarceration on
Families,
ELLA
BAKER
CENTER
FOR
HUMAN
RIGHTS,
(September
2015),
https://www.whopaysreport.org/wp-content/uploads/2015/09/Who-Pays-FINAL.pdf.
9 See id.
10 “The funds are held by the correctional facility in a pooled deposit account, typically
referred to as an “inmate trust account.” 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); Sean Kolkey, People over Profit: The Case for Abolishing the Prison Financial System, 110
CAL. L. REV. 257, 269 (2022).
11
N.Y. DEP’T OF CORR. & COMM’Y SUPERVISION, ACCOUNT DEPOSITS,
https://doccs.ny.gov/account-deposits.
12 See infra, Section II.b.
13 See infra Section II.
14 See infra Section II.b.

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funds, fees for services, and contracts with vendors—who control when,
how, and to what degree people in prison can access and spend their
money.15 Unlike bank accounts or trust accounts in the free world, inmate
trust accounts are not highly regulated, they receive little external oversight,
and they are not managed by individuals who act with a fiduciary obligation
toward the people for whom these accounts exist.16
It should not have been surprising then that the large volume of
economic stimulus funding to people in prison resulted in large-scale
seizures by state and local governments.17 Across the country, stimulus
funds intended for people in prison simply disappeared before hitting their
inmate trust accounts.18
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.”19 Within weeks, Arkansas legislators passed a law
permitting the state to seize the entirety of the federal relief checks20 sent to
prisons, divert any funds owed for “court fines, fees, costs, or restitution,”21
and retain the rest to be deposited in equal amounts into an “inmate welfare
fund” and the prison’s general operating fund.22 In March 2022, 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 prison
accounts violated the Takings Clause of the Constitution.23
Other states found legal loopholes for seizing funds. In Michigan, for
example, prisons seized entire checks to satisfy “institutional debts” to the

15 See IDAHO DEP’T OF CORR. STANDARD OPERATING PROCEDURE 114.03.03.011 2–7 (2016) (listing
individuals involved in processing inmate trust account transactions, including
administrative financial officers, mailroom officers, financial technicians, and receptionists).
16 See Aaron Littman, Free-World Law Behind Bars, 131 YALE L. J. 1385, 1415–1417 (2022).
17Justice-Involved Individuals and Marketplace, CONSUMER FIN. PROT. BUREAU (Jan. 31, 2022),
https://s3.amazonaws.com/files.consumerfinance.gov/f/documents/cfpb_jic_report_2022
-01.pdf; Joseph Neff & Keri Blakinger, Prisoners Won the Right to Stimulus Checks, MARSHALL
PROJECT
(October
21,
2020,
3:00PM),
https://www.themarshallproject.org/2020/10/21/prisoners-won-the-right-to-stimuluschecks-some-prisons-are-standing-in-the-way.
18 CONSUMER FIN. PROT. BUREAU, supra note 17; Asher Stockler & Daniel Moritz-Rabson,
Prisons Are Skimming Chunks Off Cares Act Stimulus Payments, THE INTERCEPT (Feb. 17, 2021,
11:57AM), https://theintercept.com/2021/02/17/stimulus-checks-cares-prisons-skimmingirs/; Joseph Neff & Keri Blakinger, supra note 17.
19 Hayes v. Graves, No. 4:21-CV-00347-LPR, 2022 WL 822881, at *2 (E.D. Ark. Mar. 16, 2022).
20 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 Hayes v.
Graves, No. 4:21-CV-00347-LPR, 2022 WL 822881, at *3 (E.D. Ark. Mar. 16, 2022).
21 Hayes, 2022 WL 822881 at *2.
22 Id. The “inmate welfare fund” is defined as “a special fund to be administered and used ...
for the general benefit of the inmates....” Id.
23 Id.

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prison itself.24 One individual filed suit, alleging that prison officials had
convinced him to apply for stimulus funds but then took the check 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.”25 But under Michigan law, “institutional debts” include
a per diem cost of incarceration itself, and everything that entails—prison
buildings, staff, food, medical care, transportation, and more.26 In other
words, people in Michigan prisons owe the entire per capita cost of their
incarceration, and so for most or all prisoners, recovering that debt could
deplete entire savings—and certainly an entire federal stimulus check.27
Unlike the Arkansas law, Michigan’s seizure of payments was at least
ostensibly intended to cover a prison debt. A federal court therefore upheld
the practice.28
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 the prisons. In many circumstances,
prisons and jails justified taking funds on the grounds that the individuals
owed money for fees incurred for services and products while in prison, for
fines and fees associated with the individuals’ convictions, or, as in
Michigan, to reimburse the government for the cost of incarceration.29 One
public defender described a stack of about fifty letters from people in prison
with complaints about garnishment. She told a reporter that, on average,
people were seeing about 50 or 60 percent of their stimulus checks taken by
the prison or jail.30
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-prisonerstimulus-checks-covid-coronavirus/4818300001/. 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 M.D.O.C. using a policy directive to
reimburse in 100% percent [sic] for debts to further his destitute state. . . .”).
25 Moore v. Washington, No. 1:20-CV-1184, 2021 WL 508304, at *1 (W.D. Mich. Feb. 11, 2021).
26 See MICH. COMP. LAWS ANN. § 800.401a(b) (West).
27 See Jackson, supra note 24 (quoting 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.”).
28 Moore, 2021 WL 508304 at *4.
29 Stockler & Daniel Moritz-Rabson, Prisons Are Skimming Chunks Off Cares Act Stimulus
Payments,
THE
INTERCEPT
(Feb.
17,
2021,
11:57AM),
https://theintercept.com/2021/02/17/stimulus-checks-cares-prisons-skimming-irs/.
30 Tom Banse, Prisoners Eligible for Stimulus Checks, but Getting Payout Behind Bars Is
Complicated,
OR.
PUB.
BROAD.
(March
3,
2021,
9:23PM),
https://www.opb.org/article/2021/03/03/prison-stimulus-checks-inmate-relief-moneyoregon/.
24

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There was often little transparency with regard to how and why some
prisoners’ funds disappeared.31 The current system of prison banking is so
opaque that it can be difficult or impossible to figure out what the rationales
were for withholding portions of the stimulus checks, whether the withheld
funds were actually used to satisfy a creditor (as in the case of court debt),
or even the authority under which the prisons and jails claimed to exert
control over an account such that they could simply take money out and
reserve it to themselves or hand it to other governmental agencies.32
In some of the public commentary over the practice of seizing and
diverting stimulus funds from incarcerated people, experts opined that the
federal provisions that produced the stimulus payments simply failed to
expressly restrict or prohibit garnishment by prisons and that the prisons
and jails were—legally—exploiting the oversight.33 But this position
depends on the idea that, as a starting point, prisons 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 arena of non-carceral bank accounts or trust accounts, the seizure
of funds to satisfy supposed debts with so little public accounting would be
unthinkable.
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.34 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, incarcerated at a county
workhouse, and the issue of whether the warden could sue for the cost of
feeding him. For whatever reason, Belknap had not worked and earned
wages at the workhouse, and the warden had not forcibly compelled him to
do so.35 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 workhouse.”36 But without easy and immediate access to such a fund, the warden

31 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 (September 2015).
32 See McKinley v. Frentz, No. 17-CV0243-CAB, 2017 WL 2670996, at *4, *5 (S.D. Cal. June 21,
2017).
33 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 restriction or applied an unsupported and narrow interpretation to the provision. See, e.g.,
Beal v. Davids, No. 1:21-CV-522, 2021 WL 2934835, at *4 (W.D. Mich. July 13, 2021).
34 See, e.g., Cumbey v. State, 699 P.2d 1094, 1097 (Okla. 1985).
35 Washburn v. Belknap, 3 Conn. 502, 506 (Conn. 1821).
36 Id. at 506.

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had no right to demand such a payment.37 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, prison bank accounts have become vulnerable to
substantial abuse. Prison banking has a complex history that runs through
the post-Civil War racialized financial penalties and debt bondage of
formerly enslaved people and the rise of mass incarceration in the twentieth
century. It also has roots in the expansion of privatized prison services and
the economic policies that have 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.38
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, are subjected to little oversight, and
act with a high degree of conflict of interest. The large-scale seizure of
COVID 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.39
The influx of cash to incarcerated people during the pandemic made the
problems of the prison banking system apparent to many, simply because of
the scope and scale of the money seizures.40 But the public still has little
insight into how prisons manage the funds of others, as well as the degree
to which governments are continuing to siphon off the savings of people in
their custody every day and in smaller increments.41
Part II of this article provides an overview of inmate trust accounts, how
prison systems have implemented and justified them overtime, and the
current statutory and regulatory frameworks that govern them. This part
situates inmate trust accounts against two historical backdrops: the 2008
Id. at 507.
See infra, Section III.a and III.b.
39 Some media have suggested that, at least at the federal level, prisons are exercising too little
control over inmate trust accounts. See Devin 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-prisonermoney-victims/.
40 The unequal bargaining power of people in prison makes the lack of oversight all the more
troubling. See Stephen Raher, The Company Store and the Literally Captive Market: Consumer Law
in Prisons and Jails, 17 HASTINGS RACE & POVERTY L. J. 3, 9–10 (2020).
41 “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.” Id. at 20.
37
38

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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. Part III
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 IV 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.
II.

What Are Inmate Trust Accounts?

The legal status of inmate trust accounts is murky, as is the purpose for
which they exist. They have features of 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.42 They also have features of trust accounts, in that
prisons act as administrators of the funds, which are to be used in specific
ways for incarcerated people.43
But while inmate trust accounts look and function like bank accounts or
trust accounts, the 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,44 conflicted self-dealing by financial
institutions,45 disclosures of private transaction information,46 and human
42 Selena Maranjian, The Inmate Trust Fund – Explained, THE MOTLEY FOOL (July 5, 2017,
2:50PM)
https://www.fool.com/investing/2016/08/03/the-inmate-trust-fundexplained.aspx.
43 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 (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.” RESTATEMENT (THIRD) OF TRUSTS § 2 cmt. a (2003).
44 See, e.g., Fair Debt Collection Practices Act, Pub. L. 95-109; 91 Stat. 874 (1977) (amended
2010).
45 See, e.g., 12 C.F.R. 9.5(c) (2023) (“Fiduciary Activities of National Banks”).
46 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. RESERVE SYSTEM, DIV. OF
CONSUMER & CMTY. AFFAIRS, CONSUMER COMPLIANCE HANDBOOK, Reg. P (2023),
https://www.federalreserve.gov/boarddocs/supmanual/cch/consumer.pdf. 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

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error.47 Moreover, agencies provide substantial oversight over depository
institutions, and these agencies themselves are under heavy government
regulation.48 The federal government’s Office of the Comptroller of the
Currency, for example, oversees national banks and ensures that they
comply with laws and regulations that protect bank account holders.49
Under the OCC, national banks are audited extensively by independent
entities and have special rules governing fiduciary activities.50 The OCC
assesses banks’ activities to ensure the banks do not have conflicts of
interest.51 Together with the Consumer Financial Protection Bureau, the
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).
47 OFFICE OF THE COMPTROLLER OF THE CURRENCY, COMPTROLLER’S HANDBOOK, EXAMINATION
PROCESS,
BANK
SUPERVISION
PROCESS
12
(Sept.
2019),
https://www.occ.treas.gov/publications-and-resources/publications/comptrollershandbook/files/bank-supervision-process/index-bank-supervision-process.html.
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 App. B.
48 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 OFFICE OF THE COMPTROLLER OF THE CURRENCY, WHO
REGULATES MY BANK?, https://www.helpwithmybank.gov/who-regulates-my-bank/indexwho-regulates-bank.html; CONSUMER FINANCIAL PROTECTION BUREAU, SUPERVISION, WHAT THE
DIVISION
DOES,
https://www.consumerfinance.gov/aboutus/careers/supervision/#:~:text=The%20CFPB%20has%20primary%20authority,of%20the
%20banking%20industry%27s%20assets.
49
OFFICE OF THE COMPTROLLER OF THE CURRENCY, WHAT WE DO,
https://www.occ.treas.gov/about/what-we-do/index-what-we-do.html.
50 See generally OFFICE OF THE COMPTROLLER OF THE CURRENCY, SAFETY AND SOUNDNESS,
INTERNAL AND EXTERNAL AUDITS (July 2019), https://www.occ.treas.gov/publications-andresources/publications/comptrollers-handbook/files/internal-external-audits/indexinternal-external-audits.html.
51 See generally OFFICE OF THE COMPTROLLER OF THE CURRENCY, ASSET MANAGEMENT (AM),
CONFLICTS OF INTEREST (Jan. 2015), https://www.occ.treas.gov/publications-and-

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OCC regulates excessive, duplicative, and erroneous deductions by banks
from consumer bank accounts.52 Also under the oversight of the OCC, a debt
collector, even if the collector is the bank itself, must follow strict rules about
their 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.”53
The OCC conducts examinations of banks with regard to their payments
systems and specifically evaluates them 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.54
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

resources/publications/comptrollers-handbook/files/conflicts-of-interest/index-conflictsof-interest.html. 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.
52 See, e.g., Press Release, Consumer Fin. Prot. 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/aboutus/newsroom/bank-of-america-for-illegally-charging-junk-fees-withholding-credit-cardrewards-opening-fake-accounts/; N.Y. DEP’T OF FINANCIAL SERVICES, CONSUMER FEE
PRACTICES
IN
NEW
YORK
10,
https://www.dfs.ny.gov/system/files/documents/2023/07/rpt_20230714_consumer_fee_
practices_nys.pdf (describing sanctions imposed against Bank of America by OCC and CFPB
for assessing multiple fees for the same transactions).
53 OFFICE 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/comptrollershandbook/files/fair-debt-collection-practices-act/fair-debt-collection-practices-act.html.
54 OFFICE OF THE COMPTROLLER OF THE CURRENCY, SAFETY AND SOUNDNESS, PAYMENT SYSTEMS 62,
67,
70,
87
(Oct.
2021),
https://www.occ.treas.gov/publications-andresources/publications/comptrollers-handbook/files/payment-sys-funds-transferactivities/index-payment-systems-funds-transfer-activities.html.

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privacy,55 and protections against garnishment of federal benefits56 and
garnishment of substantial portions of wages.57 The Electronic Fund
Transfer Act and its implementing regulations set limits on certain fees for
money transfers and outlines an error resolution process for disputed
deductions.58
If inmate trust accounts were regulated in the same manner as freeworld trust accounts, oversight and regulation would also be substantial. If
the prison had the fiduciary obligations of a trustee, it would be “under a
duty not to profit at the expense of the other,” and “if the fiduciary enters
into a transaction with the other and fails to make full disclosure of all
relevant circumstances known to the fiduciary, or if the transaction is unfair
to the other, the transaction can be set aside by the other.”59 The trustee
would be required to “collect[] and protect[] trust property,”60 and would be
bound by duties of prudence,61 loyalty,62 impartiality and the duty to further
“income productivity.”63 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,”64 and could not “engag[e] in transactions that involve selfdealing or that otherwise involve or create a conflict between the trustee's
fiduciary duties and personal interests.”65
But courts and lawmakers have determined that the carceral setting
displaces sources of law that might otherwise regulate inmate trust
accounts.66 The provisions relating to prison banking exist largely in the
statutes and regulations that govern prisons, and outside of other areas of
See generally OFFICE OF THE COMPTROLLER OF THE CURRENCY, Privacy of Consumer Financial
Information
Oct.
2011),
https://www.occ.gov/publications-andresources/publications/comptrollers-handbook/files/privacy-consumer-financialinfo/index-privacy-of-consumer-financial-information.html.
56 See generally, OFFICE OF THE COMPTROLLER OF THE CURRENCY, GARNISHMENT OF ACCOUNTS
CONTAINING
FEDERAL
BENEFIT
PAYMENTS
(Apr.
2014),
https://www.occ.treas.gov/publications-and-resources/publications/comptrollershandbook/files/garnishment-of-accts/index-garnishment-accts-containing-fed-benefitpayments.html.
57 NATIONAL CONSUMER LAW CTR., HOW TO PROTECT WAGES AND BENEFITS FROM CREDITORS
(Nov. 12, 2019), https://library.nclc.org/article/protecting-wages-benefits-and-bankaccounts-judgment-creditors.
58 Electronic Fund Transfer Act, Pub. L. No. 95-630 §2001, 92 Stat. 3728 (1978); 12 C.F.R. 1005
(2023); CONSUMER FIN. PROT. BUREAU, ELECTRONIC FUND TRANSFERS FAQ,
https://www.consumerfinance.gov/compliance/compliance-resources/deposit-accountsresources/electronic-fund-transfers/electronic-fund-transfers-faqs/.
59 RESTATEMENT (THIRD) OF TRUSTS § 2 cmt b (2003).
60 Id. at 76.
61 Id. at § 77.
62 Id. at § 78.
63 Id. at § 79.
64 Id. at § 77.
65 Id. at § 77.
66 See generally Aaron Littman, Free-World Law Behind Bars, 131 YALE L. J. 1385 (2022).
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money regulation.67 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.68 The Texas Supreme Court, for
example, has found that the process required for TDCJ to withdraw funds
was simply to provide notice to the prisoner.69 Under the three-part Mathews
v. Eldridge test, the court considered the risk of erroneous deprivation and
cited in a footnote a string of cases that exemplify the problem of the lack of
regulation, citing cases in which a court order to pay fees specified one
amount or none at all, and there was simply no explanation or justification
for the prison system’s later seizure of much larger sum of money from the
prisoner’s account in order to satisfy the court debt.70 Despite what appeared
to be a pattern of financial mismanagement, the court merely imposed a
notice requirement so minimal that the procedures available would offer no
relief to the individuals who truly were defrauded out of hundreds or
thousands of dollars or more.71 Despite the documented mismanagement of
inmate trust accounts, courts regularly reject procedural due process claims
on the ground that there is little risk of error.72
As a creature of state statutes and regulations that govern prison
administration, inmate trust accounts defy straightforward categorizations.
However, some general principles apply. The National Consumer Law
Center has explained that, “[a]lthough inmate 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.”73 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.”74 In other words, people in prison do not primarily
See infra Section II.b.
“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.” Id. at
1389 (2022).
69 Harrell v. State, 286 S.W.3d 315, 320 (Tex. 2009).
70 Id. (citing examples).
71 See Sickles v. Campbell Cnty., Kentucky, 501 F.3d 726, 730 (6th Cir. 2007).
72 See id. at 730–31. See also Slade v. Hampton Roads Reg'l Jail, 407 F.3d 243, 253–54 (4th Cir.
2005); Tillman v. Lebanon County Corr. Facility, 221 F.3d 410, 422 (3d Cir.2000); Taylor v.
Sebelius, 189 Fed. Appx. 752, 761 (10th Cir. 2006).
73 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. 40 (June 2020) https://www.nclc.org/wpcontent/uploads/2022/09/WP_Litigation_Guide.pdf. The depository institution may just be
a regular, federally insured bank. See, e.g., Nev. Rev. Stat. Ann. § 209.248 (West).
74 See Stephen Raher, The Company Store and the Literally Captive Market: Consumer Law in
Prisons and Jails, 17 HASTINGS RACE & POVERTY L. J. 3, 18–19 (2020). (noting that, “[h]istorically,
inmate 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”).
67
68

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interact with the government’s treasury in accessing their funds but rather
go through the prison administration itself or a financial technology firm
that contracts with the prison or jail system.75
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/providers and
are often subjected to fees assessed by prison systems and inflated prices for
goods.76
These descriptions of inmate trust accounts say little about how courts,
prison administrators, and incarcerated people should understand the rights
and obligations that govern access to the money. This Section lays out the
reasons for this murkiness: First, there are multiple competing historical
accounts of why inmate trust accounts exist and what goals they advance.
Second, the statutory and administrative rules in place today say little about
what they are, who has a right to access the money, and under what
circumstances they may do so.
a. Descriptions, Justifications, and Purposes of Inmate Trust
Accounts
Prison banking goes back at least as far as the early days of the republic.77
In fact, any prison that tracked the debts of incarcerated people or held the
pocket money that an individual had upon arrest and saved it for their
release could be said to engage in a rudimentary form of today’s prison
banking.78 As more formal systems of account-keeping developed in the

75 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 18. 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 Emessaging
in
Prisons,
PRISON
POLICY
INITIATIVE
(March
2023)
https://www.prisonpolicy.org/reports/emessaging.html.
76 Id. at 10.
77 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
(Prison Association of New York 1922). Some form of prison banking seems to be an almost
inherent feature of early jails’ laws requiring people to pay for their own incarceration. See
Brittany Friedman et al., Who Pays for the Welfare State Austerity Politics and the Origin of Payto-Stay Fees as Revenue Generation, 63 SOCIO. PERSP. 921, 922 (noting that “county-level pay-tostay fees for jail detention date back to colonial America with British antecedents”).
78 The origins of these practices predate American prison history. See Laura I. Appelman,
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”).

