11.5.3.8 Costs of Incarceration

Most courts find jail fees to be nondischargeable in a chapter 7 bankruptcy.³¹⁴ In general, such fees are nondischargeable whether the costs of incarceration are calculated on a flat periodic rate for room and board or assessed on individualized bases—for example, administrative penalties covering costs for an inmate’s failed suicide attempt,³¹⁵ destroyed prison property,³¹⁶ or costs associated with an attempted escape.³¹⁷

However, one court has held that incarceration expenses including room and board, medical expenses, and other miscellaneous costs under a state “pay to stay” statute are dischargeable.³¹⁸ The court found that these incarceration charges owed to the county’s sheriff’s office were not imposed as part of a court order in a criminal case, were not fines, penalties, or forfeitures, and were intended to compensate the county for actual pecuniary loss.

There is an argument that pre-trial incarceration debt should be dischargeable under equal protection principles if the debt was incurred due to indigence rather than culpability. In those circumstances under which bail is set at unreasonable levels, indigent defendants have no choice but to either plead guilty or remain incarcerated until their cases can go to trial. In the latter circumstance, jail fees continue to mount as the defendant waits. In contrast, equally culpable non-indigent defendants who are able to make bail do not incur this cost. This creates a two-tiered system in which costs are automatically substantially higher for indigent defendants who choose to go to trial.