Jailhouse rent; Inmates fight Broward's $2 a day fee for room and board

The saying "nothing in life is free" has taken on new meaning in the Broward County Jail, where inmates have been paying $ 2 a day for room and board for more than a year.

The jail was the first in the state to begin collecting the controversial new per diem fee, which was authorized during the 1996 legislative session. Palm Beach County later introduced a $ 2 fee of its own.

The fee was assessed in Broward for the first time on Aug. 15, 1996, and brought $ 575,000 in revenue its first year. It also brought a class-action suit that is now before the 4th District Court of Appeal in West Palm Beach.

"The idea behind the per diem fee is to get some money back for society, which spends between $ 45 and $ 65 a day to incarcerate each inmate," says acting Sheriff Susan McCampbell, who implemented the plan when she was head of the corrections division. "This is about personal accountability. People have a choice when they commit a crime, and we want to give them another reason to stay out of jail."

Criminal defense attorney Norman Elliott Kent, a Fort Lauderdale solo practitioner who is lead plaintiff counsel in the class-action suit, says the fee isn't about personal responsibility so much as political expediency.

"Jail has always been a warehouse for poor people, and nothing's changed in that regard because of this fee," said Kent, who is handling the case on a pro-bono basis. "This law was a misguided action at the state level, and the county is merely jumping on the political bandwagon by implementing it."

Kent filed the suit Oct. 21, 1996, and won the first round when Circuit Judge Leroy H. Moe granted his request for class-action status. Further action in the case has been postponed, pending the county's appeal of that decision to the 4th DCA. The two sides filed appellate briefs in December and are waiting for oral arguments to be scheduled.

The $ 2 per diem fee and an initial $ 10 processing charge are deducted weekly from each inmate's commissary account. Inmates use the accounts to buy creature comforts such as candy, aspirin, stationery and personal hygiene products.

Kent's legal challenge is three-pronged, arguing that the statute is unconstitutional on its face; that it's being wrongly applied in Broward to inmates who are awaiting trial, not just those who have been convicted; and that the county method for determining who is exempt because of indigency -- the law requires some need-based test -- is wrong.

Kent argues that anyone determined indigent by the courts for purposes of appointing a public defender should be considered indigent for purposes of the fee.

Instead, the county says that any inmate with money in a commissary account can afford the fee.

The sheriff's assistant legal counsel, Patricia Windowmaker of Fort Lauderdale's Whitelock & Williams, says that test is adequate.
She also added that "it's not necessary for us to make a distinction between those inmates that are convicted and those that are not." She said the fee statute is directed at both groups.

The Florida Constitution explicitly forbids the imposition of "costs" on pre-trial defendants, but the sheriff's office and the statute say that what is being charged inmates is a "fee." Kent says "fees" are essentially the same as "costs," and therefore unconstitutional.

In recent weeks, each side has accused the other of unnecessary delay.
Windowmaker says the trial over the statute's constitutionality would already be complete had Kent agreed to sue on behalf of a single plaintiff.

"We told Norm that if the statute were found unconstitutional we'd stop applying it," Windowmaker said. "But we can't get there because he insists on going class action."

Kent says that it is actually the county that is dragging out the case by appealing Moe's class certification decision.

"Obviously I wanted any ruling to have countywide impact," Kent said. "Had I proceeded with only one complainant, it could conceivably have resulted in a ruling that applied only to that inmate."

Several counties have followed Broward's lead on per diem fees, giving the outcome of the suit statewide implications. Leon, Marion, Orange and Manatee counties each are now charging inmates between $ 1 and $ 1.50 a day for room and board, according to Windowmaker.

Many counties also charge co-payments for inmate medical visits under a 1995 statute that was the Legislature's model for the per diem charges that followed.

Broward began charging medical co-payments, ranging from $ 3 to $ 15, in August 1995 in an effort to deter frivolous medical visits. The county spends $ 10.5 million a year on inmate medical care.

The medical fees statute survived a constitutional challenge in Marion County in August when the 5th District Court of Appeal upheld a circuit court ruling favorable to the state.

"Although pretrial detainees are generally entitled to reasonable and adequate nourishment and medical care, it does not follow that prison officials or taxpayers are required to pay for them," wrote Chief Judge Jacqueline R. Griffin.

The per diem statute also permits counties to collect back fees and to place liens on inmates' assets, such as homes and cars, to satisfy them. But Broward has not implemented either provision, partly because tracking negative commissary balances poses programming problems for the sheriff's antiquated computer system.

"We're not doing that now, but if we win this case it's possible that we will in the future," Windowmaker said.

The fees are subordinate to more serious collection requests -- such as those for child support and victim restitution.

McCampbell said she does not believe the fee imposes a hardship.
"If you have the money, you can still get all the HoHos and Twinkies you want after we deduct $ 2 a day," McCampbell said. "If you have nothing, then you don't get debited."

John Tiedeberg, the jail's federal monitor, is leery of the fee plan, but said he has seen no tangible impact thus far on jail conditions. The jail has been under federal supervision since 1977 due to overcrowding.

McCampbell has earmarked Broward's fee revenues for 10 new inmate work crews, which cost about $ 50,000 a year to operate. The county takes in slightly less than that amount every month in per diem fees. The crews typically perform labor such as highway litter collection.

But her spending plans are on hold pending the outcome of the appeal.
Kent associate Russell L. Cormican says the plaintiffs will request summary judgment from Moe if the 4th DCA upholds the ruling.

"The fact remains that the Florida Constitution expressly forbids assessing fees against someone who hasn't been found guilty of a crime," Cormican said. "That's exactly what's happening here, and that's exactly what's happening more and more around the country."

Kent says the fee unfairly punishes the families of poor inmates, many of whom deposit a few dollars each week in commissary accounts for their relatives.

"Let's face it, most people break the law because they don't have money," Kent said. "What we're doing here is really taking money from their families, who give them a few dollars each week to buy necessities. It's not like they're buying Sony Playstations. They're buying stuff like toothpaste."