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twentieth century,79 the descriptions, justifications and purposes of such
accounts have varied, even within a jurisdiction during a given period in
time.80 But the rationales and descriptions cluster around some common
themes. Throughout US history, prison accounts have functioned as ledgers
to track wages and debts; as government accounting devices to track
property, sometimes treating the accounts as true trusts, with prisons acting
as fiduciaries; as necessary vehicles for an efficient commissary system; as
pooled assets for the general welfare; as a means of maintaining security and
control; and, often, with overlapping versions of some or all of these
rationales.
•

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 the accounts are simple innovations to
solve basic administrative problems. But older historical sources tell a
different story, in which wage accounting for imprisoned people is 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 a general
inmate welfare purpose but rather to repay the government for the costs of
incarceration out of the personal funds and low-wage labor of incarcerated
people.81 The case of Harvey Belknap in 1821 upheld the principle that the
account holding the workhouse wages of those in custody was there for the
taking by a warden who otherwise would have no right to recover for
carceral debts.82 A 1936 note in the Yale Law Journal discussed 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 with each
prisoner, 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.”83
79 The Bureau of Prisons 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 4500.12, 15 (March 14, 2018).
80 See infra Section 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. Justin Driver &
Emma Kaufman, The Incoherence of Prison Law, 135 HARV. L. REV. 516, 542–66 (2021).
81 “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 (2023) (forthcoming)
(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. J. 66, 69 (2021)).
82 Washburn v. Belknap, 3 Conn. 502, 502 (Conn. 1821).
83 Id.

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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.84 The
Walnut Street Prison, which operated in Philadelphia from the 1790s to the
early 1800s,85 charged for costs of incarceration but 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.86 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.87
The 1922 account described this early “reformer” vision and the process
of crediting and debiting the accounts, noting that incarcerated people
“carried their accounts in little books” so that “the convicts might know both
their earnings and their obligations. . . .”88 The wage-and-accounting system
in place, according to this early account, offered a strong motivation to
incarcerated people and was therefore a useful tool in prison management.89
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 Civil War. In his seminal
book, Slavery by Another Name, Douglas Blackmon recounted the story of
Green Cottenham, a Black man arrested in 1908 Alabama on vague
accusations of vagrancy.90 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.”91 With no means to pay, his
sentence became a year, the time it would take to achieve a zero balance on
his debts.92
•

Prison accounts as a simple government budget line item 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

ORLANDO FAULKLAND LEWIS, supra note 77; Appleman, supra note 78, at 627.
Appleman, supra note 49, at 627.
86 ORLANDO FAULKLAND LEWIS, supra note 77, at 31.
87 Id.
88 Id.
89 Id.
90 DOUGLAS A. BLACKMON, SLAVERY BY ANOTHER NAME: THE RE-ENSLAVEMENT
AMERICANS FROM THE CIVIL WAR TO WORLD WAR II 1 (2008).
91 Id.
92 See id.
84
85

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less sense with larger state prisons and municipal jails.93 Budget reports that
included lines for inmate trust accounts appear as early as 1899,94 and at
some point, facilities began depositing these funds in formal bank
accounts.95 In 1930, the federal government established its inmate trust
account for the Bureau of Prisons with a two-fold purpose: partly, as
explained below, to “provide inmates the privilege of obtaining
merchandise not provided by the [prison] or of a different quality,” but also
simply “[t]o maintain inmates’ monies.”96 The federal Bureau of Prisons was
not alone in setting up funds like this to track money. States also began using
inmate trust accounts as devices used for the straightforward administrative
task of keeping track of the money a person had on them when they entered
prison and any prison wages earned.97
•

Prison accounts for purposes of setting up an efficient commissary
system.

One purpose of the inmate trust accounts is to enable a system for
purchasing commissary items without relying on cash.98 The federal
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
Just.:
Bureau
Just.
Stat.
(Dec.
1982)
https://bjs.ojp.gov/content/pub/pdf/p2581.pdf (finding that state and federal prison
population rose from about 91,000 in 1925 to about 220,000 in 1961).
94 See, e.g., REPORT ON STATE CHARITIES: OUTSTANDING INDEBTEDNESS IS NEARLY ALL PAID
DURING PAST QUARTER, MARENGO BEACON/REPUBLICAN-NEWS (Marengo, Il) (Aug. 31, 1899)
((providing accounting of all deposits by family and friends into inmate accounts); STATE
DOES WELL: BOARD REPORT SHOWS GOOD CONDITION OF AFFAIRS, ALTON EVENING TELEGRAPH
(Alton, Illinois) (Nov. 27, 1908) (same).
95 In 1911, a newspaper recounted that Illinois officials were considering setting up depository
account for inmate trust funds. Committee and the Press at Variance, COMMERCIAL APPEAL 3
(Mar. 22, 1911). News reports about bank failures in the 1930s indicated that inmate trust
funds were held in some of the failed banks. See, e.g., Cannot Use Contingent Fund for Purpose,
FREEPORT J. STANDARD 7 (Feb. 9, 1933). Today prisons hold inmate trust account funds in a
depository institution. See, e.g., NEV. REV. STAT. ANN. § 209.248 (West).
96 Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund, 19 Op. Off. Legal
Counsel 129 n.1 (1995) (quoting U.S. Dep’t of Just., Fed. Bureau of Prisons, Trust Fund
Management Manual, Program Statement 4500.3, Ch. 4501 (1989)). For discussion of the role
of inmate trust accounts in facilitating a commissary system, see infra Section II.a.
97 Stephen Raher, The Company Store and the Literally Captive Market: Consumer Law in Prisons
and Jails, 17 HASTINGS RACE & POVERTY L. J. 3, 18–19 (2020).
98 On grounds of both efficiency and security. Outside of prisons, payment systems fall into
two categories: closed loop and open payment systems. CAROL COYE BENSON, SCOTT
LOFTESNESS, & RUSS JONES, PAYMENTS SYSTEMS IN THE US: A GUIDE FOR THE PAYMENTS
PROFESSIONAL 4–7 (3d ed. 2017). Inmate trust accounts are paradigms of the closed loop
payment system, controlling and allowing surveillance of every purchase and expenditure
by an entirely captive market. See Leah A. Plunkett, Captive Markets, 65 HASTINGS L.J. 57, 2
(2013).
93

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government established multiple federal trust funds at the same time in the
early 1930s, one of which was a prison commissary fund that pooled the
proceeds of commissary purchases, and a separate fund was established
solely to maintain the depository accounts of incarcerated people. 99 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.”100 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.”101 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.”102 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.103
In 1934, Congress passed the Permanent Appropriation Repeal Act,
which listed a number of trust accounts held by the Treasury, including both
the Commissary Fund (set up to run the commissaries) and the Prisoners’
Trust Fund (set up to run individual prison accounts).104 According to a
recent BOP program statement, little has changed since these accounts were
created, and the purpose of the inmate trust account remains the same as it
did in the 1930s: “To maintain inmates’ monies (Deposit Fund) while they
are incarcerated” and “[t]o provide inmates the privilege of obtaining
merchandise and services either not provided by the Bureau or of a different
quality than that provided by the Bureau.”105
99 See U.S. Dep’t of Just., Fed. Bureau of Prisons, Program Statement 4500.12 (March 14, 2018).
See also Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund, 19 Op. Off.
Legal Counsel 128 (1995).
100U.S. Dep’t of Just., Fed. Bureau of Prisons, Program Statement No. 4500.12, Trust
Fund/Deposit Fund Manual, 15 (March 14, 2018) (citing Dep’t of Justice, Circular No. 2126,
Rules Governing the Control of Prisoner’s Funds at the Several Penal and Correctional
Institutions (August 1, 1930).
101 Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund, 19 Op. Off. Legal
Counsel 128 (1995) (citing Dep’t of Just., Circular No. 2126, ¶¶9—11 (Aug. 1, 1930)). See also
Daniel Wanger, Center for Public Integrity, Megabanks Have Prison Financial Services Market
Locked Up, CTR. PUB. INTEGRITY (Oct. 2, 2014), https://publicintegrity.org/inequality-povertyopportunity/megabanks-have-prison-financial-services-market-locked-up/ .
102 Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund, 19 Op. Off. Legal
Counsel 130 (1995) (discussing background of inmate trust accounts).
103 Id.
104 See Permanent Appropriation Repeal Act, ch. 756, § 20(a), 48 Stat. 1224, 1233 (1934)
(originally codified at 31 U.S.C. § 725s(a) (1934)).
105 U.S. DEP’T OF JUST., FED. BUREAU OF PRISONS, PROGRAM STATEMENT NO. 4500.12, TRUST
FUND/DEPOSIT FUND MANUAL, 15 (March 14, 2018). More recently, media and Congress have
raised questions about whether BOP’s simultaneous operation of the commissary fund and

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State systems followed suit, sometimes setting up dual accounts, one for
commissary purchases and proceeds, and one for individual funds, or,
alternatively, establishing an inmate trust account along with a commissary
coupon system.106 Under this latter regime, incarcerated people would write
negotiable checks against their accounts in exchange for commissary
vouchers to purchase items at the prison store.107
Today, there is little transparency over how prisons operate
commissaries, the pricing and markup, and the quality of items sold.108
Moreover, people in state and federal prisons pay for 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 copays, and over-the-counter medicines, as well as a vast array of
other fees for services like phone calls, tablets, e-messaging, video chats, and
music.109 They may even pay to use electricity.110 In some places, they pay
for in-person social visits with loved ones.111 The incentive for prisons to
invent fees and impose high markups, therefore, is substantial. Increasingly,
prisons are entering contracts with vendors to scan postal mail and let
people see only the digital version of the letters and photos that people send
to them.112 In these facilities, incarcerated people no longer have the ability
to hold and reread letters as often and for as long as they like. Instead they
pay per minute to look at letters and photos.113
Prison banking and commissary services have always been
interdependent on each other, but today inmate trust accounts and
the Prisoners’ Trust Fund (now referred to as the Deposit Fund) raises a conflict of interest.
See
Chuck
Grassley,
Letter
to
Collette
Peters
(Aug.
1,
2022),
at
https://www.grassley.senate.gov/imo/media/doc/grassley_to_bureau_of_prisons__commissary_trust_fund.pdf.
106 See Big Shortage Is Revealed by Auditor, CLINTON DAILY NEWS 1 (Dec. 12, 1947) (describing
canteen coupon system in account of embezzlement).
107 Id.
108 This low transparency stands in contrast to how the federal government has operated
military commissaries, which have a dedicated federal agency called the Defense
Commissary Agency, and have been the subject of congressional inquiries and 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 (2008) and PETER D. SKIRBUNT, THE ILLUSTRATED
HISTORY OF AMERICAN MILITARY COMMISSARIES, VOL. 2 SINCE 1989 (2008).
109 See Beth Schwartzapfel, Prison Money Diaries: What People Really Make (and Spend) Behind
Bars,
THE
MARSHALL
PROJECT
(Aug.
4,
2022),
https://www.themarshallproject.org/2022/08/04/prison-money-diaries-what-peoplereally-make-and-spend-behind-bars.
110 See ALASKA STAT. ANN. § 33.30.017 (West).
111 See, e.g., Chesa Boudin, Trevor Stutz, & Aaron Littman, Prison Visitation Policies: A 50-State
Survey, 32 YALE L. & POL’Y REV. 149, 176 (2013).
112 Lyle C. May, The Impossible Math Behind Pay-Per-Minute Prison Messaging, SLATE (June 19,
2023, 12:30PM), https://slate.com/technology/2023/06/prison-messaging-cost-gettingoutgtl-viapath.html.
113 Id.

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privatized goods and services are ever more deeply intertwined.114 Inmate
trust accounts exist to support far more than just a commissary payment
system and are, instead, integral to a system that requires payment for a
whole host of regular activities and everyday items. Moreover, the same
vendors that operate prison banking often provide telecom services, tablets,
and the commissary.115 Private vendors like Trinity Services Group, Securus
Technologies, and Global Tel*Link/GTL don’t 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, which makes inmate trust
accounts completely indispensable for incarcerated people.
•

Prison accounts as a means of maintaining security and control.

Prison administrators are concerned about money flows in prison and
potential threats to security and orderliness if cash or an equivalent is
available to people in prison.116 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.”117
Under a mid-twentieth century canteen voucher system in one prison,
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.”118
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 cash-free substitutes, like free-world cashless banking options,
might address the concerns of prison officials.119 But regardless of the precise

114 See Stephen Raher, The Company Store and the Literally Captive Market: Consumer Law in
Prisons and Jails, 17 HASTINGS RACE & POVERTY L. J. 3, 9–10 (2020) (footnotes omitted). See also
Jazmen Howard, Unjustly Enriched Prisons: The Problem with Capitalizing on Captivity, 72 FL. 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”).
115 See Raher, supra note 114, at 16.
116 See, e.g., Schneider v. Cal. Dep’t of Corr. (Schneider II), 151 F.3d 1194, 1195 (9th Cir. 1998).
117 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.”).
118 BILLS PLANNED ON FINANCE CODE, PRISON CONTROL, MUSKOGEE DAILY PHOENIX 5 (Feb. 23,
1957).
119 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.

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nature of the security risk, inmate trust accounts enable prisons to operate a
closed economy that does not depend on cash.
Beyond eliminating the need for cash transactions, inmate trust accounts
allow for a more total surveillance and control of daily activities and media
content. Prisons can control a person’s broad purchasing power, beyond a
limited selection of commissary items, simply by creating an in-prison cost
for basic activities that can be paid only with the inmate trust account and
mandating that all purchases, deposits, and withdrawals are subject to
approval by prison administrators with broad discretion.120 Some prisons
even establish rules that incarcerated people are not allowed to maintain
outside bank accounts.121 In New Jersey, incarcerated people can only have
outside bank accounts if all other debts have been paid; but since people in
prison are liable for all costs of medical care and costs of incarceration, that
debt is likely never to be extinguished for most people.122 In Nevada, failing
to deposit all incoming funds into the prison accounts is a misdemeanor.123
Prisons grant themselves wide discretion to determine what people can
and cannot purchase out of their inmate trust accounts. For example, the
Bureau of Prisons’ manual for use of the 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 may or may not be withheld.124 The effect
is that the BOP has wide discretion to prevent people from paying for all
kinds of goods and services that they need or want, and from sending cash
to family members, and instead directing them to pay for prison-operated
commissary items and services.125

(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. COMP. LAWS ANN. § 791.6639(5) (West).
120 See, e.g., ALASKA STAT. ANN. § 33.30.201(d) (West).
121 See, e.g., N.Y. Dep’t. Corr. & Comm’y Supervision, Directive 2798, Inmate Accounts (Nov.
29, 2017). Prisons can also control post-release purchasing power by equipping people on
parole with debit cards that have geographical and purchasing constraints, in order to limit
travel and to surveil and control activities while on parole. See Keefe Commissary Network,
LLC, Original Technical Proposal, W. VA. DEP’T CORR., 44 (April 10, 2014, 1:30PM)
https://www.prisonpolicy.org/contracts/documents.html?text-search-fields=facility-andremarks&q=&q-state=&q-document-type=&q-service=inmate-banking-software&qvendor=&sort=state#search-form.
122 N.J. STAT. ANN. § 30:4-16.4 (West).
123 NEV. REV. STAT. ANN. § 209.241(1) & (2) (West).
124 U.S. Dep’t of Just., Fed. Bureau of Prisons, Program Statement No. 4500.12, Trust
Fund/Deposit Fund Manual, 87-97 (March 14, 2018).
125 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).

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The idea that prisons can use inmate trust accounts to control the
activities of incarcerated people is not new. One early critique of the
Massachusetts State Prison complained about the flow of money from
contracted prison labor in the facilities. Despite strict limitations on
spending, the critic asserted, 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.”126 People in prison might even purchase “infidel
books.”127
On some occasions, incarcerated people did use their funds to bribe
officers.128 More commonly at Massachusetts State Prison, however, the
wages were used “to procure luxuries such as tea, coffee, tobacco, milk,
crackers, fresh fish, butter, cheese, cider and apples.”129
A broad array of reforms at the Massachusetts State Prison130 included
increased restrictions on the flow of money. The administration achieved
greater control over money and purchasing by creating a library, restricting
its content, and funding it through prison wages.131 Both before and after the
reforms, the money of incarcerated people was used to buy books, and the
difference was simply who got to select the content. Individual purchases
for musical instrument and reading material were permitted only if the
warden made the actual purchase.132
Today, prisons maximize their ability to monitor and control money
transfers and purchases with the help of financial technology. Firms like
JPay, the technology firm owned by Platinum Equity Partners that has
largely overtaken phone, e-messaging, video visitation, tablet technology,
and finances in prison systems across the country, and a corporate entity
called Keefe Group promote their capacity to surveil financial activity as part

126 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 159
(Prison Association of New York 1922).
127 Id. at 167. The author does not explain what this term means.
128 Id. at 157.
129 Id.
130 Id. at 160–167.
131 Id. at 169.
132 Id. at 169.

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of their bids for contracts with corrections.133 Data supporting the need for
such monitoring, however, is lacking.134
•

Prison accounts as pooled assets for the general welfare.

