February 5, 2014

Summary

The United States Supreme Court has ruled that a person sentenced to probation cannot then be incarcerated simply for failing to pay a fine that they genuinely cannot afford. Yet many misdemeanor courts routinely jail probationers who say they cannot afford to pay what they owe—and they do so in reliance on the assurances of for-profit companies with a financial stake in every single one of those cases.

Every year, US courts sentence several hundred thousand people to probation and place them under the supervision of for-profit companies for months or years at a time. They then require probationers to pay these companies for their services. Many of these offenders are only guilty of minor traffic violations like speeding or driving without proof of insurance. Others have shoplifted, been cited for public drunkenness, or committed other misdemeanor crimes. Many of these offenses carry no real threat of jail time in and of themselves, yet each month, courts issue thousands of arrest warrants for offenders who fail to make adequate payments towards fines and probation company fees.

This report, based largely on more than 75 interviews conducted with people in the states of Alabama, Georgia, and Mississippi during the second half of 2013, describes patterns of abuse and financial hardship inflicted by the “offender-funded” model of privatized probation that prevails in well over 1,000 courts across the US. It shows how some company probation officers behave like abusive debt collectors. It explains how some courts and probation companies combine to jail offenders who fall behind on payments they cannot afford to make, in spite of clear legal protections meant to prohibit this. It also argues that the fee structure of offender-funded probation is inherently discriminatory against poor offenders, and imposes the greatest financial burden on those who are least able to afford to pay. In fact, the business of many private probation companies is built largely on the willingness of courts to discriminate against poor offenders who can only afford to pay their fines in installments over time.

The problems described in this report are not a consequence of probation privatization per se. Rather, they arise because public officials allow probation companies to profit by extracting fees directly from probationers, and then fail to exercise the kind of oversight needed to protect probationers from abusive and extortionate practices. All too often, offenders on private probation are threatened with jail for failing to pay probation fees they simply cannot afford, and some spend time behind bars. This report tells many of their stories.

In Georgia, Thomas Barrett pled guilty to stealing a can of beer from a convenience store and was fined US$200. He was ultimately jailed for failing to pay over a thousand dollars in fees to his probation company, even though his entire income—money he earned by selling his own blood plasma—was less than what he was being charged in monthly probation fees.

In Mississippi, a middle-aged woman was fined $377 for driving without a valid license. Months later, she called the court in tears because her company probation officer was threatening to have her jailed over $500 in unpaid supervision fees she said she could not afford. At the time she was trying to make ends meet working the night shift at a local gas station. Court officials told Human Rights Watch that she had already paid off her entire fine to the court, but still owed money to her probation company—and that the court had in no way authorized the probation company to threaten her with arrest.

In Alabama, a judge told Elvis Mann that he would go to jail unless he came up with $500 by the end of the day to pay part of what he owed in fines and probation company fees. His wife Rita spent an afternoon frantically begging and borrowing money from members of the couple’s church congregation to keep her husband from going to jail that very day. He had already been on probation for several years and had paid thousands of dollars in fines and probation company fees, but still owed thousands more.

Traditionally, courts use probation to offer a criminal offender conditional relief from a potential jail sentence. If the offender meets regularly with a probation officer and complies with court-mandated benchmarks of good behavior for a fixed period of time, they escape a harsher sentence the court would otherwise impose. Courts in some US states charge offenders fees to help defray the costs of running a probation service. This is called “offender-funded” probation.

Probation companies offer courts, counties, and municipalities a deal that sounds too good to be true—they will offer probation services in misdemeanor cases without asking for a single dime of public revenue. All they ask in return is the right to collect fees from the probationers they supervise, and that courts make probationers’ freedom contingent on paying those fees. Those fees make up most probation companies’ entire stream of revenue and profits.

Some local officials turn to probation companies because they are facing genuine financial hardship. An increasing number of counties and municipalities depend on local courts as sources of revenue by trying to fund through misdemeanor fines what they cannot or will not fund through taxation. But the same courts often argue that they cannot afford to hire clerks or other personnel to track whether offenders on long-term payment plans are paying what they owe in fines.

Many courts have repurposed probation into a debt collection tool and are primarily interested in the services of probation companies as a means towards that end. In what is euphemistically referred to as “pay only” probation, people are sentenced to probation for just one reason: they don’t have money and they need time to pay down their fines and court costs. Pay only probation is an extremely muscular form of debt collection masquerading as probation supervision, with all costs billed to the debtor. It is essentially a legal fiction and it is the cornerstone of many probation companies’ business.

Offenders on pay only probation could wash their hands of the criminal justice system on the day of their court appearance if only they had the money on hand to pay their fines and court costs immediately and in full. Because they can’t, they are put on probation for periods of up to several years while they gradually pay down their debts to the court. Each month, they are charged an additional “supervision fee” by their probation company, whose only task is to collect their money and monitor whether they are keeping up with scheduled payments.

The central problem with offender-funded, pay only probation is this: the longer it takes offenders to pay off their debts, the longer they remain on probation and the more they pay in supervision fees. In other words, the poorer a person is the more they ultimately pay and the longer they have to live with the threat of possible incarceration hanging over their heads. Some low-income offenders end up paying more in fees to their probation company than they were sentenced to pay in fines to begin with. Those fees are costs an offender of greater economic means could avoid altogether.

