Hamilton County's practice of charging inmates a fee to stay in its jails may be unconstitutional.

        U.S. District Judge S. Arthur Spiegel warned county officials Friday that the “pay to stay” policy may violate the rights of inmates.

        The judge also said the Hamilton County case could challenge the Ohio law that allows similar “pay to stay” policies.

        Judge Spiegel described his ruling as a preliminary finding that could change before he makes a final decision.

        But if the preliminary finding stands, Hamilton County could be forced to refund up to $1 million that has been collected from inmates.

        The judge issued his findings Friday when he denied the county's request to dismiss a lawsuit filed by a former inmate who was forced to pay a fee.

        The judge's decision means the case will proceed to trial, unless the two sides settle out of court.

        The former inmate, Anthony Allen, was arrested last year in Cincinnati after a police officer did a computer check of his license plate and found an outstanding warrant. Mr. Allen was released from jail 12 hours later after police realized the computer entry was wrong.

        But the Bond Hill man never got back the $30 deputies confiscated as his pay to stay fee.

        His lawyer, Robert Newman, filed a class action lawsuit claiming the county policy was unconstitutional. The problem, Mr. Newman said, is that county officials charge the fee before they know whether the inmates are guilty.

        Mr. Newman said Judge Spiegel's ruling suggests the county policy is in trouble.

        “The handwriting is on the wall,” Mr. Newman said. “This system is going to have to go.”

        County lawyers have argued the policy does not penalize the innocent because anyone who is not convicted can get a refund. Mr. Newman said that's not good enough.

        “You can only take money (from an inmate) if they are found guilty,” Mr. Newman said.

        Sheriff Simon Leis, who runs the jails, declined comment. Prosecutor Mike Allen, whose office is defending the sheriff, said the state law allowing pay to stay fees is constitutional.

        Both sides in the case agree it is the first of its kind in Ohio, and possibly in the nation.

        Dozens of cities and counties levy similar fees.

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