In some cases, prison bank 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. For example, in
Hawaii, incarcerated people sold hobbycraft items at an annual Mother’s
Day sale and generally did not collect proceeds for themselves; around 1950
the policy shifted and the proceeds were placed in an “inmate trust fund,”
and an “inmate council” could, by a majority vote, spend that fund on items
intended to benefit the collective.135
Prison systems today commonly oversee funds that are labeled “inmate
welfare funds” or “general welfare funds” or something similar.136 But for
the most part, these funds are distinct from the kind of prison accounts that
receive earnings and deposits belonging to individual people. In other
words, prisons today do not manage individual people’s money by pooling
accounts for collective purchases, but this idea of an account for collective
benefit does still exist in the form of “welfare funds.”
Today’s welfare funds and inmate trust accounts do share some features
of the kind of pooling of individual assets that existed in Hawaii in the
middle of the century. First, welfare funds often contain money from
individual incarcerated people, just not directly from wages and deposits by
See Keefe Commissary Network, LLC, Original Technical Proposal, W. VA. DEP’T CORR. 64
(April 10, 2014, 1:30PM) https://www.prisonpolicy.org/contracts/documents.html?textsearch-fields=facility-and-remarks&q=&q-state=&q-document-type=&q-service=inmatebanking-software&q-vendor=&sort=state#search-form (discussing “data mining” activities
and investigative capacity, which includes twelve investigators who monitor 27 percent of
activities.
134 In August 2021, news outlets reported that US Department of Justice Deputy Attorney
General Lisa Monaco had issued a directive to the Bureau of Prisons 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 Nasser had large sums of money in their accounts but had been paying only small
amounts of restitution. None of the reports detailed any actual criminal activity being
conducted with the inmate trust accounts, and in fact Justice Department officials “cautioned
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,
2:30PM),
https://apnews.com/article/sports428a4c18819103cb9acd1f37ae1d8d45.
135 Virgil McDorman, The Inmate Council, PAAHAAO PRESS, September-October 1951, at 6, 23
(describing the function of the Inmate Trust Fund from the perspective of a prison
newspaper).
136 There has been some overlap in the concepts of individual accounts and general welfare
accounts. See, e.g., Urbano v. Bd. of Managers of New Jersey 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).
133

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friends and family. For example, welfare funds can contain the profits from
commissary purchases,137 cost-of-incarceration payments by people in
prison (often involuntarily drawn from individual accounts), and site
commissions from private service providers like JPay,138 hobbycraft sales.139
The principal funds in an individual’s account are, in other words, diverted
directly to welfare accounts in the form of commissary proceeds and phone
services and the like.140
Moreover, while people in prison may think of their own individual
inmate trust account as being theirs alone, the fact is that the money from
the individual deposits has, for a long time, been pooled into a government
account.141 An individual’s account balance is really just a ledger for the
prison system to keep track of who can spend what within the overall pooled
inmate trust account.142
But the differences between today’s inmate 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 its own
administration costs, they often have the authority to do so with the inmate
welfare funds.143 In contrast to the early Hawaiian model of allowing
incarcerated people to determine themselves what welfare activities they
fund—movie night, recreation, for example—today’s inmate welfare funds
are managed almost entirely by prison administrators.144 Moreover,
virtually every expenditure can count as promoting “inmate welfare,”
including administrative prison costs, salaries, and capital projects. While
these funds might look like they support things like movie nights,
recreational activities, and other “extras,” they are often used instead for
137 The Federal Bureau of Prisons, for example, directs a portion of its Commissary Fund
proceeds to a “Welfare Fund.” See Fiduciary Obligations Regarding Bureau of Prisons
Commissary Fund, 19 Op. Off. Legal Counsel 128 (1995).
138Inmate
Welfare
Fund
Account,
SUTTER
CNTY.
SHERIFF,
CA,
https://www.suttersheriff.org/divisions/jail-division/corrections-section/inmatecustody-services/welfare-fundaccount#:~:text=The%20Inmate%20Welfare%20Fund%20holds,used%20by%20inmates%20
while%20incarcerated.
139 As in California, see CAL. PENAL CODE § 5006.
140 See, e.g., N.J. ADMIN. CODE § 10A:31-29.3(a); Erick Roeser, Internal Audit: Sonoma Country
Sheriff’s Office Inmate Welfare and Jaile Store Trust Funds, SONOMA CNTY. (October 30, 2020),
https://sonomacounty.ca.gov/Ektron%20Documents/assets/Sonoma/Sample%20Dept/Sa
mple%20Dept/Divisions%20and%20Sections/AuditorController/Services/Fee%20Based%20Audit%20Reports/_Documents/Sheriff_s%20Office
%20Inmate%20Welfare%20and%20Jail%20Store%20Trust%20Funds.pdf.
141 See e.g., WASH. DEP’T OF CORR. POLICY 200.000 I.a. (2022); Cal. Penal Code § 5008 (West).
142 Thomas U. Gage, Not So Trustworthy: What You Should Know About “Inmate Trusts”,
INTERROGATING JUST. (Sept. 29, 2022), https://interrogatingjustice.org/ending-massincarceration/not-so-trustworthy-what-you-should-know-about-inmate-trusts/.
143 See, e.g., CAL. PENAL CODE § 4025.
144 But see Miss. Code. Ann. § 47-5-158(7)(a) (West) (requiring that one member of the ninemember Inmate Welfare Fund Committee be a relative of an incarcerated person).

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basic operational costs of running the 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.145 But buried in the list of
permissible expenditures, at number 14 out of 16 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.146 In 2022, an
audit report to the Montana legislature analyzed the state’s use of the
prisons’ welfare funds, which is comprised almost entirely of phone fees and
canteen markup.147 The audit unearthed several unauthorized expenditures
out of the fund, as well as several “questionable” expenditures that may
technically comply with policy but logically should have been covered by
the prisons’ general operating fund, like hygiene items for indigent
individuals and legal research materials.148
In short, if one simply traces the money, from inmate trust accounts,
which are used to pay phone fees and commissary items and other fees,
which then are deposited into general welfare fund revenues, the welfare
fund can easily convert the deposit by a loved one into operations spending
by the prison.
•

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 fiscal responsibility.149 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.150 In other words, compelling people in prison
to cede control of their own money is actually for their own benefit.151
For example, the BOP controls inmate trust accounts through a program
called the Inmate Financial Responsibility Program (IFRP). The stated goal
W. VA. CODE §15A-4-10.
W. VA. CODE §15A-4-10(14).
147 LEGISLATIVE AUDIT DIVISION, MONTANA LEGISLATURE, INMATE WELFARE FUND DEPARTMENT
OF
CORRECTIONS
1
(June
2022),
https://leg.mt.gov/content/Committees/Administration/audit/2021-22/Meetings/June2022/22P-03.pdf.
148 Id. at 3–6.
149 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)).
150 Id.
151 According to 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., Fed. Bureau of Prisons, Program Statement No. 4500.12, Trust Fund/Deposit Fund
Manal (March 14, 2018).
145
146

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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.”152 To that end, the IFRP allows prisons to (1) divert funds
from inmate trust accounts to pay a variety of debts, including state and
federal court fees and fines,153 victim restitution, and—most problematic—
the debt each person has to the prison itself for their own incarceration,154
while precluding certain types of spending for the remaining funds;155 and
(2) impose a forced savings plan, in which prison officials encumber a
portion of the funds to be saved until the individual’s release, which could
be decades away or otherwise unnecessary for the particular individual’s
situation.156
A number of states also have forced savings requirements similar to the
one in the IFRP. These plans segregate a portion of the inmate trust account
that the individual cannot access at all, even to cover basic necessities and
non-frivolous purchases, and even when the individual’s release is years or
decades into the future. In Wisconsin, an individual litigated to get access to
his funds to pay a filing fee that Wisconsin claimed he had no right to access
because it was encumbered.157 The court granted him access, but only
because Wisconsin had transported him out of state to a Tennessee prison,
and the court determined that Tennessee law should apply. 158 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.159 In Nevada, all individuals must divert funds to a savings
account for their release, even if they are serving life sentences,160 and, upon
release, the prison can seize savings account funds to cover certain
institutional debts.161 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
Inmate Financial Responsibility Program, supra note 149.
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 oftenuncertain nature and amount of court debt.
154Inmate Financial Responsibility Program, supra note 149.
155Id. (describing one IFRP goal as “to support federal inmates in developing financial
planning skills.”).
156 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).
157 Doty v. Doyle, 182 F. Supp. 2d 750, 751 (E.D. Wis. 2002).
158 Doty v. Doyle, 182 F. Supp. 2d 750, 754 (E.D. Wis. 2002); WI Release Fund Can Be Used to Pay
Filing
Fee,
PRISON
LEGAL
NEWS
(May
15,
2007),
https://www.prisonlegalnews.org/news/2007/may/15/wi-release-fund-can-be-used-topay-filing-fee/#case-5440.
159 Ellibee v. Simmons, 32 Kan. App. 2d 519, 523, 85 P.3d 216, 219 (2004).
160 Nev. Rev. Stat. Ann. § 209.463(7) (West).
161 STATE OF NEVADA GOVERNOR’S FINANCE OFFICE DIVISION OF INTERNAL AUDITS, AUDIT REPORT,
NEVADA
DEPARTMENT
OF
CORRECTIONS
(Feb.
22,
2022),
https://budget.nv.gov/uploadedFiles/budgetnvgov/content/IAudits/About/AuditRpts/
DIA%2022-05.pdf
152
153

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released and the funds revert to the state, or they are released with an
institutional debt that they must pay with their release savings funds.162
Like the federal 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.163
•

Prison accounts as … ?

Prison banking systems can have features one or all or some of the
categories above, and prison systems can justify their existence on one or
more of these grounds simultaneously. But whatever the multiple 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—for example, laws
governing trust accounts, bank accounts, custodianships, bailments, or other
legal frameworks for money that is not in the immediate physical possession
of a clear owner—simply do not apply to inmate trust accounts.164 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 account exists exclusively for the benefit and use of the person in
prison—whether as their own personal money to be spent at their direction,
or as pooled assets of 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 the accounts
and the rights and duties of incarcerated people and prison systems in
maintaining and accessing the accounts: Are these accounts true trust
A Nevada audit showed that one formerly incarcerated individual had an outstanding
balance of $189,000. Id.
163 Elliott v. Simmons, 100 F. App'x 777, 780 (10th Cir. 2004).
164 See, e.g., Minsky v. City of Los Angeles, 11 Cal. 3d 113, 117, 520 P.2d 726, 730 (1974) (finding
that 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), but the
Washington Supreme Court has found that role consistent with the department’s practices of
seizing money from the accounts to pay itself for general costs of incarceration. In re Pierce,
173 Wash. 2d 372, 390, 268 P.3d 907, 915 (2011).
162

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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? A government fund that may have some
characteristics of some of these other categories?165
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 was 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 for the creation of the
accounts—that the money belongs to the incarcerated person and the prison
simply holds it for them.166 Memos from the Department of Justice 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 in holding these funds.167 The federal Bureau of Prisons has
adopted this view in the program statement for its manual governing trust
funds, 168 and the Court of Federal Claims has agreed with it. 169
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.170 Texas courts, despite the term
165
See,
e.g.,
Fiduciary
Activities,
GOV’T
ACCT.
STANDARDS
BD.,
https://gasb.org/page/PageContent?pageId=/projects/fiduciary-activities.html#section-3.
166 Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund, 19 Op. Off. Legal
Counsel 137—38 (1995).
167 Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund, 19 Op. Off. Legal
Counsel 137—38 (1995).
168 Davis v. United States, No. 20-1071, 2022 WL 1618052, at *3 (Fed. Cl. May 20, 2022)
169 U.S. Dep’t of Just., Fed. Bureau of Prisons, Program Statement No. 4500.12, Trust
Fund/Deposit Fund Manual (March 14, 2018); see also Davis v. United States, No. 20-1071,
2022 WL 1618052, at *3 (Fed. Cl. May 20, 2022); Davidson v. Fed. Bureau of Prisons, No. CV
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).
170 See, e.g., Schneider v. California 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 prison trust account, prison grievance
procedures provide sufficient post-deprivation proceedings to satisfy procedural due
process”); Ross v. Myrick, 817 F. App'x 499, 500 (9th Cir. 2020); Sperry v. Roberts, No. 213151, 2022 WL 2798994, at *7 (10th Cir. July 18, 2022); Martinez v. Sumner, 9 F.3d 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); AbdulWadood v. Bayh, 85 F.3d 631 (7th Cir. 1996) (court identifies DOC as trustee and incarcerated
people as beneficiaries but conclude that the property interest extends only so far as state
statutory law regulating inmate trust accounts grants rights; because state law diverted
accrued interest to a different fund, plaintiffs had no right to it); Harris v. Ryker, No. 11-CV133-JPG, 2011 WL 5244682, at *3 (S.D. Ill. Nov. 2, 2011).

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“inmate trust account,” deny that the fund is a “trust” at all but simply
maintain that it is an “account.”171 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, TDCJ would likely opt not
to seek recoupment at all, thus subverting the Legislature's goal of efficient
cost-collection.172
Many courts adjudicating issues involving the funds simply do not place
the funds into any property category.173 This failure by the courts to identify
a proper legal framework for money that is held and maintained by the
government for the benefit and use by another leaves it unprotected. Few174
would argue that any money deposited in an inmate trust account or earned
by incarcerated people simply belongs to the government to do what it likes
with it.175 It must, therefore, be qualitatively different from other segregated
government funds, where they may be called a “trust” but are not true trusts
and are, instead, simply a government accounting device to allocate funds
that the government indisputably owns.176
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 the money. In one version, Michigan’s and
Arkansas’s endeavors to take entire stimulus checks to repay themselves for
running prison systems looks a lot like the 1821 idea that an incarcerated
person’s account is “a fund in the hands of the master for his
remuneration.”177 In another version, the money in the accounts belongs to
the incarcerated individuals, and the “inmate trust fund” serves purely
administrative purposes: to allow for easy commissary purchases through
171 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. Kansas Dep't of Corr., 301
Kan. 654, 657, 346 P.3d 327, 330 (2015) (“But we have no difficulty finding the plain language
of the applicable statutes establishes the inmate trust fund is, in fact, a trust subject to the
KUTC.”).
172 Randolph v. State, 323 S.W.3d 585, 587–88 (Tex. Ct. App. 2010).
173 See, e.g., Young v. Wall, 642 F.3d 49, 54 (1st Cir. 2011).
174 Except Arkansas. See supra notes 19–22 and accompanying text.
175 Several courts have stated that incarcerated people have a property interest in the money
in their own inmate trust accounts. “It is clear beyond hope of contradiction that an inmate
has a property interest in the balances held in his accounts.” Young v. Wall, 642 F.3d 49, 53
(1st Cir. 2011). See also Burns v. PA Dep't of Corr., 544 F.3d 279, 281 (3d Cir. 2008); Scott v.
Angelone, 980 F.2d 738 (9th Cir. 1992); In re D.L.D., 374 S.W.3d 509, 514 (Tex. Ct. App. 2012).
176 See John H. Langbein, The Secret Life of the Trust: The Trust as an Instrument of Commerce, 107
YALE L. J. 165, 167 (1997) (describing the tendency of governments to appropriate the term
trust to refer to simple government budget line items).
177 Washburn v. Belknap, 3 Conn. 502, 502 (Conn. 1821).

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secure means and to set that money aside from other government coffers.178
In another version, common across jurisdictions, the money may belong to
the person incarcerated but prisons assert that it must be subject to strict
control and limited access for security reasons.179
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 correctional
contract.180 In short order, JPay and its competitors secured contracts with
prison and jail systems across the country. Financial technology firms
advertised their products as a boon to incarcerated people and their
families,181 but with the arrival of these products, people in prison lost even
more control and access to their funds.182 Today, three financial technology
firms dominate the money-transfer market for prisons.183 Most states offer
individuals only one choice.184
Until the arrival of financial technology, family and friends of people
incarcerated in BOP were able to make cost-free deposits into their loved
one’s prison accounts, and the US Treasury held the funds for the
individual.185 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.186 At the federal level, Bank of
America’s role in managing the Inmate Trust Fund has not changed the legal
status of the funds187 or the federal government’s fiduciary obligation to
178 See Fiduciary Obligations Regarding Bureau of Prisons Commissary Fund, 19 Op. Off.
Legal Counsel 137—38 (1995) (citing Dep’t of Just., Circular No. 2126, ¶¶9—11 (Aug. 1, 1930)).
179 See, e.g., Burns v. PA Dep't of Corr., 544 F.3d 279, 280, 285–291 (3d Cir. 2008) (recognizing
individual’s cognizable property interest as well as prison’s strong interest as judgment
creditor).
180Banking and Financial Services, INVESTIGATE, https://investigate.afsc.org/tags/bankingand-financial-services.
181 See, e.g., Joe Musco, Automating Inmate Trust Account Funding Saves Time and Money for
Correctional Facilities, AM. JAILS, November-December 2005, at 83.
182 See Daniel Wanger, Center for Public Integrity, Megabanks Have Prison Financial Services
Market Locked Up, Ctr. Pub. Ineq. (Oct. 2, 2014), https://publicintegrity.org/inequalitypoverty-opportunity/megabanks-have-prison-financial-services-market-locked-up
(describing high fees, delayed money order transactions, and difficulty reaching customer
service).
183 CONSUMER FIN. PROT. BUREAU, JUSTICE-INVOLVED INDIVIDUALS AND THE CONSUMER
FINANCIAL MARKETPLACE 18 (2022).
184 Id.
185 Daniel Wanger, Megabanks Have Prison Financial Services Market Locked Up, CTR. PUB.
INTEGRITY
(Oct.
2,
2014),
https://publicintegrity.org/inequality-povertyopportunity/megabanks-have-prison-financial-services-market-locked-up/.
186 Id.
187 See Keefe Commissary Network, LLC, Original Technical Proposal, W. VA. DEP’T CORR. 18
(April 10, 2014, 1:30PM) https://www.prisonpolicy.org/contracts/documents.html?textsearch-fields=facility-and-remarks&q=&q-state=&q-document-type=&q-service=inmate-

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manage them.188 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
intended for the benefit of an incarcerated person, while both the private
fintech firm and the prison have what seems to be direct access to the
funds.189
In practice, the various deductions from prison bank accounts can add
up to look increasingly close to 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.190 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 stimulus checks
simply put a spotlight on the practice because the problems were so
widespread and sudden, and the seizures applied to larger sums of
money.191
Without a clear or singular rationale behind inmate trust accounts,
supposed creditors have easy access and little oversight in accessing the
money. Many courts find that prison systems can unilaterally seize money
from a person’s account on the grounds that the individual owes a debt—to
the prison, to a victim, to a government restitution fund, or to a court, for
example—with very little process, even though they would never be able to
do the same with a person’s personal bank account.192 For some courts, it is
not even clear whether litigation involving an inmate trust account is a
criminal or civil matter.193 While there is some support for the idea that, from
an accounting perspective, inmate trust accounts are simply a line item in a
government budget that sets the money aside for a specific purpose and has
banking-software&q-vendor=&sort=state#search-form). See also Mehrsa Baradaran,
Rethinking Financial Inclusion: Designing an Equitable Financial System with Public Policy,
ROOSEVELT INST. 2 (April 2020).
188 See supra note 168–69.
189 As Laura Appleman has pointed out, fintech firms like JPay have described their products
as streamlining prison banking, but in fact it replaced a system that was simple to administer
and straightforward—deposits by money orders into an existing account—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 Jazmen Howard, Unjustly Enriched Prisons: The Problem with
Capitalizing on Captivity, 47 FL. L. REV. 127, 137 (2020)
190 This author was not able to find any reported account of the actual balance of inmate trust
funds across any prison system.
191 See supra Section III.b.
192 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.
193 See Johnson v. Tenth Jud. Dist. Ct. of Appeals 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).

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no greater legal significance,194 that position seems to defy logic; virtually no
one195 argues that people in prison have no legal right at all to the money
that they and their family and friends have deposited in their account and
that it belongs exclusively to the government.196
Even on the federal side, where there is a documented history that
appears to clearly establish that inmate trust accounts are just that—trust
accounts where the government’s sole interest is as fiduciary—the Bureau of
Prisons still manages to exercise coercive control of the accounts to divert
money to itself and other entities. The Inmate Financial Responsibility
Program (IFRP) 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.197 Although the IFRP
purports to teach “financial planning skills,”198 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,199 or that there are program benefits for the
particularly low-income population of those recently released from
prison.200 These two components of the fiscal responsibility narrative—
taking money out of the accounts to pay down a variety of court and criminal
system debts and imposing a forced savings plan—simply means 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
194 See John H. Langbein, The Secret Life of the Trust: The Trust as an Instrument of Commerce, 107
YALE L. J. 165, 167 (1997) (describing the tendency of governments to appropriate the term
trust to refer to simple government budget line items).
195 Arkansas perhaps being the exception. See supra notes 19–22.
196 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) (up to 50 percent of incarcerated person’s inheritance is subject to lien; Nev.
R.S. Ann. 209.2475(1) (requiring that director set minimum balance); Nev. Rev. Stat. Ann. §
209.463(3)(a) (West); Nev. Rev. Stat. Ann. § 209.247(3)(a) (West) (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).
197 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)).
198 Id.
199 See Comment to the Bureau of Prisons Regarding Proposed Changes to the Inmate Financial
Responsibility
Program,
SENT’G
PROJECT
(March
14,
2023),
https://www.sentencingproject.org/advocacy-letter/comment-to-the-bureau-of-prisonsregarding-proposed-changes-to-the-inmate-financial-responsibility-program/.
200 See Brittany L. Deitch, Rehabilitation or Revolving Door: How Parole Is A Trap for Those in
Poverty, 111 GEORGETOWN L. J. ONLINE 47, 51 (2022) (“In the first year after release, only twenty
percent earn more than $15,000.”).

