The Private Probation Problem Is Worse Than Anyone Thought

A new Human Rights Watch report reveals the extent of the damage done by private probation companies and highlights the ways in which public officials have enabled the practice.
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Two weeks ago, here at The Atlantic, I wrote about how the private probation industry in Georgia has morphed the justice system there into a form of debtors' prison. The essence of the story, deeply reported first by the Atlanta Journal-Constitution, is that the industry is based upon the incentive to charge as many people as much as possible to allow them to avoid jail. The result, predictably, is that the people least able to pay their fines are the ones preyed upon the most.

Today, the folks at Human Rights Watch issue a trenchant report, titled "Profiting from Probation: America's 'Offender-Funded Probation Industry," that details just how pervasive this problem is. It's not just that these companies are engaged in predatory behavior, the report tells us, it's that public officials have abdicated their obligations to their constituents to protect them from the worst of these practices. Here's one key passage from this must-read work:

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.

The perils of private probation isn't a bigger national story, I reckon, because it does not impact the rich and powerful nearly as much as it impacts the poor and powerless. The constituency most impacted by this retro approach is the least capable of exercising the political power required to change it. In this sense, the story is remarkably similar to the story of the nation's shameful and lingering failure to provide indigent defendants with the right to counsel guaranteed to them in Gideon v. Wainwright. Here is more from the HRW report:

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.

The problems raised by these arrangements aren't confined to the South. Forms of these practices are in place in Montana, Utah, Michigan, and Missouri as well. And it's not as if the officials making deals with these private companies can claim anymore that they are unaware of the consequences of these programs upon their constituents. In fact, by outsourcing these collection efforts, by unshackling them from the chains of "state action" and then failing to adequately oversee them, officials in these jurisdictions are engaging in affirmatively hostile acts toward their poorest constituents. More from the HRW report:

Many courts have re-purposed 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.

After years of chaos and heartbreak, the nation's judges are only now beginning to catch on to the significant legal and constitutional questions raised by these practices. (Another form of this phenomenon is represented by the nationwide push to impose civil forfeiture on citizens, a story chronicled so well last summer by Sarah Stillman in The New Yorker.) But judicial remedies will be a long time in coming, especially in those places where state officials are nudged in the opposite direction by probation industry lobbyists. This is a national scandal. It merits national attention. And HRW deserves credit for saying so.

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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