Most courts do not even track and do not know how much their probation companies collect in fees from the probationers they assign to them. Companies treat those figures as a trade secret and refuse to publish them. Human Rights Watch estimates that in Georgia alone, probation companies take in at least $40 million in revenues from fees they charge to probationers.

In other cases, offenders are on private probation where a court believes the offender requires supervision and imposes substantive conditions of probation. Arguments rage as to whether it is appropriate to privatize probation at all. But in these cases, at least the sentence of probation itself is undoubtedly legitimate as there are clear and compelling policy reasons for imposing it apart from inability to pay.

Human Rights Watch takes no position on the broader issue of privatization—and some publicly run probation programs have seen their fair share of abuses. But government oversight and transparency are especially crucial where private companies are hired to provide probation services. The absence of that oversight has given rise to serious allegations of abusive practices leveled against leading probation firms like Sentinel Offender Services and Judicial Correction Services.

Many probation company officials argue that whether accurate or not, allegations of abusive behavior are inappropriately laid at their doorstep. They contend that all coercive power lies with the courts and that their employees do nothing more than faithfully execute the commands of the judges they work with. This is all true in theory, and a large share of the blame for all of the problems described in this report does lie squarely with the courts. But it is also true that the day-to-day reality of privatized probation sees many courts delegate a great deal of responsibility, discretion and coercive power—sometimes inappropriately—to their probation companies. And there is little meaningful government oversight of the industry in most states where it exists.

In the 1983 case Bearden v. Georgia, the US Supreme Court ruled that a probationer cannot have their probation revoked and be jailed simply for failing to pay a fine if they truly cannot afford to pay it. But many courts do not bother to make any determination as to whether an offender is able to pay the fines, court costs and probation fees they have been sentenced to. This problem is compounded by the fact that many misdemeanor offenders have no legal representation, are broadly unaware of their rights and see their cases disposed of by the court in just one or two minutes.

Instead of taking it on themselves, many courts delegate the task of determining whether an offender possesses the financial means to pay their fines and probation fees to a probation officer. When that probation officer is the employee of a private company, this creates a direct conflict of interest. A probation company’s revenues are entirely derived from the fees probationers pay them, so waiving those fees negatively impacts companies’ financial bottom line. Companies’ financial interests are often best served by using the threat of imprisonment to squeeze probationers and their families as hard as possible to pay as much as they can, no matter how severe a hardship this imposes. It is by no means the case that all company probation officers engage in such practices, but financial incentives push them in that direction. They are exactly the wrong people to task with determining whether an offender is able to pay.

This report includes stories of probationers who say their company probation officers responded with overt hostility and threats when they attempted to explain that they could not afford to keep up with payments. In Augusta, Georgia numerous former probationers accuse Sentinel Offender Services of ignoring their inability to pay hundreds and even thousands of dollars in company fees. Probationers allege that company employees instead squeezed them as hard as they could for as much as they could get before turning to the courts to secure their arrest when they stopped paying.

Just as troubling, many judges ask probation companies rather than their own clerks to prepare arrest warrants for probationers whom the companies allege have violated the terms of their probation. Those warrants require a judge’s signature but some judges do not bother to inquire into the facts around a probationer’s alleged violation. One judge acknowledged to Human Rights Watch that he does not even have time to scrutinize warrants and other company-prepared orders before signing them.

Abuses can and do flow from such de facto delegations of power to probation companies. Human Rights Watch interviewed one probation officer with a medium-sized Georgia firm who explained how she regularly obtains the arrest of offenders who fall behind on their payments. She then approaches their families to negotiate for what she calls “good faith money”—a partial payment on the offender’s arrears—in order to secure the person’s release. She tells family members quite bluntly that it is up to them whether their son, daughter or spouse comes home that night or spends the week in jail awaiting a probation revocation hearing that could land him or her behind bars for weeks or months. Some judges may condone such practices. Others may simply be asleep at the wheel.

Leading officials with Judicial Correction Services and Sentinel Offender Services—the two large probation companies that feature most prominently in this report—expressed zero tolerance for the alleged abuses described in this report. Yet some of the most serious allegations documented by Human Rights Watch involve their employees.

Probation companies have a clear responsibility to prevent abuse by their employees and to remedy any abuses that do occur. But the responsibility for all of the abusive practices described in this report lies just as much with courts and other public officials as it does with any probation company. Too often, courts that work with private probation companies exercise no meaningful oversight over their activities. And some officials may be tempted to judge their probation companies exclusively by the size of the checks they cut to the court rather than on whether they respect the fundamental rights of all concerned.

Human Rights Watch believes that the patterns of abuse described in this report are inevitable without strong government oversight of probation companies. It lays out recommendations on how courts and state governments as well as probation companies themselves can better live up to their key responsibilities. Fundamentally, it also argues that public officials must accept that living up to their oversight responsibilities means dedicating public resources to that task and not viewing probation companies as a cost-free source of cash.