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percent) to pay these other entities.201 Despite its historical assurances that
the BOP acts as a fiduciary, therefore, the federal system, like many state
prisons and jails, is regularly siphoning off the money earned by
incarcerated people and their friends and family to pay itself and other
criminal system actors.
b. 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,202 what kind of process is required,203 whether deductions are
waivable for indigency,204 whether certain funds are immune from
garnishment,205 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” around which it had to puzzle through the various rights
and duties among the relationship between the incarcerated individual and
the prison officials.206 While the court found that the prison’s mere threat to
seize funds implicated the individual’s property interest (because it
constituted a money judgment that reduced the value of the security of the
funds), the court curiously found that the excessive control exercised by
prisons over individuals’ accounts actually strengthened the prison’s legal
interest in the money rather than triggering additional procedural
protections for the individual with the actual property interest in the funds:
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.207
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
201 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)).
202 See Schneider v. California 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).
203 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. App. Sept. 24, 2008).
204 Wheeler v. McDonough, 957 So. 2d 94, 95 (Fla. Dist. Ct. App. 2007).
205 In re Doyle, No. 06-08-00094-CV, 2008 WL 4329041, at *2 (Tex. App. Sept. 24, 2008).
206 Burns v. PA Dep't of Corr., 544 F.3d 279, 280, 285–291 (3d Cir. 2008).
207 Id. at 288–89 (footnote omitted).

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statutes and regulations that govern inmate trust accounts. Unlike the
federal statute that sets aside inmate trust accounts as true trusts,208 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.209 The statutes governing inmate trust accounts are often
vague210 or nonexistent.211 Mississippi statutes include only a provision that
the Department of Corrections establish “a cashless system.”212 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.213
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 only a few administrative provisions mention inmate
trust accounts tangentially.214 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 individuals may spend the
funds in an inmate trust account beyond spending within the market of
208 The federal statute was passed in 1930 as part of a Congressional reworking of Treasury
authority, and a small number of funds, including the inmate trust account, were set aside as
being out of reach of the Treasury Department. See Fiduciary Obligations Regarding Bureau
of Prisons Commissary Fund, 19 Op. Off. Legal Counsel 130 (1995)
209 Every state that has statutes and regulations addressing inmate trust funds houses these
provisions in the corrections section of the statutes and administrative code. See, e.g., ARK.
CODE. ANN. § 004.00-841-VI; CAL. PENAL CODE § 1029; CONN. GEN. STAT. § 18-101; CONN. GEN.
STAT. ANN. § 18-85; DEL. CODE. ANN. tit. 29 § 8903; DEL. CODE. ANN. tit. 11 § 6534 (West); FL.
STAT. § 944.516; FLA. ADMIN. CODE ANN. r. 33-203.201; IDAHO CODE ANN. § 20-209H (West); Ch.
75 ILL. COMP. STAT. 125/20 ¶ 120; 4 IND. ADMIN. CODE § 24-6-9; ME. REV. STAT. tit. 34-A, § 3039;
WASH. REV. CODE ANN. § 72.09.480. In other cases, however, provisions related to how
different entities might recover debts from people in prison are scattered throughout noncorrectional statutes and rules. See, e.g., CAL. CIV. PROC. CODE § 704.090; COLO. REV. STAT. ANN.
§ 13-17.5-106 (West).
210 See, e.g., ARK. CODE. ANN. § 004.00-841-VI (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)
(requiring that “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).
211 For example, Alabama and Connecticut have no general statute establishing inmate trust
accounts, and Colorado and Mississippi have no official regulations that govern inmate trust
accounts.
212 MISS. CODE. ANN. § 47-5-194(6) (West).
213 MISS. CODE. ANN. § 47-5-194 (West).
214 See, e.g., 222 R.I. Code R. 10-00-1.4(B)(9)(d); 222 R.I. Code R. 10-00-1.4; 222 R.I. Code R. 2000-1.16(D)(7).

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prison goods and services; no expenditures permitted except with approval
from the Warden for the following: “publishers of appropriate approved
magazines, periodicals, newspapers, and books;” “For subsistence of
members of his immediate family (including validated common law spouse}
or to persons on inmate's approved visiting list;” or bail.215 Payments to
“other entities or exceptions” are allowed only with written approval from
the Warden, and the handbook contains no limits on the Warden’s discretion
to approve or deny such permission.216
As a consequence, state statutes largely fail to offer a coherent property
rights framework that clearly identifies the inmate trust account according
to a category within which the rights and obligations to the money can be
determined. Despite the most common term used for the accounts—“inmate
trust accounts” or “inmate trust funds”—state statutes often do not explicitly
label them as such,217 sometimes using general terms like “safekeeping” to
describe the role of the prison or jail official in maintaining accounts for
incarcerated people.218 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.219 Almost all states,
however, are silent on the nature of the property interest.220
Caselaw addressing the challenges by prisoners to seizures of their
inmate trust accounts suggests that the property interest is poorly regulated
and hard for incarcerated people to litigate in court. In a Ninth Circuit case
about the nature of the property interest in inmate trust accounts, the court
noted that incarcerated people at common law had no property interest at
all in their earnings, and so found that any property interest was derived
from state statute.221 This meant, of course, that where the state statute gave
rights, it could also take away rights.222 In other words, the state could define
its own right to these funds.
State statutory provisions, however, often raise more questions than they
answer. 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,223 and no administrative code provisions regulate inmate
trust accounts. The bulk of the policy, therefore, is developed in internal

R.I. DEP’T OF CORR., INMATE RULE BOOK 38 (2013).
Id.
217 Cf. Cal. Penal Code § 5008 (West) (specifying that funds are held “in trust”).
218 See, e.g., COLO. REV. STAT. ANN. § 17-26-125 (West).
219 See, supra note 164.
220 See supra note 217.
221 Ward v. Ryan, 623 F.3d 807, 811 (9th Cir. 2010).
222 See id.
223 See, e.g., ALA.CODE 1975 § 45-8-232.20 (West) (regarding work release and the deposit of
wages in Calhoun County); ALA.CODE 1975 § 45-31-231.23 (West) (regarding work release,
deposit of wages, and deductions from wages in Geneva County); ALA.CODE 1975 § 45-36231.07 (West) (requiring that interest revert to the sheriff in Jackson county).
215
216

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corrections directives,224 and handbooks disseminated to people in prison.225
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.226
The states that do have detailed statutory provisions often give minimal
guidance other than to provide direction on specific transactions or to claim
broad authority to approve or deny specific transactions.227 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 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 the commissioner “commissioner considers appropriate;”
and that the prison wages are held there for the “primary purpose of being
available to the prisoner at the time of release.”228
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 corrections to establish and
regulate “prisoner spendable accounts,”229 and the department has made
publicly available a detailed manual that explains its handling of inmate
trust accounts.230 The handbook helpfully includes a list of allowable
deductions.231 Still, the intersection of rights and obligations is unclear. The
manual specifically requires that the Department act as a fiduciary,232 but the
224 See, e.g., ALA. DEP’T OF CORR. ADMIN. REG. 101 (2023) (governing internal audits by the
Alabama Department of Corrections, 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
inmate welfare fund that draws its funds from sources that include commissary profits and
interest on inmate trust funds); ALA. DEP’T OF CORR. ADMIN. REG. 112 (2023) (authorizing
withdrawals from inmate trust funds for court debt).
225 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, ban on accessing and operating outside accounts, and procedures for deposits).
226 See generally ALA. DEP’T OF CORR., MALE INMATE HANDBOOK (2017); ALA. DEP’T OF CORR.
ADMIN. REG. 101 (2023); ALA. DEP’T OF CORR. ADMIN. REG. 110 (2023); ALA. DEP’T OF CORR.
ADMIN. REG. 112 (2023).
227 See, e.g., CODE ARK. R. 004.03.1-109(I) and (VI); A.R.S. § 31-230(a) (West) (authorizing
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.,
159 Wash. 2d 849, 856–57, 154 P.3d 220, 224 (2007) (explaining statutory scheme of mandatory
and prisons’ discretion to impose other deductions).
228 ALASKA STAT. § 33.30.201(d).
229 ARIZ. REV. STAT. ANN. § 31-230 (West).
230 ALA. DEP’T OF CORR., MALE INMATE HANDBOOK (2017).
231 Id. at App’x A.
232 Id. at 1.

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Department nevertheless creates many costly fees that it collects for itself,
and the description of the Department as a fiduciary seems at odds with a
court’s characterization of the property interest as being defined solely by
Arizona statute.233
The Texas Department of Criminal Justice tries to give some sense of
rights and limitations on the rights 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.”234 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. 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.235
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,236 barring people from holding other
accounts,237 reserving for prison officials the broad discretion to restrict
access to funds by incarcerated people,238 establishing forced savings
accounts,239 and even diverting funds to a corporation running a prison labor
program.240 Other provisions address basic ministerial issues, like where

See Ward v. Ryan, 623 F.3d 807, 811 (9th Cir. 2010).
Business & Finance Division: Commissary and Trust Fund Department, TEX. DEP’T CORR.,
https://www.tdcj.texas.gov/divisions/bfd/comm_trust_inmate_trust.html.
235 Id.
236 See, e.g., CAL. PENAL CODE § 2085.5 (a) and (b)(West); COLO. REV. STAT. ANN. § 17-24119(2)(a)–(d) and (3) (West); CONN. GEN. STAT. ANN. § 18-101(a) (West) (allowing
disbursements from prison wages); IDAHO CODE ANN. § 11-108(2) (West); LSA-R.S.
15:874(4)(b), (d), (e), and (g); ME. REV. STAT. tit. 34-A, § 3032(5-A) (restitution) and (5-B)
(monetary sanctions); MICH. COMP. LAWS ANN. § 791.220h(1) (West) (restitution); MICH. COMP.
LAWS ANN. § 801.253 (West) (costs of food); MICH. COMP. LAWS ANN. § 801.4b(2) (West) (fee
for being admitted to jail); Wash. Rev. Code Ann. § 72.09.480(2)(e) (West) (deducting for cost
of incarceration; WASH. ADMIN. CODE 137-28-410(3); WASH. REV. CODE ANN. § 72.09.480(2)(a),
(c), (d), and (f).
237 See, e.g., N.Y. DEP’T OF CORR. & COMM’Y SUPERVISION, DIRECTIVE 2798.II (2016).
238 See 22 ALASKA ADMIN. CODE 05.105(c) (confers right to withdraw funds for “family
members” but all other withdrawals are at the discretion of the commissioner); CONN.
AGENCIES REGS. 18-81-33(a) and (b).
239 See, e.g., ARIZ. REV. STAT. ANN. § 31-237 (West); LSA-R.S. 15:874(4)(c); MISS. CODE. ANN. §
47-5-579(6)(c) (West); WASH. REV. CODE ANN. § 72.09.480(2)(b); WASH. REV. CODE ANN. §
72.09.480(2)(b)l.
240 MISS. CODE. ANN. § 47-5-579(6)(b)(ii) (West)
233
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and how prison wages are deposited, and record-keeping.241 Finally, several
states have statutes that allocate the interest from the accounts.242
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.243 Another provision under Maine’s regulations, however, makes
it a disciplinary violation for an individual to earn, inherit, or otherwise be
credited with funds that they fail to deposit into their inmate trust account.244
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 hobbycraft
proceeds and prison wages are deposited245 and how the prison prioritizes
debts to be disbursed from the prison wages that are in the account.246
Connecticut regulations allow limited disbursements for educational
programming and ten percent of all deposits to cover costs of
incarceration.247 But there is no general statute creating or granting prison
officials control over the money belonging to incarcerated people.
Connecticut prison officials nevertheless exercise authority to freeze
individuals’ entire accounts, blocking incarcerated people from making
even small commissary purchases for necessary items, when it initiates
proceedings to seize some portion of the account to cover costs of
incarceration.248 In other words, when Connecticut officials believe that the
state has a right to some fraction of an individual’s money, they 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,249 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?
See, e.g., LA. REV. STAT. ANN. 15:874(1)—(2) (West).
LA. REV. STAT. ANN. 15:874(5) (West); ME. REV. STAT. tit. 34-A, § 3039(2) (allocating interest
to maintenance of inmate trust accounts and to general welfare fund).
243 ME. REV. STAT. tit. 34-A, § 3039(1) (requiring commissioner to allow individuals to
withdraw from inmate trust fund and transfer to outside investments).
244 CODE ME. R. tit. 03-201 Ch. 10, Subs. 20.1, § VII(F).
245 CONN. GEN. STAT. ANN. § 18-88(i) (West); Conn. Gen. Stat. Ann. § 18-101(a) (West).
246 CONN. GEN. STAT. ANN. § 18-85(b) (West).
247 CONN. AGENCIES REGS. 18-85a-4(a) and (b).
248 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) (offering no clear definition or set of rules for inmate trust
accounts but specifying that restitution payments may be deducted); IDAHO CODE ANN. § 11108(2) (West) (specifying civil judgments can be drawn from inmate trust accounts).
249 “It is clear beyond hope of contradiction that an inmate has a property interest in the
balances held in his accounts.” Young v. Wall, 642 F.3d 49, 53 (1st Cir. 2011).
241
242

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One answer is, simply, that they cannot. In Vance v. Barrett,250 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.251 The
agreement would have conferred on NDOP broad discretion to deduct
virtually the entirety 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.”252
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.253
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.”254 The court cited
Nevada’s statute governing the “Prisoners’ Personal Property Fund,” which
allowed only specified deductions from the individual’s account.255 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.”256 The court
then determined that, “Without a statutory mandate, prison officials had no
authority to confiscate inmates' property,”257 and split its analysis into two
parts: costs that were specifically authorized by statute would be analyzed
under the Takings Clause, and costs that were not authorized by statute
would be evaluated as ultra vires acts by the prison under the Due Process
Clause.258 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.259 Any other charges, however, lacked statutory
authority.260
If the Vance court was so clear that an agency could not seize funds
without statutory authority, how are prisons regularly depleting inmate
Vance v. Barrett, 345 F.3d 1083 (9th Cir. 2003).
Id. at 1086–87.
252 Id.
253 The agreements also would have required the individuals to cede all control over the
accrued interest in the accounts, despite the clear. Id at. 1087.
254 Vance v. Barrett, 345 F.3d 1083, 1087 (9th Cir. 2003).
255 NEV. STAT. Ann. § 209.241 (1993).
256 Vance v. Barrett, 345 F.3d 1083, 1086 (9th Cir. 2003) (citing NEV. STAT. 16 § 209.241(2)(c)).
257 Vance v. Barrett, 345 F.3d at 1089.
258 Id. at 1089.
259 Id.
260 Id. at 1090.
250
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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 in court.
III.

Problems with the Current System: Legal and Illegal Abuses
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.261
Just as prisons impose costs, so too do police departments,262
courthouses,263 prosecutors,264 public defenders,265 probation and parole
departments,266 and all the various private profiteers that partner with them
See generally, US COMM’N ON CIVIL RIGHTS, TARGETED FINES AND FEES AGAINST COMMUNITIES
COLOR:
CIVIL
RIGHTS
AND
CONSTITUTIONAL
IMPLICATIONS
(2017),
https://www.usccr.gov/files/pubs/2017/Statutory_Enforcement_Report2017.pdf; ALEXES
HARRIS, A POUND OF FLESH: MONETARY SANCTIONS AS A PERMANENT PUNISHMENT FOR THE POOR
(2016).
262 See, e.g., John Archibald, Police in This Tiny Alabama Town Suck Drivers into Legal ‘Black Hole’,
AL.COM (Jan. 20, 2022, 3:00 PM), https://www.al.com/news/2022/01/police-in-this-tinyalabama-town-suck-drivers-into-legal-black-hole.html.
263 See, e.g., Kevin Tampone, Which Town and Village Courts Collect the Most Fines and Fees in
NY
and
CNY?
Syracuse.com
(May
16,
2023,
6:02
PM),
https://www.syracuse.com/data/2023/05/which-town-and-village-courts-collect-themost-fines-and-fees-in-ny-and-cny.html.
264 See, e.g., Brett Kelman, They Confessed to Minor Crimes. Then City Hall Billed Them $122K in
‘Prosecution
Fees’,
DESERT
SUN
(April
26,
2018,
6:29
PM),
https://www.desertsun.com/story/news/crime_courts/2017/11/15/he-confessed-minorcrime-then-city-hall-billed-him-31-k-his-own-prosecution/846850001/.
265 See Devon Porter, PAYING FOR JUSTICE: THE HUMAN COST OF PUBLIC DEFENDER FEES, ACLU
OF
SO.
CAL.
(June
2017),
https://law.yale.edu/sites/default/files/area/center/liman/document/pdfees-report.pdf;
Williams v. Marinelli, 987 F.3d 188, 192 (2d Cir. 2021) (noting that state sued incarcerated
person for nearly $50,000 for the cost of his public defender).
266 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, CRIM. J. POL’Y PROG., HARV. L. S. (June 2020),
https://mcusercontent.com/f65678cd73457d0cbde864d05/files/f05e951e-60a9-404e-b5cc13c065b2a630/Paying_on_Probation_report_FINAL.pdf (discussing fees imposed by
261

