Furman Revisited In Connecticut
ER Lawyering

Cost of Incarceration Liens

Suppose your client enters a plea of guilty. There are court costs and potential fines associated with the crime to which he pleads. But the court waives fees and costs as the client is indigent. Your client serves his time, is released from prison and, years later, wins a lawsuit for conduct unrelated to his incarceration.

What does he owe the state?

Nothing for court fees and costs. Those were waived. But can he leverage the trial court's waiver into a waiver of the costs of incarceration?

Most states have the right to assert liens on the assets of prisoners for the costs of incarceration. A case taking shape in Connecticut illustrates the problem. Mr. X served a term of imprisonment. The cost of his incarceration was, let's say, $50,000. He recently won a personal injury suit; the jury awarded him $150,000 in damages. The state swooped in to take its share.

My sense is that the court waiver does not have an impact on the costs of incarceration. Although the words spoken from the bench sound like a blanket waiver, they extended only to court fees and costs.

A larger question remains, however: Why aren't defense counsel bargaining for waivers of incarceration costs, too? I've negotiated more pleas than I can recall and have yet to make the effort. Henceforth, I will give it a try.

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