The cost of private probation supervision disproportionately harms the poor, often criminalizing a person’s inability to pay their probation fees and court costs.

(Washington, DC, February 20, 2018) – The cost of private probation supervision disproportionately harms the poor, often criminalizing a person’s inability to pay their probation fees and court costs, Human Rights Watch said in a report released today.

The 142-page report, “‘Set up to Fail’: The Impact of Offender-Funded Private Probation on the Poor,” documents private probation company practices in Florida, Kentucky, Missouri, and Tennessee. These states allow private companies to supervise probation for minor crimes, including misdemeanors and criminal traffic offenses. Individuals pay their probation fees directly to the company. But many courts fail to recognize that when an individual is living in poverty, the fees force them to sacrifice basic needs, such as food, housing, and transportation, to pay the probation company. When an individual cannot afford payments, they can face arrest, extended probation, or even prison.

Figures represent potential outcomes. Actual legal financial obligations will vary based on a number of factors, including the range of probation conditions that carry costs, frequency of drug testing, costs associated with any probation violations, and the level of judge’s discretion in setting fines and fees.

© 2018 Human Rights Watch

“Lack of accountability in offender-funded private probation systems creates many opportunities for abuse,” said Komala Ramachandra, senior business and human rights researcher at Human Rights Watch. “While probation fees and court costs may only be a slight inconvenience for a person who can afford those costs, they can be ruinous for a person living in poverty.”

The report is based on more than 150 interviews with people who have been through the private probation system and their families, judges, lawyers, law enforcement, and private probation company representatives. The research also draws on court records and documents obtained through open records requests.

People interviewed for the report said they felt threatened by the potential consequences if they did not make regular payments for their probation supervision. Others faced similar consequences when they could not afford to pay for court-mandated conditions of probation, such as drug testing, document checks, courses, and treatment.

“It’s frightening and draining, always worrying whether I have enough money, whether there’ll be any more fees, whether I’ll be able to pay my gas bill this month,” said a probationer in Cape Girardeau, Missouri. “And what happens if I don’t have the money to pay them? How much longer will they draw this out? Could they throw me in jail? It starts to spiral to a point that you can’t control.”

When a person was not able to pay their fees, they were often cited for a probation violation, leading to court hearings and arrest warrants. Courts should not punish a probationer for failing to pay fines, fees, or other costs if that person genuinely lacks the ability to pay. But many courts do not engage in any serious analysis of the person’s financial situation. Instead, if a person was not able to pay, judges would extend probation periods or add probation conditions, each increasing the person’s overall criminal justice debt. In some cases, people who could not pay for their probation supervision or associated requirements were sent to jail.

Figures represent potential outcomes. Actual legal financial obligations will vary based on a number of factors, including the range of probation conditions that carry costs, frequency of drug testing, costs associated with any probation violations, and the level of judge’s discretion in setting fines and fees.

© 2018 Human Rights Watch
Human Rights Watch recommended specific measures to address abuses in the private probation system. They include imposing proportional fines and fees that take into account a person’s ability to pay, ensuring that there are no conflicts of interest between the courts and companies, and requiring better training for private probation officers. Human Rights Watch also recommended that state governments adopt more comprehensive legislative protections and oversight systems to end abuses associated with the private probation industry.

Figures represent potential outcomes. Actual legal financial obligations will vary based on a number of factors, including the range of probation conditions that carry costs, frequency of drug testing, costs associated with any probation violations, and the level of judge’s discretion in setting fines and fees.

© 2018 Human Rights Watch

While probation is primarily managed by state governments, the federal government has a role in ensuring these systems comply with national law. The Justice Department had taken steps that began to address burdensome fees and fines in the criminal justice system during the Obama administration. They included an investigation into the impact of excessive fees and fines on policing in Ferguson, Missouri, and a “Dear Colleagues” letter with constitutional guidance to judges on imposing fees and fines on the poor.

Under the Trump administration, the Justice Department has curtailed even these limited initiatives, rescinding the “Dear Colleagues” letter and diverting resources away from the Office for Access to Justice, which worked to ensure access to legal services for all citizens. The Justice Department should reinstate and intensify efforts related to criminal justice fees and fines. That should include in-depth investigation of extortionate fees and fines and incarceration of people who are unable to pay, and lawsuits and consent decrees to ensure compliance with constitutional protections for the poor.

“The justice system should not punish people for being poor,” Ramachandra said. “Instead, the probation system should be used for rehabilitation, supporting people to return to their families, jobs, and lives.”