OF

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to offer services, impose punishments, collect debts, or simply keep these
agencies running.267 But unlike the way these other agencies assess costs and
collect debts, prisons have direct and immediate access to the actual savings
of the debtors.268
Today’s fine-and-fee revenue systems have both a short and a long
history, and 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 2008 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.269
The result was a surge in fines and fees imposed on the people least
likely to be able to pay.270 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,271 the protests in Ferguson,
Missouri, following the death of Michael Brown brought national attention
to the issue.272 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,273 the Department of Justice
probation departments and probation’s role in enforcing payment of monetary sanctions as
a condition of probation); FINES & FEES J. CENT. & 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-ParoleFees-Survey-Final-2022-.pdf.
267 See, e.g., FINES & FEES JUST. CENT., 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-ElectronicMonitoring-Fees-Survey-2022.pdf (discussing fees for electronic monitoring).
268 See supra Section III.b.v.
269 See T. V. Le & M. M. Young, Regressive Revenue Sourcing by Local Governments, 60 URB. STUD.,
811 (2023), https://doi.org/10.1177/00420980221124456; FINES AND FEES J. CENT. & CENT. ON
BUDGET AND POL’Y PRIORITIES, IT’S TIME TO REJECT FINES AND FEES AS A SOLUTION TO BUDGET
PROBLEMS (May 14, 2021), https://finesandfeesjusticecenter.org/2021/05/14/ffjc-cbpp-oped-its-time-to-reject-fines-and-fees-as-a-solution-to-budget-problems/; Cortney Sanders &
Michael Leachman, STEP ONE TO AN ANTIRACIST STATE REVENUE POLICY: ELIMINATE CRIMINAL
JUSTICE FEES AND REFORM FINES, CENT. ON BUDGET AND POL’Y PRIORITIES 3 (Sept. 17, 2021),
https://www.cbpp.org/sites/default/files/9-17-21sfp.pdf.
270 Le & Young, supra note 269, at 811; Sanders & Leachman, supra note 269.
271 See, e.g., Kary L. Moss, Debtors’ Prison in Michigan: The ACLU Takes Up the Cause, MICH. B.J.,
40, 44 (July 2010); Sarah Geraghty & Melanie Velez, Bringing Transparency and Accountability
to Criminal Justice Institutions in the South, 22 STAN. L. & POL'Y REV. 455 (2011); Complaint,
Thomas v. City of Gulfport, No 1:05-CV-349-LG-RHW (S.D. Miss. July 2005).
272 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;
273 ArchCity Defenders Municipal Ct. White Paper (August 12, 2014), https://cdn0.voxcdn.com/uploads/chorus_asset/file/3459956/ArchCity_Defenders_Municipal_Courts_Wh
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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.274 In the wake of this work by community
groups and the Department of Justice, one community after another across
the country began raising the profile of the problem in their own areas.275 An
emerging picture emerged: Across the country and 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.276
For policymakers, using fines and fees to keep governments running
seemed to be an attractive solution to budget shortfalls.277 A small fee
increase—say, $35 for a public defender278 or $25 simply for being
arrested279—seemed inconsequential on paper but looked like it could fill big
budget gaps when imposed on a large number of people.280 But while the
274 U.S. DEP’T OF J. CIV. RTS. DIV., INVESTIGATION OF THE FERGUSON POLICE DEPARTMENT 42–78
(March
4,
2015),
https://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/03/04/ferguson_police_department_report.pdf.
275 See, e.g., Press Release, Lawyers’ Comm. For Civ. Rts. San Francisco, Not Just a Ferguson
Problem – How Traffic Courts Drive Inequality in California (April 9, 2015),
https://lccrsf.org/pressroom_posts/not-just-a-ferguson-problem-how-traffic-courts-driveinequality-in-california/; Raven Rakia, It’s Not Just Ferguson, THE NATION (March 5, 2015),
https://www.thenation.com/article/archive/its-not-just-ferguson/. For an analysis of how
the problems identified in Ferguson are endemic to communities across the country, see
Andrea Marsh & Emily Gerrick, Why Motive Matters: Designing Effective Policy Responses to
Modern Debtors’ Prisons, 34 YALE L. & POL’Y REV. 93 (2016).
276 Sanders & Leachman, supra note 269, at 3–5.
277 See, e.g., 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,
13–15
(June
1,
2016),
https://www.ilga.gov/reports/special/statutory%20court%20fee%20task%20force%20rep
ort.pdf; CARL REYNOLDS, ET AL., A FRAMEWORK TO IMPROVE HOW FINES, FEES, RESTITUTION AND
CHILD SUPPORT ARE ASSESSED AND COLLECTED FROM PEOPLE CONVICTED OF CRIMES: INTERIM
REPORT 1 (2009), https://csgjusticecenter.org/wp-content/uploads/2020/02/2009-CSGTXOCA-report.pdf.
278 See, e.g., Roopa Patel, Louisiana’s Public Defender Fees are Poor Fiscal and Legal Policies,
BRENNAN CENT. FOR J. (Apr. 12, 2012), https://www.brennancenter.org/our-work/analysisopinion/louisianas-public-defender-fees-are-poor-fiscal-and-legal-policies.
279 See, e.g., Adam Liptak, Charged a Fee for Getting Arrested, Whether Guilty or Not, NY TIMES
(Dec. 26, 2016), https://www.nytimes.com/2016/12/26/us/politics/charged-a-fee-forgetting-arrested-whether-guilty-or-not.html.
280 During the Great Recession, state and local governments turned toward small fees to fill
large budget 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, NBCNEWS.COM (April 11, 2009 8:52 AM),
https://www.nbcnews.com/id/wbna30162245. In the context of criminal system fees,
however, the fee increases did not always prove beneficial, and often governments did no
cost-benefit analysis at all. See, e.g., Roopa Patel, Louisiana’s Public Defender Fees are Poor Fiscal

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on-paper cost seemed small, the effects were powerfully felt in low-income
communities across the country.281
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,282 many criminal systems were often
still heavily incentivized to continue to impose them. Each of the criminal
system entities that imposed fees, after all, had its own budget to balance,
and the costs of collecting the fee-based debts are often borne by a different
entity than the entity that imposes it.283 If a courthouse needs to pay its bills
and fund its judges and staff, the threat of incarceration could be an effective
mechanism, and when people fail to pay on schedule, the courthouse does
not bear the bulk of the costs—prisons and jails do.284 So a courthouse or
judicial district or municipality or police department may find it quite
lucrative to impose fees, even though collecting that debt is expensive for
the criminal system as a whole.
Prisons and jails, however, have been the backstop enforcers of the debt
and do not have the same ability to pass costs of enforcement onto other
criminal system actors.285 They can hardly threaten to incarcerate the
incarcerated people that they want to charge. But in the years following the
2008 recession, available state tax revenue across the criminal justice system
declined.286 In many places, however, corrections spending did not decline,
suggesting that criminal justice systems either had to increase the proportion
of their existing revenues for corrections or find other ways of funding

and
Legal
Policies,
BRENNAN
CENT.
FOR
J.
(Apr.
12,
2012),
https://www.brennancenter.org/our-work/analysis-opinion/louisianas-public-defenderfees-are-poor-fiscal-and-legal-policies.
281 See, e.g., U.S. DEP’T OF J. CIV. RTS. DIV., INVESTIGATION OF THE FERGUSON POLICE DEPARTMENT
79–90
(March
4,
2015),
https://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/03/04/ferguson_police_department_report.pdf.
282 Matthew Menendez, et al., The Steep Costs of Criminal Justice Fees and Fines: A Fiscal Analysis
of Three States and Ten Counties, BRENNAN CENTER, BRENNAN CENT. FOR J. 5 (2019),
https://www.brennancenter.org/our-work/research-reports/steep-costs-criminal-justicefees-and-fines.
283 See Mathilde Laisne, Jon Wool & Christian Henrichson, Past Due: Examining the Costs and
Consequences of Charging for Justice in New Orleans I (VERA INSTITUTE I 2017).
284 See People v. Cameron, 929 N.W.2d 785, 786 (Mich. 2019) (McCormick, C.J., Conc.).
285 Matthew Menendez, et al., The Steep Costs of Criminal Justice Fees and Fines: A Fiscal Analysis
of Three States and Ten Counties, BRENNAN CENTER, BRENNAN CENT. FOR J. 9–10 (2019),
https://www.brennancenter.org/our-work/research-reports/steep-costs-criminal-justicefees-and-fines.
286Peter 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%20just
ice.pdf.

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prisons and jails.287 Prison bank accounts, and the site commissions that
come with them, offered one revenue stream.288
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.289 Inmate trust accounts had long been vulnerable
to abuse, but the recession, its impact on prisons, and the sudden ready
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.290 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 account.291 One fee
among many is a payment to a crime victim compensation board.292 In fiscal
year 2021, that one fee produced $584,587 from prison wages for the victim
compensation fund, and another $334,160 from a combination of parole
supervision fees and administrative fees assessed to incarcerated people “for
maintenance of their trust accounts.”293 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 give birth to the
fine-and-fee system so much as it fueled a system already in place. In other
287 See id. (noting that the relationship between state tax revenues and corrections spending
has declined, in contrast to past recessions during which decreased state tax revenues more
strongly correlated with decreased corrections spending).
288 See Stephen Raher, The Multi-Million Dollar Market of Sending Money to an Incarcerated Loved
One,
PRISON
POL’Y
INITIATIVE
(Jan.
2017),
https://www.prisonpolicy.org/blog/2017/01/18/money-transfer/.
289 See Lindsey Sain Jones & Goldburn P. Maynard, Jr., Unfulfilled Promises of the Fintech
Revolution, 111 CAL. L. REV. 801, 801 (2023).
290 See infra note 398.
291 Kansas law grants prison directors wide latitude to assess a variety of fees. KAN. STAT.
ANN. § 75-52,139 (West).
292 KAN. STAT. ANN. § 75-5211 (West).
293 KAN. ADMIN. REGS. 44-5-115, KANSAS ATTORNEY GENERAL, 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-annualreport.pdf?sfvrsn=eafca01a_4. It is unclear why the fee assessed against inmate trust accounts
is labeled as an administrative fee to cover maintenance of the accounts when clearly the
funds are going toward the victim compensation fund instead. 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. KANSAS DEP’T OF CORR., NOTICE TO
FRIENDS AND FAMILY
(Nov.
2022),
https://www.doc.ks.gov/facilities/inmatebanking/accesscorrectionsnovember2022/view.

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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.294
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.295 Laws against offenses
like vagrancy were used to preserve racial subjugation by imposing steep
fines for minor or vaguely worded offenses.296 Systems of convict leasing
served private economic interests in ways that mirror some privatized
prison labor practices today297 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. . . .”298 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.299
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-

Brittany Friedman et al., Who Pays for the Welfare State Austerity Politics and the Origin of
Pay-to-Stay Fees as Revenue Generation, 63 SOCIO. PERSP. 921, 923 (citations omitted). See also
Alexes Harris, Natasha Hicks & Cortney Sanders, A Pound of Flesh, INQUEST, INSTITUTE TO END
MASS INCARCERATION (May 2022), https://inquest.org/a-pound-of-flesh/.
295 Timbs v. Indiana, 139 S. Ct. 682, 688 (2019).
296 See Beth A. Colgan, The Burdens of the Excessive Fines Clause, 63 WM. & MARY L. REV. 407,
426 (2021); DOUGLAS A. BLACKMON, SLAVERY BY ANOTHER NAME: THE RE-ENSLAVEMENT OF
BLACK AMERICANS FROM THE CIVIL WAR TO WORLD WAR II 53 (2008).
297 See Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass
Incarceration, 104 CORNELL L. REV. 899, 908 (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.”).
298 DOUGLAS A. BLACKMON, SLAVERY BY ANOTHER NAME: THE RE-ENSLAVEMENT OF BLACK
AMERICANS FROM THE CIVIL WAR TO WORLD WAR II 7–82 (2008).
299 See id. at 66.
294

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generational extraction of wealth from over-criminalized communities and
a transfer of that wealth to the 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 mean that the system will
be even more change-resistant. The progress made on fines and fees in many
spaces depends on convincing stakeholders that fine-and-fee systems are
either revenue-neutral or are costing taxpayers more to enforce than the
revenue that was being raised, or that an alternative revenue stream is
available.300 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 were and are being devoted to tracking the
debt, sending notices to debtors, issuing arrest warrants for nonpayment,
conducting hearings for nonpayment, and arresting and incarcerating
individuals for nonpayment.301 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.302
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.303 To the extent courts are involved, it is
often to dismiss pro se prisoner lawsuits on procedural grounds.304
b. Inmate Trust Accounts Today: Forms of Asset Seizure

300 See WHAT WOULD IT TAKE FOR STATES TO REFORM LOCAL FINES AND FEES? TAX POL’Y CENTER,
URB. INST. & BROOKINGS INST. (Sept. 2022), https://www.taxpolicycenter.org/feature/whatwould-it-take-states-reform-local-fines-and-fees.
301 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, 169–170 (2020).
302 See id.
303 See, e.g., NEVADA’S DEPARTMENT OF CORRECTIONS’ PRACTICES EXPLOIT STRUGGLING FAMILIES
FOR
PROFIT,
FINES
AND
FEES
JUSTICE
CENTER
(Feb.
2023),
https://finesandfeesjusticecenter.org/content/uploads/2023/02/Nevada-NDOCsComissary-Pricing-1-Pager-2023.pdf (detailing Nevada Department of Corrections’ high
markup and kickbacks).
304 See, e.g., Shropshire v. Fajota, No. 315CV00164RCJWGC, 2016 WL 5346958, at *5 (D. Nev.
Aug. 18, 2016), report and recommendation adopted, No. 315CV00164RCJWGC, 2016 WL 5339667
(D. Nev. Sept. 22, 2016), aff'd, 698 F. App'x 466 (9th Cir. 2017); Simpson v. Martin, No. CIV20-985-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 supra Section III.d.4.

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Inmate trust accounts, therefore, 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.305
Asset seizures come in many forms, some of them legal,306 some of them
obviously illegal,307 and many of them somewhere in between.308 Prison
systems seize funds from inmate trust accounts in the following ways:
•
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 not seem out of the ordinary: costs for commissary items like candy,
extra clothes, paper and pens, and radios or tablets. But many costs are for
items that people might assume are provided free of charge in a prison:
water,309 toilet paper, deodorant, essential clothing items, and more. 310
Because many prisons do not provide sufficient calories in their cafeteria
portions, the largest category of commissary purchases is for food, at inflated
prices.311 Prisons also charge co-pays for every medical requests, including
for something as simple as a headache that requires over-the-counter pain
305 See Mary Fainsod Katzenstein & Maureen Waller, Taxing the Poor: Incarceration, Poverty
Governance, and the Seizure of Family Resources, 13:3 PERSP. ON POL. 638, 642 (September 2015).
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, ET AL., A FRAMEWORK TO IMPROVE HOW FINES,
FEES, RESTITUTION AND CHILD SUPPORT ARE ASSESSED AND COLLECTED FROM PEOPLE CONVICTED
OF CRIMES: INTERIM REPORT 17 (2009). The idea of drawing on inmate trust accounts to satisfy
debts had started in one county, with judges issuing 1,522 orders for withdrawals that
resulted in $65,000 in fine/court cost revenue to 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. TEX.
CIV. PRAC. & REM. CODE ANN. § 63.007(a).
306 See Fainsod Katzenstein & Waller, supra note 305.
307 See, infra footnotes 381–90.
308 Somewhere between embezzlement and seizures that withstand legal challenge are the
seizures that prisons justify on some legal ground, however shaky, and the legal challenge is
successful. 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 (D. Conn. Mar.
29, 2018), aff'd sub nom. Williams v. Marinelli, 987 F.3d 188 (2d Cir. 2021) (prison froze inmate
trust account without authority to do so).
309 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/texasprisons-water-bottles#.
310 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.
311 See id.

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reliever.312 While prisons may say they do not deny care to individuals with
$0 account balances, the debt is recorded and is repaid as soon as they have
funds in their accounts.313 When it comes to necessary commissary and
medical costs in particular, prisons have a powerful incentive to add a
significant markup.314 They have a captive market that offers purchasers no
alternative spending options.315
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.316 Other costs are for opportunities that the public may assume are
made universally available, like social visits with family, and some prisons
are now scanning all incoming mail and charging people for the time they
spend reading it.317
One of the clearest examples of the ways that 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 an inmate
trust account, given that there is no other means of purchasing basic
necessities. But prisons can impose fees simply for the management of those
funds.318 In a chicken-and-egg-type conundrum, the 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 prisoners’ assets to turn a profit
for themselves by converting individuals’ money into pre-paid debit cards
upon release, rather than giving them the cash they need and should be

312 See, e.g., STATE OF AL. DEP’T OF CORRS., INMATE CO-PAYMENT FOR HEALTH SERVICES (June 1,
2013), https://doc.alabama.gov/docs/AdminRegs/AR703.pdf; N.J. Admin. Code § 10A:161.5 (authorizing medical co-payments and medication co-payments).
313 For an overview of prison medical copay policies, see State and federal prison co-pay policies
and
sourcing
information,
PRISON
POL’Y
INITIATIVE
(April
13,
2017),
https://www.prisonpolicy.org/reports/copay_policies.html.
314 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.
315 See id.
316 “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 prisoners.” Mary Fainsod Katzenstein & Maureen Waller, Taxing the
Poor: Incarceration, Poverty Governance, and the Seizure of Family Resources, 13 PERSPS. ON POL.
638, 640 (September 2015). 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
Correction, 544 F.3d 279, 288 (3d Cir. 2008).
317 Boudin, et al., Prison Visitation Policies: A Fifty-State Survey, 32 YALE L. & POL’Y REV. 150,
176
(2013),
available
at
https://law.yale.edu/sites/default/files/area/center/liman/document/prison_visitation_
policies.pdf.
318 See Vance v. Barrett, 345 F.3d 1083, 1089–90 (9th Cir. 2003).

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entitled to.319 The cards may carry monthly fees, usage fees and activation
fees, as well as fees to check the balance or to attempt a declined
transaction.320 One company, JPay, is under a court order for charging
unauthorized fees and for its repeated misrepresentation of fee amounts.321
For people with small amounts of money that they need in order to leave
prison and recover financially, the money they had in savings while in
prison simply dissipates.322
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 the corporate entity. The first category of charges has traditionally
included commissary items in a prison-run store and medical co-pays where
the health system itself is operated by the prison. But as prisons increasingly
privatize their services, this category of in-prison charges is getting
smaller.323 The majority of in-prison costs are now charged directly by the
private companies with contractual agreements about price-setting.324
Prisons and companies engaged in this price-setting are both incentivized to
reserve as many profits for themselves as bilateral parties to a contract, and
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 draw money from the prisoners’ own funds and return it to the
prison systems in the form of site commissions or saved costs.325 The prison
319 Stephen Raher, Insufficient Funds: How Prison and Jail “Release Cards” Perpetuate the Cycle of
Poverty,
PRISON
POL’Y
INITIATIVE
(May
3,
2022),
at
https://www.prisonpolicy.org/blog/2022/05/03/releasecards/.
320 See Brown v. Stored Value Cards, Inc., 953 F.3d 567, 570 (9th Cir. 2020).
321 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-forsiphoning-taxpayer-funded-benefits-intended-to-help-people-re-enter-society-afterincarceration/.
322 Brown v. Stored Value Cards, Inc., 953 F.3d 567, 570 (9th Cir. 2020). See also Catherine E.
Akenhead, How States Can Take a Stand Against Prison Banking Profiteers, 85 GEO. WASH. L. REV.
1224, 1230 (2017).
323 See Sean Kolkey, People over Profit: The Case for Abolishing the Prison Financial System, 110
CAL. L. REV. 257, 269 (2022).
324 See CONSUMER FIN. PROT. BUREAU, JUSTICE-INVOLVED INDIVIDUALS AND THE CONSUMER
FINANCIAL MARKETPLACE 15-17 (2022).
325 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 providing nearly all of their

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systems 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 that the company is then motivated to
provide terms that are profitable for the government agency.326
Contracts for privatized goods and services are extremely lucrative for
both the prisons and the companies.327 JPay, for example, is the main service
provider for prison phone calls; internet tablets (used for music, phone calls,
video calls); and, of course, prison banking services (which come with fees
for making deposits, fees for withdrawal, and fees for the use of debit cards
distributed to people upon their release with the individual’s account
balance). JPay charges exorbitant above-market fees for these tech goods and
services, kicks back a large sum to the public entity entering the contract,
and reserves the rest to itself.328 Professors Mary Fainsod Katzenstein and
Maureen Waller described this “rapacious form of poverty governance” by
highlighting the practices in Florida, in which incarcerated people make an
estimated average $.02 per hour and commissary proceeds produce site
commissions of between $31 and 32 million each year.329

telecommunications profits and therefore 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
POLICY INITIATIVE (Feb. 11, 2019). The Federal Communications Commission has been in
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). 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. FEDERAL COMMUNICATIONS COMMISSION,
INCARCERATED PEOPLE’S COMMUNICATIONS SERVICES, https://www.fcc.gov/incarceratedpeoples_communications_services.
326 A similar contractual arrangement and scheme of perverse incentives exists around prison
phone fees. 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/.
327 For example, a contract between Dauphin County, PA, and DSI-ITI, Inc. for telecom,
internet, and banking services contained a provision granting the county percentages of
certain revenues and a minimum monthly guaranteed payment to the county of $56,533.33; a
contract between Calhoun County, TX, and Inmate Calling Solutions, LLC, for integrated
banking/commissary software and services granted the county 36 percent of adjusted gross
sales; a contract between Kalamazoo County, MI, and Canteen Services, Inc., granted the
county 10-32 percent of most commissary sales in an agreement for banking and commissary
services; a contract between Miami-Dade County, FL, and 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).
328 See, e.g., Contract Between the State of Tenn., Tenn. Dep’t of Corr. and JPay Inc., (December
28,
2012),
https://www.prisonpolicy.org/contracts/documents.html?text-searchfields=facility-and-remarks&q=&q-state=&q-document-type=&q-service=inmate-bankingsoftware&q-vendor=&sort=state#search-form.
329 Mary Fainsod Katzenstein & Maureen Waller, Taxing the Poor: Incarceration, Poverty
Governance, and the Seizure of Family Resources, 13 PERSPS. ON POL. 638, 639 (September 2015)
(footnotes omitted).

