In Legal Terms - July/August 1999

Cost of Incarceration Legislation Eases Burden on Counties
In his article in the last issue of The County Commissioner, Sonny Brasfield made mention of a bill moving through the Legislature which contained a provision to require certain persons housed in the county jail to partially reimburse the county for its expenses. He would not tell you which bill it was, but now that it has become law, I will. Act No. 99-447 (House Bill 26), which amends Code of Alabama 1975, § 30-5-9, mandates incarceration in the county jail for a second and third conviction for violation of a protection order issued in a domestic violence case. Included in the amended language, which takes effect on September 1, 1999, is the following:
Upon conviction, the person shall be required to pay one-third of the cost of incarceration for each day imprisoned in the county jail. The cost shall be determined by the judge and shall be entered as a money judgment against the defendant in favor of the county for which execution shall let. All monies collected for the cost of incarceration shall be deposited into the county general fund earmarked for the administration of the county jail.1

Under this new provision, the sentencing judge will now be required to assess the cost of incarceration and enter a judgment against the defendant for payment of one-third of that cost when convicted under § 30-5-9. The judgment will be in favor of the county, meaning that once it becomes a final judgment (i.e., the time for appeal has run), the county will be able to pursue collection through such means as garnishment or execution on personal property. As with most new laws, it will take some time to get these new procedures put in place. In fact, in an effort to make sure this law is being used, it may be a good idea to share a copy of the Act with your district attorney and judges. Keep in mind that the language in the statute is mandatory - in other words, the judge is required by law to assess these costs.

In addition to this new law, there is an existing provision of Alabama law that requires convicted defendants in misdemeanor cases to pay the cost of incarceration in the county jail unless an undue hardship can be shown. I question whether this law is routinely followed across the state. However, it should be a useful tool for recouping some of the costs of incarceration, and if it is not being applied, counties may want to pursue this with their district attorneys and judges as well.

Code of Alabama 1975, § 14-6-22(a)(1) provides that:
A court shall require a convicted defendant in a misdemeanor case to pay housing, maintenance and medical costs associated with the defendant's incarceration in a county or city jail except as otherwise provided herein. Such costs shall not exceed $20.00 per day that the defendant has been incarcerated plus actual medical expenses incurred on behalf of the defendant. Such costs shall be taxed as costs of court and shall be in addition to any and all other costs of court.

The law includes a provision allowing the defendant to petition the court for remission of these payments if undue hardship is shown to the satisfaction of the judge, and requires that the judge take the financial resources of the defendant into account in determining the amount and method of payment of the costs. However, when the assessment is made, it is taxed as court costs, and the law provides for the collection of the costs in the event of default in payment or payments by the defendant "by any means authorized by law for the enforcement of a judgment." Code of Alabama 1975, § 14-6-22(c).

It is important to keep in mind that this Code section applies only in misdemeanor cases, and only where the defendant is convicted. See, Ex parte Vinson, 615 So.2d 655 (Ala. 1992), where the Supreme Court of Alabama held that an assessment could not be made against a pre-trial detainee convicted on felony charges. However, it should also be noted that, as with the new law discussed above, the assessment provisions in §14-6-22 are mandatory. In an opinion issued to the city clerk of Collinsville, Alabama, the attorney general held that, "The law is directive and mandates that the court require a convicted defendant in a misdemeanor case to pay his costs of incarceration, up to a maximum of $20.00 per day that the defendant has been incarcerated plus actual medical expenses incurred on his behalf". [Emphasis added.] See, AG's Opinion Number 96-251. In other words, unless satisfied that the defendant does not have the financial resources to reimburse the costs of incarceration, the judge does not have the discretion to waive this assessment of costs.

Under § 14-6-22(d), the monies collected for the costs of incarceration of a convicted defendant in a misdemeanor case are to be collected by the clerk of the sentencing court, and paid over to the county (or city) in whose jail the defendant was incarcerated. If you are not receiving any payments, you may want to contact the court handling misdemeanor cases in your county to find out why not. You may also want to inquire whether there are uncollected judgments for costs of incarceration - and whether the court is taking any action to execute on any monies due and unpaid.

As Sonny mentioned in his article, and as we all know much too well, the costs of running the county jail are exorbitant and there is far too little funding to assist the county in meeting its requirements in this area. We need more laws like those discussed in this article to help counties recoup some of their expenses in operating the county jail. However, we also need to be sure that the laws providing financial resources that are in place are utilized to their full extent.

1 This language is very similar to that found in the general bill to provide for reimbursement of jail expenses which was introduced by Representative Bill Fuller during the last Regular Legislative Session. That bill did not pass, but will very likely be reintroduced in a future session.