March 14, 2023 — Press Release

New rule would allow garnishment of up to half of an incarcerated person’s wages and three-quarters of funds sent by family members to cover fines, fees, and restitution

WASHINGTON — Yesterday, advocates for incarcerated people and their loved ones expressed strong opposition to a Proposed Rule from the Bureau of Prisons (the “Bureau”) that would allow the Bureau to seize portions of incarcerated people’s wages and the bulk of the funds that family members send to them to address fines, fees, and restitution. 

The National Consumer Law Center (on behalf of its low-income clients), the Prison Policy Initiative, and Stephen Raher, a policy advocate out of Portland, OR, submitted comments in response to the Bureau’s Proposed Rule regarding the Inmate Financial Responsibility Program (“IFRP”), opposing several of the proposed changes to the regulations on policy and legal grounds.

The Bureau acknowledges that people in its custody require money to pay for basic goods and services. These include medical co-pays; items from the commissary, such as over-the-counter medications and hygiene products; and communications with attorneys and loved ones. Yet the Bureau proposes to garnish 25%-50% of already extremely meager prison wages. The Proposed Rule would also allow the seizure of 75% of deposits from incarcerated people’s family members to pay fines, fees, and restitution that they bear no responsibility for. And the Proposed Rule would eliminate an existing set-aside of $75 for phone calls.

Among other repercussions, advocates charge that the Proposed Rule would harm children—and particularly poor children of color, who disproportionately bear the impact of parental incarceration. “Under the Proposed Rule, a child’s non-incarcerated caregiver must pay $100 to fund $25 worth of communications with the child’s mom or dad—the equivalent of 300% inflation,” said Caroline Cohn, Equal Justice Works Fellow, sponsored by Nike, Inc., at the National Consumer Law Center. “Children who are already experiencing financial and emotional hardship due to their parent’s incarceration would either have even fewer financial resources available for their support or even less parental contact.”

“The Proposed Rule would directly undermine numerous critical objectives of the Biden Administration and existing Bureau policies,” said Cohn. “The Biden Administration has promised to bolster successful reentry, but this rule would erode incarcerated people’s support systems and connections with the outside world and exhaust the financial resources available to people upon their release.” 

Although only a very small portion of the federal prison population has any significant resources to contribute to court debts, the Proposed Rule would sweep broadly, taking 75% of community funds and 25% to 50% of wages. Those outsized penalties would apply not only to the small minority of wealthy incarcerated people but also to the entire federal prison population, which is disproportionately comprised of Black, Latinx, and other people adversely affected by persistent poverty and inequality. 

“President Biden has made advancing racial equity and supporting underprivileged communities a pillar of his administration,” said Mike Wessler of the Prison Policy Initiative. “But the Proposed Rule would disproportionately harm precisely those populations the Biden Administration has ordered the Bureau of Prisons to support through its policies and programs.” 

In addition to its many policy-based failings, the Proposed Rule is legally defective for several reasons. 

“The Bureau lacks authority to seize community resources, which include money from incarcerated people’s family members,” said Stephen Raher, a cooperating attorney with the Leonard Law Group LLC, “The Administrative Procedure Act requires federal agencies to take a ‘hard look’ at data and alternative approaches when making policy decisions as part of a rulemaking–which it failed to do here. The Proposed Rule also is not grounded in applicable law governing collection of legal financial obligations and contravenes peoples’ Fifth Amendment due process rights.”

The Proposed Rule is a “significant regulatory action” under Executive Order 12866, and the groups assert that the Bureau must therefore conduct a regulatory analysis, which it has failed to do.

The comments propose an alternative approach tied to the federal poverty level. In a threshold-based approach, if deposits (from wages or other sources) are below a reasonable, predetermined amount, the Bureau would not garnish any funds for the IFRP. If they exceed this threshold, the Bureau could adopt an approach similar to progressive taxation for seizing excess funds.

“We oppose the Proposed Rule because it is unjustified and inequitable and would harm incarcerated people who lack financial resources and their families,” the groups wrote. “We therefore urge the Bureau to adopt the alternative approaches we describe.”  

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