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This type of asset seizure is not a direct seizure by the state to put money
in its own coffers, but instead routes the money through the private
company first. The effects, however, are the same: Money intended for
deposit for a loved one is diverted to the prison.
•
Collecting interest.
Most state statutes divert interest from inmate trust accounts into
funds owned and operated by the prison systems.330 When incarcerated
people have challenged the practice, courts have come to different
conclusions,331 with some finding that incarcerated people are entitled to use
the principal in their accounts but cannot retain the interest,332 and other
courts find that the incarcerated person’s property interest attaches to
both.333
As some courts have begun to find that prisons cannot keep the interest
off of inmate trust accounts, prisons have shifted away from placing inmate
trust accounts into interest-bearing accounts altogether. In one opinion
addressing the question of who is entitled to the interest on inmate trust
accounts, the First Circuit described the manner in which funds once were
invested, and returns were allocated to individuals based on their average
daily balances.334 Private vendors persuaded prison officials to “reevaluate
the feasibility of paying interest on inmate accounts.”335 The practice of
investing the funds was “scrapped” as a result.336
•
Charging money for prison disciplinary infractions and
restitution.
In 2022, Louis Dixon, incarcerated at the 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.
330 Charlotte Elam, Taking an Interest in Inmate Trust Accounts, 73 VAND. L. REV. EN BANC 143,
145 (2020). Jurisdictions may allocate the interest to a “welfare” fund, see, e.g., N.J. STAT. ANN.
§ 30:4-67.1 (West), but these funds may cover a wide variety of operational costs, see supra
note 135–48
331 Id. See also Young v. Wall, 642 F.3d 49, 54 (1st Cir. 2011); Sperry v. Roberts, No. 21-3151,
2022 WL 2798994, at *7 (10th Cir. July 18, 2022).
332 See Turnacliff v. Westly, 546 F.3d 1113, 1117n2 (9th Cir. 2008).
333 Young v. Wall, 642 F.3d 49, 51–52 (1st Cir. 2011). See generally Isaac Colunga, An Alternative
Look at the Takings Clause and Inmate Trust Accounts, 39 U. TOL. L. REV. 791, 794 (2008).
334 Young v. Wall, 642 F.3d 49, 51–52 (1st Cir. 2011).
335 Id.
336 Id. The opinion signaled a trend. See Ariel Nelson, et al., Commercialized (In)Justice Litigation
Guide: Applying Consumer Laws to Commercial Bail, Prison Retail, and Private Debt Collection,
NAT’L
CONSUMER
L.
CTR.
40
(June
2020)
https://www.nclc.org/wpcontent/uploads/2022/09/WP_Litigation_Guide.pdf.

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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.337
Kansas’s administrative code puts few limits on prison officials’ ability to
impose fines for in-prison disciplinary infractions.338 Kansas prisons have
three classes of disciplinary infractions: Class I is the most serious, class II is
the
middle
category
but
includes
the
violation
of
“disrespect,” and class III offenses are more minor and might include
“unsanitary practices.”339 Fines can be imposed for any of these offenses.340
Fine amounts are capped at $10, $15, or $20 depending on the class of
offense, but there are no caps on restitution.341
Kansas is not alone.342 Oregon, for example, assesses fines up to $200 for
disciplinary violations.343 New Jersey authorizes deductions of half of prison
wages for “assessments, restitutions and fines.”344 None of these provisions
includes a requirement that the prison assess the individual’s ability pay,
and their immediate access to the funds means that they can often choose to
engage in self-help to recover costs. Moreover, given the broad authority to
impose discipline, and the vagueness of the provisions, prisons impose
restitution and unilaterally decide the cost of damage to property, even
where the damage was other than intentional or due to natural wear and
tear. Restitution amounts are withdrawn directly from the inmate trust

337 Beth Schwartzapfel, Prison Money Diaries: What People Really Make (and Spend) Behind Bars ,
MARSHALL
PROJECT
(Aug.
4,
2022),
https://www.themarshallproject.org/2022/08/04/prison-money-diaries-what-peoplereally-make-and-spend-behind-bars.
338 See KAN. ADMIN. REGS. 44-13-610 (addressing assessment of fines but not specifying any
limits).
339 KANSAS DEP’T OF CORR., DISCIPLINARY REPORTS, https://www.doc.ks.gov/victimservices/information/disciplinary-reports. 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.
340 Id.
341 Id. See also N.J. Admin. Code § 10A:2-7.1 (restitution allowed as sanction).
342 N.J. Stat. Ann. § 30:4-16.4 (West) (specifying that state can deduct restitution, fines, or
penalties, as well as any medical costs for care provided to individual)
343 OFFICE OF THE SECRETARY 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-processingdisciplinary-actions.pdf.
344 N.J. Stat. Ann. § 30:4-91.4(a), (b), & (c) (West). 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.”

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account,345 and jurisdictions may grant prison officials broad discretion to
determine the amounts of restitution.346
• 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 or fee.347 In California, half of all inmate trust
account deposits are diverted toward restitution348 and costs to the state
arising from the individual’s prosecution.349 Similarly, Oregon diverts 15
percent of deposits to court debt.350 In Nevada, the prison system
unilaterally decided, without apparent statutory authority, to seize 80
percent of all prison wages and deposits and direct those funds toward
victim restitution before public outcry led the governor to reduce the
seizures to 50 percent.351 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 any victim
costs in a particular case.352
Sometimes these debts are clearly recorded, and state law authorizes
prisons to make deductions from inmate trust accounts to satisfy these debts.
But often the process and the authority for making the deductions is less

345 N.J. Admin. Code § 10A:2-7.4(a) & (b). Nev. Rev. Stat. Ann. § 209.221(6) (West); Nev. Rev.
Stat. Ann. § 209.246 (West) (providing that Director of Department of Corrections shall
establish regulations regarding repayment of damaged property, medical costs, costs
pursuing an escaped individual or “quelling any riot,” funeral costs, costs related to release
of individual, monetary sanctions, postage, legal costs, telephone calls, returned checks,
clothing and other items required for work).
346 New Jersey leaves it to each facility to determine processes for determining amount of
restitution. N.J. Admin. Code § 10A:2-7.3.
347 See Mary Fainsod Katzenstein & Maureen Waller, Taxing the Poor: Incarceration, Poverty
Governance, and the Seizure of Family Resources, 13 PERSPS. ON POL. 638, 642 (September 2015)
(noting that when family members deposit funds in an inmate's trust or commissary account,
in many states, monies are directed to encumbrances, restitution, and other fines and fees).
348 CONSUMER FIN. PROT. BUREAU, JUSTICE-INVOLVED INDIVIDUALS AND THE CONSUMER
FINANCIAL MARKETPLACE 20 (2022).
349 California’s definition of restitution includes a variety of fees, fines, and costs, only some
of which go directly to victims. CAL. PENAL CODE § 2085.5(d)—(f).
350 CONSUMER FIN. PROT. BUREAU, supra note 348 (citing OR. REV. STAT. § 423.105).
351 Dana Gentry, Sisolak Rejects 80 Percent Seizure from Inmate Accounts in Favor of Half, NEV.
CURRENT (Jan. 25, 2021), at https://www.nevadacurrent.com/2021/01/25/sisolak-rejects80-percent-seizure-from-inmate-accounts-in-favor-of-half/.
352 N.J. Stat. Ann. § 30:4-15.1 (West)

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clear. The debt may not be clearly recorded353 or clearly legitimate,354 and
even if it is, there may be no specific authority for the prison to seize the asset
and pay the debt, particularly if there has been no determination of the
person’s ability to pay the debt without significant hardship.
In many places, state court debt is surprisingly hard to track, verify, and
even pay off. When Florida voters passed a referendum to allow people with
criminal convictions to vote, those who wanted to restore their voting rights
found it difficult or impossible to verify whether or not they still had
outstanding court debt.355 State court debt is imposed by several different
criminal system actors (police, probation, parole, prosecutors, public
defenders, and courts, to name a few), notice of the 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
even exists and in what amounts.356
With such poor documentation of court debt, prison administrators are
poorly equipped to assess 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 individual may have no way of
determining that the deducted amount was directed to the intended
recipient to satisfy the debt.
•
Imposing Per-Diem Costs of Incarceration
Many prison systems assess a general per diem cost-of-incarceration fee
and seize that money directly from individual prison accounts.357 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

See, e.g., Jesse Wegman & Damon Winter, When It Costs $53,000 to Vote, NY TIMES Oct. 7,
2021),
https://www.nytimes.com/2021/10/07/opinion/election-voting-fine-felonyflorida.html.
354 See, e.g., 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.
(April 6, 2021).
355 Wegman & Winter, supra note 353.
356 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-andfee assessments and noting that half of responding districts indicated they lacked a case
management system capable of recording debts and account balances).
357 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-howcharging-inmates-fees-behind-bars-may-violate; Brittany L. Deitch, From Estate to State: Payto-Stay Statutes and the Problematic Seizure of Inherited Property, 95 U. COLO. L. REV. 4 (2023).
353

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debt is collectible, some prison systems rely on this massive debt in order to
seize significant portions of individual prison account balances.358
Although these laws—commonly known as pay-to-stay laws—are only
one form of asset seizure, they are particularly pernicious. Given the daily
cost of incarceration,359 the fact that all incarcerated people are involuntary
“users” of prisons,360 the prison systems’ control over how to estimate the
daily costs361 and little transparency into how they do so, cost-ofincarceration laws can give prison systems the ability to simply deplete a
person’s saving with the lowest possible transaction costs. With fintech firms
like JPay, it takes only a few keystrokes by a prison administrator to move
money around.362 While due process and equal protection require ability-topay determinations before courts can order incarceration as a consequence
of nonpayment of fines and fees imposed outside of prison,363 this level of
process is rarely afforded to someone before prisons seize funds from prison
bank accounts.364
Michigan’s pay-to-stay law, after all, made all the difference when an
incarcerated person sued over the seizure of his stimulus check.365 While
358 In Connecticut, for example, the state imposes a lien for the cost of incarceration for people
convicted of certain crimes, and it draws from prison bank accounts to recoup costs. See
Williams v. Marinelli, 987 F.3d 188 (2d Cir. 2021).
359 As much as $249 per day (the highest rate in the country, set by Connecticut). Brittany
Friedman, April Fernandes, 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-beinglocked-up-remains-common/.
360 “User” is a term of art imported from noncriminal contexts in which government fees are
justified as not-taxes on the grounds that they charge simply for the use of a government
service and are not collected more broadly 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 fees, user fees are justified on the ground 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.
361 The Federal Bureau of Prisons calculates an 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/annualdetermination-of-average-cost-of-incarceration-fee-coif.
362 In some states, however, prisons must file a claim in order to seize funds from a prison
bank account. See, e.g., April D. Fernandes, et al., The “Damaged State vs. the “Willful” Nonpayer:
Pay-to-Stay and the Social Construction of Damage, Harm, and Moral Responsibility in a RentSeeking Society, 8 RUSSELL SAGE FOUND. J. SOC. SCI. 82, 90 (2022); Leah A. Plunkett, Captive
Markets, 65 HASTINGS L.J. 57, 2 (2013).
363 Bearden v. Georgia, 461 U.S. 660 (1983).
364 See Williams v. Murphy, No. 3:13-CV-01154 (MPS), 2018 WL 2016850, at *5 (D. Conn. March
29, 2018), aff'd sub nom., Williams v. Marinelli, 987 F.3d 188 (2d Cir. 2021).
365 Moore v. Washington, No. 1:20-CV-1184, 2021 WL 508304, at *4 (W.D. Mich. Feb. 11, 2021).

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Arkansas’s attempt to seize stimulus checks constituted an illegal taking,
despite being authorized by state statute,366 Michigan’s claim to the same
funds survived a legal challenge because a slightly different state law
characterized the daily cost of incarceration as a debt.367
There are many methods by which prisons and jails can recoup daily
costs of incarceration: by filing a lawsuit, negotiating in the shadow of a
lawsuit, and attaching certain assets like lawsuit proceeds and inheritances.
The question of whether prison systems can recoup costs of incarceration by
seizing funds from prison bank accounts depends sometimes on what
recoupment methods are authorized by state statutes.368 In some places,
prisons actively monitor account levels so that they can be ready to sue or
seize funds from an inmate trust account.369 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, engage in self-help and
simply take the money.370
Legality aside, state methods for recouping costs of incarceration can be
distasteful. In Michigan, the individual who challenged the state’s seizure of
his stimulus check had applied for stimulus funds only after urged to do so
by DOC staff—only to have his check then seized by the prison.371 In
Connecticut, prison officials have used their cost-of-incarceration statute
and easy access to inmate trust accounts to avoid having to pay incarcerated
people who successfully sue the Department of Corrections over prison
conditions.372 In one case, a man sued over a brutal assault he suffered at the
hands of a prison guard, won a $300,000 judgment, and the Department
simply paid half of the judgment to itself to cover the cost of his
incarceration.373 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 his entire inmate trust account so that they could prevent him from
spending it as they sought to recover the cost of his incarceration.374
Hayes v. Graves, No. 4:21-CV-00347-LPR, 2022 WL 822881, at *2 (E.D. Ark. Mar. 16, 2022).
Moore v. Washington, No. 1:20-CV-1184, 2021 WL 508304, at *4 (W.D. Mich. Feb. 11, 2021).
368 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. SCI. 82, 82-105 (2022).
369 See id. at 90.
370 Ross v. Myrick, 817 F. App'x 499, 500 (9th Cir. 2020).
371 See infra note xx.
372 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); Williams v. Murphy,
No. 3:13-CV-01154 (MPS), 2018 WL 2016850, at *12 (D. Conn. Mar. 29, 2018), aff'd sub nom.
Williams v. Marinelli, 987 F.3d 188 (2d Cir. 2021).
373 Id.
374 Hearing Before the Joint Comm. On Judiciary, H.B. 5390, 2021 Leg. Sess. (Conn. 2021)
(Testimony
of
Arthur
Liman
Center
for
Public
Interest),
366
367

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These direct seizures from inmate trust accounts to cover costs of
incarceration can form a major revenue stream for governments. At least
forty-nine states have some version of pay-to-stay laws in place.375 Over
time, as states have experienced a fiscal squeeze, such laws have
proliferated,376 offering an easy source of money to replace government
revenues that are lost in an economic downturn.377 In 2021, after Nevada
began seizing 50 percent of account deposits, the legislature proposed a 25
percent cap. The Department of Corrections balked. Because state law
required that victim restitution must be paid first out of these accounts, there
would be too little left of the 25 percent seizure for the prison system itself.
With a cap on how much it could divert funds to cover individuals’ cost of
incarceration, it would lose $3 million each year.378 Moreover, one law
enforcement litigation guidance memo instructs prisons that newly
promulgated regulations or enacted statutes can be used to seize assets from
prison bank accounts retroactively.379 If a state government wanted to seize
nearly all funds in its system-wide inmate trust account, according to this
guidance memo, all it would have to do is pass a law that retroactively
assesses each person for the entire cost of their incarceration.380
•
Embezzlement and error. Aside from the many legal or quasilegal ways to seize money from people in prison, the system of 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, and errors are difficult to catch.381
https://www.cga.ct.gov/2022/juddata/TMY/2022HB-05390-R000325-ReedGuevera,%20Mila,%20Professor-Yale%20Law%20School-TMY.PDF;
Digital
Advocacy
Project,
Repealing
the
Connecticut
Incarceration
Lien,
https://www.youtube.com/watch?v=4Xaqi2BzmmM.
375 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 (Feb. 2021).
376 Id. at 71-80.
377 For an overview of the history of costs-of-incarceration laws, see Brittany L. Deitch, From
Estate to State, 95 U. COLO. L. REV. ___ (2023); see also Friedman, supra note 375, at 71–80.
378 Michael Lyle, Prison Systems’ Approach to Inmate Money Bewilders Legislators, NEV. CURRENT
(May 20, 2021), https://www.nevadacurrent.com/2021/05/20/prison-systems-approachto-inmates-money-bewilders-legislators/.
379 Legal Issues Pertaining to Inmate Funds, 4 AELE JAIL & PRISON L. SECTION 301, 306 (April
2008).
380 See Leah A. Plunkett, Captive Markets, 65 HASTINGS L.J. 57, 68 (2013).
381 See, e.g., 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-accountrecords-so-poor-investigators-cant-say-how-much-money-is/article_93b3cac0-37ca-548aa34b-b738d0ab6874.html. See also Catherine Marfin, Ex-Dallas County sheriff’s worker admits
embezzling more than $250K from inmate fund, DALLAS MORNING NEWS (June 17, 2022, 5:51PM),
https://www.dallasnews.com/news/courts/2022/06/17/ex-dallas-county-sheriffsworker-admits-embezzling-more-than-250k-from-inmate-fund/.

