Pay or Stay: An American (not Dickensian) Practice

by Michele Kennerly

Assistant Professor of Communication Arts and Sciences, Penn State University

“Pay or stay” is the anodyne rhyme sometimes used to describe a practice whereby prison systems incarcerate people who cannot afford to pay fees and fines either they or family members have accrued due to a given corrective process (e.g., cops checking on the whereabouts of children who miss excessive school; a hearing; imprisonment itself). Articles documenting this practice often compare the cells that hold the indigent to a historical antecedent: debtors’ prison. Reference is commonly made to Dickens novels.

Notably, it was in 1842, the year before Dickens published Martin Chuzzlewit and A Christmas Carol, that Pennsylvania outlawed debtors’ prisons.

This year, then, marks 175 years since debtors’ prisons were outlawed in our Commonwealth. Yet they persist de facto if not de jure. And it is not deeper knowledge of Little Dorrit that will help us understand their persistence. Even to acknowledge that poverty is criminalized in the United States is not to arrive at full understanding, but it gets one closer.

For instance, three years ago, Eileen DiNino, a mother of seven children, from Reading, Pennsylvania, was sentenced to prison for two days to “pay off” $2000 in fines resultant from the process public schools initiate when a student misses lots of school. A day into her imprisonment, she was found unresponsive in her cell, and she died shortly thereafter. The prison had not treated her high blood pressure or responded to her calls for help in the night.

To more fuller understand “pay or stay,” one needs to situate it within the long history of the 13th Amendment. Its criminality exemption clause has allowed, again and again, the writers, enforcers, and interpreters of laws to justify deprivations of liberty that disproportionately affect people of color, since, disproportionately, people of color are targeted by police and economically disadvantaged.

Fact-finding underway by the ACLU of Pennsylvania turned up “thousands of cases each year in which Pennsylvanians are jailed for failure to pay court fine and costs. While the ACLU’s investigation is ongoing, it is clear that is many of these cases, the defendant could not have been jailed as punishment for the offense, but they are ending up in jail anyway when they cannot pay the fines and costs.”

Dickens coined lots of words, but not one of them suits this situation.