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Even when individuals identify errors in their own accounts, correcting
them may be impossible. One newsletter published by a person incarcerated
in Idaho recounted 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 Centurion Health.
In response, he submitted several health services requests to see what costs
hit his account and discovered one duplicate charge and a charge for an
appointment that never took place. The reporter and others tried without
success to get prison officials to fix the problems. One person filed a
grievance after their “trust account was charged as many as fourteen times
without explanation.”382
Systemic problems in prison accounting have been evident for a long
time.383 For example, one audit of a Tulsa prison account system found that
record-keeping was so poor that it was impossible to determine how much
money had gone missing over a period of several years, but that it was at
least hundreds of thousands of dollars. One correctional employee admitted
to having pocketed $1000 a month for twelve months.384 In another example,
an Oregon state auditor found that basic controls and precautions against
fraud and malfeasance were not in place for the administration of inmate
trust accounts.385 Specifically, the auditor found that certain accounting
procedures were not in place, the structure of the system might allow fraud
to go undetected for long periods of time, and documentation supporting
transactions were inadequate to determine whether transactions were

First Amend This!: An IDOC Newsletter, Feb. ’22, BOOK OF IRVING #82431 (Feb. 5, 2022).
See, e.g., Big Shortage Is Revealed by Auditor, CLINTON DAILY NEWS 1 (Dec. 12, 1947) ( prison
official charged after $157,821.47 in cash and canteen coupons went missing from Oklahoma
prison); GOP Auditor Candidate Questions Transfer Action, ALBUQUERQUE J. 22 (Sept. 30, 1954)
(official accused of pulling funds from inmate trust account to cover penitentiary budget
shortage); Workhouse Fund “Short,” Audit Shows, DAYTON DAILY NEWS 17 (Jan 23, 1957); Ruling
Declares Warden Liable for Trust Fund, DESERET NEWS & SALT LAKE TELEGRAM 22 (Mar. 12, 1957);
Jail Bookkeeper Named in Theft, CHI. TRIB. 18 (Oct. 16, 1970).
384 Jones, supra note 381.
385 Audit Faults Oregon Prison Trust Fund System, PRISON LEGAL NEWS (December 15, 2003),
https://www.prisonlegalnews.org/news/2003/dec/15/audit-faults-oregon-prison-trustfund-system/.
382
383

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legitimate or fraudulent.386 Similar large-scale problems have been
discovered in Arizona,387 Albuquerque,388 Toledo,389 and other places.390
c. Impacts of Asset Seizures
These deductions add up. One family member of an incarcerated person
testified before the Nevada legislature about the impacts of the state’s
practices of seizing funds from her loved one’s account. “The cost of
supporting a loved one in prison is a heavy burden for us, the families and
loved ones, to bear,” she wrote. “NDOC, and by extension, the state of
Nevada, have made us a revenue stream.”391 She listed in detail the various
ways that Nevada depleted her monthly deposit of $550 and wages of $15
per month. His wages went toward room and board and a state victim fund.
While working for the prison, he injured himself and had to pay his own
medical copays. Phone calls cost her $300 each month. When the state
entered a new contract for a food provider, the amount provided was so low
that her loved one lost 30 pounds and she had to begin sending him $200
each month to supplement his diet. Her fee to make an online deposit for
him was $9.95. Care package items increased in cost about 10 or 20 percent
each quarter, and she paid 30 cents for each email and photo she sent. “This
is a very hard thing to wrap my brain around,” she wrote. “I use a free email
service. I get to send an unlimited number of characters, words, I can include
attachments and photos in my emails. . . . Everything adds up. It costs more
to send a digital photo than it does to print and send via USPS.”392
Id.
Jimmy Jenkins, Audit Finds Nearly $1 Million In Unreconciled Arizona Inmate Trust Accounts,
KJZZ 91.5 (Nov. 3, 2020, 5:52PM), https://kjzz.org/content/1632470/audit-finds-nearly-1million-unreconciled-arizona-inmate-trust-accounts.
388 Matthew Reisen, Thousands Stolen from MDC Inmates, Audit Says, ALBUQUERQUE J. (Nov. 26,
2020),
https://www.abqjournal.com/1521590/thousands-stolen-from-mdc-inmates-auditsays.html.
389 Ryan Dunn, Toledo Woman Charged in Theft from Lucas County Jail Inmate Account, TOLEDO
BLADE (Feb. 12, 2018, 5:06 PM), at https://www.toledoblade.com/local/policefire/2018/02/12/Toledo-woman-charged-in-theft-from-Lucas-County-jail-inmateaccount/stories/20180212153.
390 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-secretaryarrested-for-embezzlement/; Colleen Wilson, Former Pawnee County Jail Administrator Accused
of Embezzling Inmate's Cash, OKCFOX.
(Aug. 21, 2021), https://okcfox.com/news/local/former-pawnee-county-jail-administratorcharged-with-embezzlement.
391 Testimony of Amelia Booth, Hearing Before the Senate Judiciary, SB 416, 82nd Leg. Sess. (Apr.
14,
2023),
https://www.leg.state.nv.us/App/NELIS/REL/82nd2023/ExhibitDocument/OpenExhibi
tDocument?exhibitId=67391&fileDownloadName=SB416_SupportLetter_AmeliaBooth.pdf
392 Id. at 1–2.
386
387

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Another family member of an incarcerated person also complained that
the small food portions provided by NDOC forced her to pay the high
markup on commissary items. “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.”393
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.”394
d. Problematic Features of Prison Banking Systems
Although asset seizures happen in many different ways, they arise out
of a common set of problematic features endemic to prison banking systems.
These features are: (1) The prison systems tasked with overseeing individual
accounts operate with a high degree of conflict of interest; (2) prison banking
systems have little transparency and oversight; (3) the regulation governing
the operation of prison bank accounts is 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 prison bank accounts are
exceedingly low.
1. Conflicts of interest

393 Testimony of Crystal Voight, Hearing Before the Senate Comm. on Finance, SB 416, 82nd Leg.
Sess.
(May
23,
2023),
https://www.leg.state.nv.us/Session/82nd2023/Minutes/Senate/FIN/Final/1208.pdf.
394 Testimony of Nicole Williams, Hearing Before the Senate Comm. on Finance, SB 416, 82nd
Leg.
Sess.
(May
23,
2023),
https://www.leg.state.nv.us/Session/82nd2023/Minutes/Senate/FIN/Final/1208.pdf.

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Prisons arguably operate under a conflict of interest when they control
the money of a captive market.395 If they have any kind of 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 those
accounts interferes 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
may balk if prisons charged thousands of dollars for a bottle of water and
impose the cost as a lien on the inmate trust account, prisons accomplish the
same thing when they collect on general per diem costs of incarceration.
Privatized goods and services offer financial benefits that also conflict
with any duty prisons may have to fairly administer inmate trust
accounts.396 The contracts between companies like JPay and prison systems
provide large site commissions to the prisons while 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.397
Conflicts of interest may arise in other ways as well. The federal Bureau
of Prisons has come under criticism for its self-interested and profit-driven
management of inmate trust accounts.398 Here the allegation is not that the
prison is excessively reserving funds for itself but rather that it is not
395 John Langbein, Questioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest? 114
YALE L. J. 929, 934 (2005).
396 The problems with fintech and the captive market of prisons have been written about
extensively. 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); Catherine E.
Akenhead, How States Can Take a Stand Against Prison Banking Profiteers, 85 GEO. WASH. L. REV.
1224 (2017).; Daniel Wagner, Megabanks have prison financial services market locked up, CNTR.
FOR PUB. INTEGRITY (Oct. 2, 2014), https://publicintegrity.org/inequality-povertyopportunity/megabanks-have-prison-financial-services-market-locked-up/; Banks/Banking:
A
Curated
Collection
of
Links,
THE
MARSHALL
PROJECT,
https://www.themarshallproject.org/records/1394-banks-banking; 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/;
German
Lopez, How private bankers cash in on released prisoners, VOX (Nov. 3, 2015, 9:00AM),
https://www.vox.com/explainers/2015/11/3/9661554/prison-bank-prepaid-card; 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/.
397 See supra note 396.
398 Devlin Barret, Prison officials allowed convicted sex abuser Larry Nassar to pay little to victims
while spending thousands on himself, WASH. POST (July 28, 2021, 6:38PM),
https://www.washingtonpost.com/national-security/larry-nassar-prison-bankaccount/2021/07/28/abdf6560-ee14-11eb-bf80-e3877d9c5f06_story.html; Devlin Barrett,
U.S. prison officials resist making inmates pay court-ordered victim fees, WASH. POST (August 4,
2022, 4:52PM), https://www.washingtonpost.com/national-security/2022/08/04/federalprisons-money-victims/; Devlin Barrett, Federal inmates would pay more to victims under new
Justice
Dept.
rule,
WASH.
POST
(Jan.
9,
2023,
12:16PM),
https://www.washingtonpost.com/national-security/2023/01/09/prisoner-accounts-newrules-victims/.

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proactively diverting funds belonging to incarcerated people to pay victim
restitution.399 Critics argue that the prisons are incentivized not to divert
money to victims because the higher account balances in inmate trust
accounts give incarcerated people more capacity to spend money in the
commissary, and that commissary profits and interest on the commissary
fund are used for BOP salaries and other costs.400
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 whether any internal checks are in place to ensure proper
management.401 Any oversight mechanisms are entirely internal to the
prison. At most, inmate trust accounts occupy a single line in a prison budget
document. 402 Often, however, a state’s annual prison budget will contain
line items for commissary funds and welfare funds (often some form of
pooled asset for the general welfare of incarcerated people, though that term
may be understood as so flexible that the funds can be diverted to general
operations), but with no mention of the inmate trust account.403 The practice
may have benign reasons (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 a system’s inmate trust account is,

See supra note 398.
Devlin Barrett, Federal inmates would pay more to victims under new Justice Dept. rule, WASH.
POST (Jan. 9, 2023, 12:16 PM), https://www.washingtonpost.com/nationalsecurity/2023/01/09/prisoner-accounts-new-rules-victims/; Letter from K. Harne, U.S.
Dep’t of Justice, to Jason Wojdylo, Fed. Managers Ass’n, U.S. Marshals Service Ch. 373 (July
18, 2022) (responding to Freedom of Information Request).
401 See Dale Chappel, BOP Trust Fund Accounts Reportedly Shield Prisoners from Payment
Obligations,
PRISON
LEGAL
NEWS
(Dec.
1,
21),
https://www.prisonlegalnews.org/news/2021/dec/1/bop-trust-fund-accountsreportedly-shield-prisoners-payment-obligations/ (detailing how even some law
enforcement agencies are critical of the lack of transparency around prison accounts and how
they lack the regulation and oversight of traditional bank accounts, making them susceptible
to abuse).
401 See Catherine E. Akenhead, How States Can Take a Stand Against Prison Banking Profiteers,
85 GEO. WASH. L. REV. 1224, 1247 (2017).
402 Id.
403 For example, California and Texas both issue annual budget reports with line items for
commissary and welfare funds but not the inmate trust fund. See CAL. DEP’T OF CORR. &
REHAB.,
2022–23
STATE
BUDGET,
https://ebudget.ca.gov/202223/pdf/Enacted/GovernorsBudget/5210.pdf; TEX. DEP’T OF CRIM. J., AGENCY OPERATING
BUDGET
2022
(Aug.
27,
2021),
https://www.tdcj.texas.gov/documents/bfd/FY2022_Operating_Budget_LBB.pdf.
399
400

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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
To the extent that high-level data on the aggregate inmate trust account
across a system is difficult to find, getting information about individual
accounts in order to review historical account balances or any irregularities
is nearly impossible. Prisons will disclose information that is specific to
individual incarcerated people only with a subpoena or a signed release of
information by the holder of the account. But information related to an
individual’s prison account, purchases, credits, and deductions, is generally
not kept as part of an individual’s correctional file. Prisons may therefore
not release it to anyone, even with a signed release of information.
Fintech firms like JPay complicate this picture even more, because
the company may have exclusive access to detailed information about an
individual’s account. JPay’s policy is that it will not release account
information about an individual’s account, even with a signed release or
power of attorney.405
3. Minimal Regulation
As explained above, state regulation rarely provides the contours of
property rights and obligations to the funds and instead creates several
paths for prison systems to access funds and few restrictions on that
authority. By contrast, state regulation rarely creates enforceable rights of
access for individual account holders. State statute may offer a definition of
inmate trust accounts that offers no insight into how the fund is managed or
is simply tautological,406 and other statutes are short and vague.407
Together, the statutes and regulations offer few parameters on who
can access the accounts and for what purpose, what the specific legal
relationship between the incarcerated person and the fund, the prison and
the fund, and the prison and incarcerated person as individuals in a financial
relationship.
404 The federal system has a more regularized accounting practice than many states when it
comes to inmate trust accounts. See U.S. DEP’T OF JUST., FED. BUREAU OF PRISONS, PROGRAM
STATEMENT NO. 4500.12, TRUST FUND/DEPOSIT FUND MANUAL 16 (March 14, 2018) (“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 (March 17, 2023).
406 See, e.g., TENN. CODE ANN. § 41-21-801.
407 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.

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4. Lack of Judicial Recourse
Incarcerated people face immense hurdles challenging all the various
ways that prisons siphon off their inmate trust account funds in court.
Prisons can carry out unauthorized deductions for years without challenge,
and even when challenged, the timeframe of 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.408
Once a challenge finally reached the Kansas Supreme Court on a procedural
issue, one justice raised an 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 the 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?409
There are many reasons that system-wide policy changes can take years
to challenge. Before individuals can even file a lawsuit against a prison in
federal court, they must exhaust their internal administrative remedies.410
But the complicated arrangement of public-private management of inmate
trust accounts raises the question of who is accountable for any 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, the prison
administrator may refer them to the corporate firm responsible for the
financial transfers, which is often also the firm responsible for whatever item
was purchased through the inmate trust account. If an individual wants to
complain about a defective product purchased through an inmate trust
account, a product never delivered, an erroneous amount charged, or other
issues with deductions from their accounts, they may never even get a
person from the company on the phone.411
Assuming the individual is able to exhaust their administrative
remedies, and setting aside the basic logistical challenges of filing any
408 Matson v. Kansas Dep't of Corr., 301 Kan. 654, 559–660, 346 P.3d 327, 331 (2015) (Biles, J.
conc.).
409 Id.
410 42 U.S.C.A. § 1997e (West).
411 See, e.g., CONSUMER FIN. PROT. BUREAU, JUSTICE-INVOLVED INDIVIDUALS AND THE CONSUMER
FINANCIAL MARKETPLACE 18 (2022).

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lawsuit in prison, claims are regularly dismissed on sovereign immunity
grounds, defects in the pleadings, and failure to pay the filing fees.412
Incarcerated people have had little success in arguing for substantive
protections for their money that would be available outside of prisons. For
example, courts have found that the Federal Debt Collection Practices Act
does not apply to prison bank accounts,413 and some courts have held that
the Takings Clause does not prohibit prisons and jails from keeping the
interest on such accounts.414 Common law claims like conversion and unjust
enrichment are rarely raised.415
Federal courts have inconsistently described the property interest that
an individual has in their prison account funds and the substantive due
process principles that attach. Federal courts have clearly recognized that
people in prison have a property interest in their trust account funds such
that the deprivation of funds triggered due process protections,416 but the
Supreme Court’s decision in Sandin v. Connor upended the framework that
would have offered meaningful constitutional protection. With respect to
inmate trust accounts, “Sandin . . . shift[s] 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.”417 Previous courts’ “holding that prisoners have a protected
property interest in the funds in their prison trust accounts is no longer good
law. . . .”418
Similarly, in finding that the Takings Clause did not prohibit the
withholding of accrued interest from prisoners, the First Circuit explained
in Young v. Wall: “It is clear beyond hope of contradiction that an inmate has
a property interest in the balances held in his accounts,”419 but that “[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

412 See, e.g., Brazier v. California Dep't of Correction & Rehab., 523 F. App'x 477, 477–78 (9th
Cir. 2013); McDade v. Thomas, 174 F.3d 198 (5th Cir. 1999).
413 United States v. Diehl, 848 F.3d 629 (5th Cir. 2017).
414 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 (9th Cir. 1998).
415 When raised, they have not been successful, though the pro se nature of the litigation may
explain the failure of these claims. See, e.g., Moore v. Washington, No. 1:20-CV-1184, 2021 WL
508304 (W.D. Mich. Feb. 11, 2021).
416 See Gillihan v. Shillinger, 872 F.2d 935, 938–39 (10th Cir. 1989).
417 Clark v. Wilson, 625 F.3d 686, 690–92 (10th Cir. 2010) (citing Sandin v. Connor, 515 U.S.
472, 484) (1995).
418 Id.
419 Young v. Wall, 642 F.3d 49, 53 (1st Cir. 2011) (citing Reynolds v. Wagner, 128 F.3d 166, 179
(3d Cir.1997) (collecting cases)). For a detailed look at the complicated nature of prisoners’
property rights, see Isaac Colunga, An Alternative Look at the Takings Clause and Inmate Trust
Accounts, 39 U. TOL. L. REV. 791, 806 (2008).

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demand interest on RIDOC-held accounts.”420 Despite the earlier
pronouncement that people in prison have an unequivocal right and interest
in their own property, their funds are understood in this opinion as being
both held by the Department of Corrections 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. In Young, the court 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.”421 The court emphasized the limited property
rights of incarcerated people throughout history but failed to explain how
the lesser rights of incarcerated people justified diverting the property to the
prisons.
Even when an individual has a substantively strong claim, the path to
actually getting into court is narrow and full of obstacles. Many lawsuits
alleging mismanagement of prison bank accounts are dismissed for failure
to abide by the procedural requirements of the Prison Litigation Reform
Act.422 Once the individual who spots the banking error ascertains whether
the prison or the company is responsible, a claimant must exhaust
administrative remedies to challenge the seizure.423 In many places, the
process is labyrinthine, with multiple steps, and each denial followed by a
quick turnaround time for refiling or appealing.424 In a case where an
individual sued Nevada Department of Corrections for garnishing veterans’
benefits in an inmate trust account fund, in violation of federal law, the
Ninth Circuit found that, although the garnishment of such funds was
illegal, the fact that the individual had ended the grievance process after the

Young, supra note 419, at 54.
Id. (omitting citations).
422 See McDade v. Thomas, 174 F.3d 198 (5th Cir. 1999); Shropshire v. Fajota, No.
315CV00164RCJWGC, 2016 WL 5346958, at *5 (D. Nev. Aug. 18, 2016), report and
recommendation adopted, No. 315CV00164RCJWGC, 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-20-985C, 2021 WL 3476613 (W.D. Okla. Aug. 6, 2021), aff'd, No. 21-6104, 2022 WL 1087139 (10th Cir.
Apr. 12, 2022).
423 Like other types of prison lawsuits, a large number of suits over inmate trust accounts are
dismissed for failure to exhaust administrative remedies. See, e.g., Beal v. Washington, 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).
424 See Shropshire v. Fajota, No. 315CV00164RCJWGC, 2016 WL 5346958, at *4 (D. Nev. Aug.
18, 2016), report and recommendation adopted, No. 315CV00164RCJWGC, 2016 WL 5339667 (D.
Nev. Sept. 22, 2016), aff'd, 698 F. App'x 466 (9th Cir. 2017) (describing a four-stage grievance
process).
420
421

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third step in a four-stage process and then refiled the grievance meant that
he had not exhausted his administrative remedies.425
Finally, the doctrine of qualified immunity has kept many inmate trust
account claims out of court. Balancing the need for public accountability and
to protect corrections officials from “harassment, distraction, and liability
when they perform their duties reasonably,” the Supreme Court applied
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.”426 This rule—precluding relief where there is a mistake in
law—is especially problematic given the minimal regulation of inmate trust
accounts. Because the statutes and regulations are silent on so many of the
ways that prisons might seize or divert funds, they have a broad ability to
commit many “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 entirely accidental. The
Association for Effective Law Enforcement is an organization whose goal is
to “enhance the criminal justice community and to reduce potential criminal
and civil liability of criminal justice professionals and their employers.”427 It
distributes monthly legal memos outlining the limits and scope of law
enforcement liability, and in its 2008 memo “Legal Issues Pertaining to
Inmate Funds,” it instructs corrections officials that any valid court order for
payment permits the prison system to withdraw funds from an individual’s
account.428 Moreover, if an order for payment does not contain a payment
schedule, the memo takes the position that the debt is “collectible
immediately,” with no mention of an ability-to-pay determination or a
processes for determining the legitimacy of the debt.429 In other words, this
law enforcement litigation guide would give prisons carte blanche to take
on the role of debt enforcers for any debt that a person in prison may owe,
and while the examples listed center on debts related to criminal system
involvement, in theory, under the theory offered, prisons can decide to
become debt collectors on behalf of all kinds of creditors to people in prison.
The memo offers something of a roadmap, detailing the various rationales
for seizing funds directly from inmate trust accounts and also identifying
asset targets: pension funds belonging to people in prisons430, inheritances
and life insurance proceeds from deceased loved ones,431 disability pension

425 Id. 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).
426 Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009).
427 Legal Issues Pertaining to Inmate Funds, 2008 AELE JAIL & PRISON L. SECTION 301, 306 (2008).
428 Id. at 302.
429 Id. at 306.
430 Id. at 302.
431 Id. at 303.

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payments, 432 veterans’ disability payments, 433and already meager prison
wages.434
A more systematic and structural barrier to accessing the courts is at play
as well. In order 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. Where an individual has
stacked debts that leave their prison bank account in the red, prison staff
may elect to deprioritize filing fees. When prisons pay other debts out of
incoming funds rather than the individual’s filing costs, the court can then
dismiss the lawsuit for failure to pay the filing fees:
“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.”435
While courts may recognize that such a maneuver by prisons derives from a
conflict of interest and allow the suit to go forward,436 it nevertheless
requires the individual to devote additional litigation resources and skills
that they may not be able to deploy in order to both document the prisons’
actions and competently assert their challenges to the filing fee practice.
5. Low transaction costs
Unlike other fee systems, there are few or no transaction costs incurred
when a prison deducts fees from prison accounts and diverts it to itself,
because prison officials have full access to the inmate trust accounts.
In 2019, the Brennan Center issued a report from a multi-jurisdictional
study of fine-and-fee enforcement and the criminal system costs of
recovering fines and fees from criminal defendants, the vast majority of
whom are indigent.437 This long-awaited study confirmed what many had
Id.
Id. at 304.
434 Id.
435 Sultan v. Fenoglio, 775 F.3d 888, 890 (7th Cir. 2015).
436 Id.
437 Matthew Menendez, Lauren-Brooke Eisen & Michael Crowley, The Steep Costs of Criminal
Justice Fees and Fines: A Fiscal Analysis of Three States and Ten Counties, BRENNAN CENTER,
BRENNAN CENT. FOR J. (2019), https://www.brennancenter.org/our-work/researchreports/steep-costs-criminal-justice-fees-and-fines.
432
433

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long suspected: that “[f]ees and fines are an inefficient source of government
revenue.”438
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,
which imposes significant costs to the system, and other resources are
devoted to collections.439 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.”440 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. It is no
surprise that the Brennan Center found that attempting to collect on such
debts is, for many jurisdictions, fiscally irrational.
Compare this process with the procedures for collecting court debt or inprison costs from inmate trust accounts, in which the entity imposing and
collecting the fee has immediate electronic access to the funds.441 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 funds belonging to prisoners 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 whether one area of law or another 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 the best practices in place for a legal category
Id. at 5.
Id.
440 Id. For a thorough explanation of the difficulty of calculating actual costs of enforcement,
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, 169–174 (2020).
441 See, e.g., CORR. CORP. OF AMER., INMATE/RESIDENT TRUST FUNDS POLICY FOR METRODAVIDSON COUNTY DETENTION FACILITY 2-5.1, 2-5.2, 2-5.4 (Dec. 8, 2008),
https://www.prisonlegalnews.org/news/publications/inmate-accounts-policy-metrodavidson-co-detention-facility-cca-2009/ (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 at the request of the incarcerated person and some that are neither
requested nor authorized by the incarcerated person).
438
439

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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.”442
IV.

The Paths Forward

There are two options for undoing a system that makes the current
abuses of prison banking seemingly inevitable: (1) increase regulation, by
introducing free-world law and other regulations, oversight, and
transparency into prisons, and (2) take banking out of prisons.
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: banking, consumer protection, trust
principles, and antitrust, for example. To be sure, introducing regulation
into prisons meets significant challenges, and efforts to apply non-carceral
law to inmate trust accounts have not gained significant traction.443 But
simply illuminating the problems of prison banking can and should invite
more sustained attention to regulating it.
Each of the areas of free-world law that could apply to the companies
administering inmate trust accounts could be its own area of study, and
exploring each is beyond the scope of this project. But we can narrow the
focus a little by addressing the precise function of inmate trust accounts:
Although banks perform multiple functions, inmate trust accounts really do
only one thing, which is to operate as a payments system.444 Unlike banks,
nonbank payment systems offer no access to credit or advisory services445
(activities that warrant their own layers of regulation), and the intersection
of payments system regulation and consumer protection is far narrower

442 See Ellibee v. Simmons, 32 Kan. App. 2d 519, 523, 85 P.3d 216, 219 (2004) (upholding
mandatory savings program to hold funds for release even for individuals serving life
sentences).
443 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 Sean Kolkey, People over
Profit: The Case for Abolishing the Prison Financial System, 110 CAL. L. REV. 257, 283—86 (2022).
See also Aaron Littman, Free-World Law Behind Bars, 131 YALE L. J. 1385, 1424–35 (2021)
(describing primary barriers to free-world regulation in prisons).
444 See U.S. Payment System Policy Issues: Faster Payments and Innovation, CONG. RESEARCH SERV.
4–6
(September
2019)
(providing
overview
of
regulatory
framework),
https://sgp.fas.org/crs/misc/R45927.pdf.
445 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.”).

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than the broader field of consumer law.446 Looking at payments system
regulation alone, therefore, provides some window into how these other
free-world areas of law can make inmate trust accounts operate in a fairer
way.
The Consumer Financial Protection Bureau is well-positioned to regulate
and oversee some discrete aspects of privatized prison payment systems,447
and in fact has done so. In 2021, 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.”448 CFPB took enforcement
action against JPay because of the company’s requirement that people
released from prison receive their unspent inmate trust account funds on
debit cards that carried high fees.449
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 and then were forced to transfer
to debit cards, imposing fees that violated the cardholder agreements, and
misrepresenting debit card fees to as many as 176,000 consumers.450
This measure was significant but also illustrates that existing regulations
that apply to private companies can only go so far in reining in prison
banking abuses.451 The CFPB relied on the Electronic Funds Transfer Act452
and the Consumer Financial Protection Act453 to penalize JPay, but these

Though narrower than the broader field of money regulation, the intersection of the two
fields is not small. See generally, NAT’L CONSUMER L. CENT., CONSUMER BANKING AND PAYMENTS
LAW (6th ed. 2018), www.nclc.org/library.
447 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-guidingprinciples-for-faster-payment-networks/.
448 CONSUMER FIN. PROT. BUREAU, Statement of CFPB Director Rohit Chopra on the JPay
Enforcement
Action
(October
19,
2021),
https://files.consumerfinance.gov/f/documents/cfpb_jpay-llc_director-statement_202110.pdf.
449 Id.
450 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. DEP’T CORR. 58 (April
10, 2014, 1:30PM) https://www.prisonpolicy.org/contracts/documents.html?text-searchfields=facility-and-remarks&q=&q-state=&q-document-type=&q-service=inmate-bankingsoftware&q-vendor=&sort=state#search-form.
451 See Sean Kolkey, People over Profit: The Case for Abolishing the Prison Financial System, 110
CAL. L. REV. 257, 279—80 (2022) (explaining the limitations of CFPB’s regulation of prison
financial services providers).
452 15 U.S.C. § 1693 et seq.
453 12 U.S.C. § 5481 et seq.
446

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laws focus on the private providers of financial products.454 While
companies like JPay are more than willing participants in exploitative prison
banking practices, the prisons themselves are the central actors in enabling
a system in which JPay can take advantage of a vulnerable and captive
market.
Where existing financial regulation falls short, the field of trust law offers
promising avenues to target the more structural weaknesses of the current
system: 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 account law,455 the field that most naturally applies
to the structure of prison banking systems is the law of trusts.
It is no accident that the most common term for prison accounts is
“inmate trust account.” Although the term “trust” can mean different things
in different contexts, and the legal definition of a 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.”456 While not all governments will
agree a priori that a fiduciary obligation exists, at least the federal
government has acknowledged that it has a fiduciary obligation toward
federal inmate trust accounts.457 It would be hard to argue in any event that
the government has absolutely no protective duty toward the funds in
inmate trust accounts and that the funds can be seized at will.
One court has acknowledged that trust law in the free world would
prohibit the federal government from administering inmate trust accounts
in the manner that it does. The Federal Court of Claims addressed one
plaintiff’s argument that the prisons’ Inmate Financial Responsibility
Program violated trust law because it coerced him into making payments
454 See Kolkey, infra note 451 (highlighting the limitations of the Electronic Funds Transfer Act
as a regulatory tool in this context).
455 See infra note 177.
456 RESTATEMENT (THIRD) OF TRUSTS § 2 (2003).
457 See infra notes 123–125. Under government accounting standards, the question of whether
a government agrees that the account is a trust raises a chicken-and-egg problem.
Government accounting standards require that the government not be 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 standards of accounting when it comes to
inmate trust accounts because, when the government self-deals as it does, the account
becomes something other than 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 the money creates the very problem that
the accounting standards attempt to solve.

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out of his account.458 The court found that, “[w]hile 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.”459 The
court 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 plaintiff's relationship with the BOP.”460 The court did not
deny that there the government played a “fiduciary role,” but that the prison
setting changed the nature of that role.461 The court did not explain what
“fiduciary” could possibly mean in this context, if not that the prison must
act in the best interests of its beneficiaries.462
The Federal Court of Claims has since reiterated that a fiduciary
obligation by BOP exists, but without addressing how this role can coexist
with a coercive government program to extract funds from the account to
pay itself and others.463 Other courts have been willing to apply basic trust
principles to inmate trust accounts.464 In North Carolina, an appellate court
reviewed a decision of a state commission that adjudicates damages claims
against the state, in which the commission found that prison officials had
breached their fiduciary duty with regard to inmate trust accounts when it
deducted a $10 administrative fee from the account.465 Prison officials did
not challenge on appeal the commission’s application of trust principles.466
Similarly, in Wisconsin, a federal court found that both the savings account
and the spendable account belonged to the incarcerated person were “trust
fund accounts, since the funds in them are held by the prison in trust for Mr.
Spence.”467
Salter v. United States, 119 Fed. Cl. 359, 367 (2014).
Id.
460 Id.
461 Id.
462 The Consumer Financial Protection Bureau explains that, “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/.
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.
463 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 (2023) (noting briefly that generally, a
“department of corrections acts as a trustee of the account with the inmate as the
beneficiary”).
464 Matson v. Kansas Dep't of Corr., 301 Kan. 654, 657, 346 P.3d 327, 330 (2015). See also 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. App. Sept. 28, 2004). See also Cal. Penal Code § 5008 (West)
(stating that money in inmate trust accounts shall be held “in trust with the Treasurer”).
465 Lytle v. North Carolina Dep't of Pub. Safety, 249 N.C. App. 682, 791 S.E.2d 877 (2016).
466 Id.
467 Spence v. McCaughtry, 46 F. Supp. 2d 861, 862–63 (E.D. Wis. 1999) (citations omitted).
458
459

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In Kansas, an incarcerated person sued the Kansas Department of
Corrections and others over alleged mismanagement of his inmate trust
account, specifically disputing certain deductions under the Kansas Uniform
Trust Code.468 On the sole issue of venue, corrections officials argued that
Kansas trust law could not apply because the inmate trust account was not
a true trust. The Kansas Supreme Court, however, had “no difficulty finding
the plain language of the applicable statutes establishes the inmate trust
account is, in fact, a trust subject to the KUTC.”469
The fact 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 be and should be
applicable to the type of trust accounts that prisons are operating.470
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 would
naturally apply.471 “Fiduciary funds” are a class of funds that governments
commonly operate and include such things as pension plans.472
Governments abide by well-recognized principles governing how fiduciary
funds are to operate,473 and have basic authoritative standards of accounting
that should be in place when the government is holding someone else’s
money.474
The Governmental Accounting Standards Board, which sets nonbinding accounting standards for state and local governments, considers
inmate trust accounts to fall under a category of fiduciary funds called

Matson v. Kansas Dep't of Corr., 301 Kan. 654, 657, 346 P.3d 327, 330 (2015).
Matson v. Kansas Dep't of Corr., 301 Kan. 654, 657, 346 P.3d 327, 330 (2015)
470 “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 (2003).
471 GOVERNMENTAL ACCOUNTING STANDARDS BOARD, STATEMENT NO. 84 OF THE GOVERNMENTAL
ACCOUNTING STANDARDS BOARD: FIDUCIARY ACTIVITIES 3 (Jan. 2017).
472 Id.; GOVERNMENTAL ACCOUNTING STANDARDS BOARD, IMPLEMENTATION GUIDE NO. 2019-2,
FIDUCIARY ACTIVITIES 1–3 (June 2019). The four types of fiduciary funds are post-employment
trust funds like pensions, investment trust funds, and private-purpose trust funds. Id. at ii.
473 Non-binding accounting standards are set by the Government Accounting Standards
Board for state and local governments and the Federal Accounting Standards Advisory Board
for the federal government. For federal standards applicable to fiduciary fund activities, see
FEDERAL ACCOUNTING STANDARDS ADVISORY BOARD, 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. See also Warren
Gorham & Lamont, FASAB Splits “Trust Fund” Project in Two, in GOVERNMENT ACCOUNTING
& AUDITING UPDATES (Oct. 2002), 2002 WL 32121294.
474 See supra note 473.
468
469

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custodial funds.475 While the GASB’s role is advisory, and it is up to states
and local governments themselves to 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.476
Beyond the existing sources of regulation that can be found in fields like
financial regulations, consumer law, and trusts, advocacy groups are
currently working to more closely regulate and limit the authority of
governments to seize and divert inmate trust funds. In Nevada, the Fines
and Fees Justice Center has targeted an array of fees that made Nevada one
of the most expensive prison system for incarcerated people.477 The Nevada
legislature, in its 2023 session, passed measures that eliminated room-andboard fees, medical copays, and commissary markups on hygiene items.478
b. Abolition
The second set of answers lies in an abolitionist strategy of establishing
banking systems for incarcerated people entirely outside of the prison
systems. There are two sides of an abolitionist ethic: the dismantling of a
punitive infrastructure and the creation of its alternative.479 While some
abolitionist and decarceral efforts get stymied by a lack of political will to
create the alternative, in some ways, abolishing inmate trust accounts may
be easier. 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 original various rationales for prisons controlling the
banking of incarcerated people, 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. Moreover, tracking
debts and garnishment for in-prison and should be distinctly a process
governed by courts and judicial processes, in the same manner in which
475 GOVERNMENTAL ACCOUNTING STANDARDS BOARD, IMPLEMENTATION GUIDE NO. 2019-2,
FIDUCIARY ACTIVITIES 5 (June 2019).
476 GOVERNMENTAL ACCOUNTING STANDARDS BOARD, 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.
477 Nick Shepack, Nevada Ends Exploitative Incarceration Costs While Laying Groundwork for
Future
Misdemeanor
Reform,
FINES & FEES J. CENT.
(July
13,
2023),
https://finesandfeesjusticecenter.org/2023/07/13/nevada-ends-exploitative-incarcerationcosts-while-laying-groundwork-for-future-misdemeanor-reform/.
478 Id.
479 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.”

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debts and garnishments are assessed against non-incarcerated people.
Supposed criminal justice debts— whether for court fines and fees, per diem
costs of incarceration, in-prison fines and restitution for disciplinary
violations, and other debts—should be adjudicated by courts, just as debts
are adjudicated for people who are not in prison. In other words, if one of
the primary original goals of inmate trust accounts was to create a cashless
payment system within prisons, such a thing is now entirely possible
without 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 the money belonging
to incarcerated people will necessarily create a brake in the one-way ratchet
of price hikes that exists when prices are set unilaterally by prisons and their
corporate partners.
Prisons may yet claim that they need to both surveil and control
spending by incarcerated people for security reasons. 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, but
downplay the risk of violence in order to assuage courts that judicial
interference is unnecessary in others.480 “Violence, in short, is real when the
state needs it to be.”481
To the extent that prisons have security concerns about account balances
and spending that are not actively and consistently monitored and
controlled by prison officials, a more robust conversation and literature
about the precise nature of the security threats is necessary to justify the
entire prison banking infrastructure. In other words, a small or theoretical
risk to security cannot justify the massive, expensive, and harmful
infrastructure currently in place, 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 simply
making them optional, would leave many incarcerated people without a
means to access cost-bearing goods and services in prison. For those with

480 Justin Driver & Emma Kaufman, The Incoherence of Prison Law, 135 HARV. L. REV. 516, 569
(2021).
481 Id. Driver and Kaufman emphasize that inconsistent claims about the nature and risk of
violence in prisons is 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 570.

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the least resources, the option to use outside bank accounts would be purely
theoretical.
It remains to be seen, therefore, whether an initial step—eliminating
mandatory inmate trust accounts and substituting private online banking
for those who have access to such accounts—would be a meaningful one.
This question naturally directs us to the other half of the abolitionist ethic,
which is to create a system of care in place of the punitive one that is
dismantled. The broader problem of financial inclusion remains, whether or
not there is regulation of prison banking or banking moves out of prisons.
Even if inmate trust accounts coexist as an option alongside a policy
allowing people to use and access outside bank accounts, many people will
still have no choice but to use inmate trust accounts if cashless purchasing is
required.482
In other words, abolition of prison banking does not solve the broader
problems of financial inclusion when it comes to payment systems and
financial technology.483 After all, when the federal stimulus checks were
issued, the fee deductions were not just a problem for people in prison but
also for broader groups of unbanked people.484 True financial inclusion for
the broader population of unbanked and underbanked individuals is “a
problem requiring structural redesign, rather than market-oriented patch
fixes driven by neoliberal ideology.”485
As with other abolitionist strategies, moving toward the end goal of
abolishing inmate trust accounts requires recognition of systemic barriers
both in and out of carceral spaces: Prison banking is an aspect of a more
expansive system of financial exclusion in which the payments systems
routinely make banking more expensive for poor people.486
Other futures are possible, such as community banking487 and public
banking options488 as 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.489 Alternatively, a public banking option would allow
482 See Inclusive Banking During a Pandemic: Using FedAccounts and Digital Tools to Improve
Delivery of Stimulus Payments: Hearing Before the H. Comm. on Financial Serv. 116th Cong. (2020
(testimony of Mehrsa Baradaran).
483 See, e.g., Lindsay Sain Jones & Goldburn P. Maynard, Jr., Unfulfilled Promises of the Fintech
Revolution, 111 CAL. L. REV. 801, 804 (2023).
484 For people in the free world, the fees related 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 (April
2020).
485 Id. at 3.
486 See Mehrsa Baradaran, Banking on Democracy, 98 WASH. U. L. REV. 353, 357 (2020).
487 Sean Kolkey, People over Profit: The Case for Abolishing the Prison Financial System, 110 CAL.
L. REV. 257, 260 (2022).
488 Aaron Littman, Free-World Law Behind Bars, 131 YALE L. J. 1385, 1416 n.145 (2022).
489 Kolkey, infra note 489, at 289—95.

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individuals to make direct money transfers with an individual account with
the Federal Reserve, eliminating fees altogether.490
V.

Conclusion

Prison banking is a long-standing and under-examined feature of
carceral systems. It has evolved into a profit-driven institution that places
substantial economic burdens on poor individuals and the family members
and friends who support them.
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 policy makers to create and evaluate prison banking systems
according to basic principles of money regulation at work in the free world.
Instead of asking simply if the practices of prison banking are consistent
with penological objectives, courts and policymakers should be asking how
to recognize a property interest that incarcerated people have in their own
funds. From there, any banking and purchasing system within prisons
should be evaluated along the following metrics: Does the system avoid
conflicted decision-making by prison officials? Is the system subjected to
adequate independent financial regulatory oversight that protects the funds
of incarcerated people? Are the banking practices transparent, both to
individuals and their families who are using the banking system, and to
evaluators on the outside who can review aggregate inmate trust account
financial data for a particular prison or a particular system? Are the
procedures involved in 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 family and friends.
By shifting the legal framework away from a purely penological set of
questions, this examination of prison banking aims to refocus the
conversation on the rights of individuals to access and spend their own
money and, until inmate trust accounts are abolished, the obligations of
carceral systems to safeguard the money they contain. 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 greater detail what proponents of public
banking and community banking have already suggested. Instead, this
Article offers a comprehensive taxonomy of the inherent features that make
See Banking the Unbanked: Exploring Private and Public Efforts to Expand Access to the Financial
System: Hearing Before the H. Comm. on Financial Serv. 117th Cong. (2021) (testimony of Mehrsa
Baradaran).
490

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inmate trust accounts so susceptible to abuse, the categories of problems that
ensue, and the histories that have allowed these systems to take shape.
Put bluntly, prisons can quite feasibly make inmate trust accounts
optional. But the broader goal of this project is to lay the groundwork for a
more ambitious, long-term campaign toward abolishing them altogether
and creating a just and equitable substitute outside of the carceral space.491

491 According to Jamelia Morgan, ”Transformative justice is a community-led process
developed by activists committed to anti-violence and is therefore something the criminal
legal system can simply never provide.” Jamelia Morgan, Responding to Abolitionist Anxieties:
A Roadmap for Legal Analysis, 120 MICH. L. REV. 1199, 1204 (2022).

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