A Modern-Day Debtors' Prison? Judges Push Back Against the South's Privatization Wave

This story was originally published in YES! Magazine. Republished by Truthout.org. 

Kathleen Hucks was almost a model parolee.

In 2006 she was convicted of driving under the influence, possession of marijuana, and driving with a suspended license in Columbia County, Alabama. She successfully completed her probation and paid all of her court-issued fines.

But Hucks failed to pay all of the additional supervision fees charged by the private probation company supervising her case. Unaware of the oversight, she moved to Richmond County, Georgia. On Labor Day weekend—nearly six years later—a police officer asked for identification.

"I was out walking my dogs when an officer came up to me asking who I was," she said. After running her name through the system, he told her that there was a warrant out for her arrest—a hold on her back in Alabama.

"I kept telling the officer, 'I'm not on probation,'" said Hucks, who lives with her husband in a trailer in the town of Hephzibah, deep in the rural heartland of Georgia. "But he said, 'Ma'am, I have to take you in. It's showing up on here that you're in violation of probation.'"

Because she had failed to pay the additional private probation fees, an arrest warrant had been issued in 2010—unbeknownst to Hucks. "What they did was reinstate my probation without the judge's signature," she said. This, despite the company's ability to collect on the debt having expired when her original court ordered probation ended.

Still weak from a bout of pneumonia—she had only been released from hospital the day prior—Hucks was taken to jail. "The first day I arrived in jail, they made me take a freezing cold shower," she said. "When you take a shower, there's not supposed to be a male officer in there. But there I am in a cold shower stark naked, and a male officer's in there."

Twenty days later, Hucks was finally released after Richmond County Superior Court Judge Daniel Craig ruled that she had been locked up illegally.

According to Hucks, Judge Craig told Sentinel Offender Services, the private probation company, "Look here, I'm going to tell you right now: you don't come into my court room acting like it's McDonald's or Burger King. You don't get it your way."

"And the court room laughed a little bit," she added.

Hucks' story is common in Georgia and other states where private probation companies are used to collect outstanding fines, debts, and court costs in misdemeanor cases. Driven by profit, some private probation companies place the nation's very poorest on a debt cycle that sends offenders to jail for non-payment of fines and fees for minor offenses. Critics have been calling this a violation of a 1983 U.S.Supreme Court ruling making it illegal to jail the indigent simply because they're too poor to pay their court fines.

Ordinarily, private probation works like this: When offenders convicted of a misdemeanor—a speeding ticket, for example, or driving under the influence—are unable to cover the fine in one swoop, they're put on "private probation." They make payments on their fine through a private probation company that also charges the offender a variety of its own fees, covering things like electronic monitoring. The most common are monthly supervision fees, an administrative charge added to fines and court costs, typically in the region of $35.

Pushback against some of the worst practices in private probation is sporadic but growing. In September, Georgia's Supreme Court is slated to hear an appeal of Judge Craig's ruling that extending private probation sentences beyond their original date was against the law (as was the use of electronic monitoring in probation cases). Some believe the Supreme Court's ruling has the potential to fundamentally shape the way in which private probation companies operate in Georgia.

Elsewhere, alternative solutions have already been found—like in Athens-Clark County, Georgia, where a government probation department that operates independently of taxpayers' coffers was brought in to replace a broken private probation system.

Nevertheless, critics of private probation continue to draw parallels between problems in that industry and those associated with the broader privatization of the nation's entire judicial system.

Profiting from poverty

For most cash-starved municipalities unable to cope with the sheer volume of cases passing through their courts, private probation companies that operate at no alleged cost to courts offer an appealing alternative to publicly funded probation services—especially when companies like JCS say they successfully complete more than 70 percent of their probation caseload. Without supervision, JCS says the success rate is under 35 percent.

Private probation is also a lucrative business. According to a Human Rights Watch report released earlier this year, companies in Georgia alone took in approximately $40 million during 2013. Their financial bedrock is built upon supervision fees. An offender who can afford to pay only $85 per month on a $1,200 fine will leave probation after 24 months having paid a total of $2,040—$840 of which goes to supervision fees.

For offenders who can barely scrape together a living, many can expect to pay fees well after their court-ordered probation period has expired. As the report highlights, "To many outside observers, a $35 monthly supervision fee might sound trivial. [But] many probationers are only on probation to begin with because they could not come up with a few hundred dollars to pay off their fines immediately at sentencing."

Among the stories that litter the report are those of people, most of whom live well below the federal poverty line, who rack up jail time as a result of being unable to keep up with their monthly payments.

Over a period of seven years, Elvis Mann, from Childersburg, Alabama, had been diligently paying off nearly $9,000 in fines and accumulated fees stemming from two traffic violations. Mann, whose monthly income consists of $800 in disability benefits, still had $2,400 left to pay, but decided to stop making the payments through sheer disillusionment.

Summoned to court by JCS, the judge ordered that he pay $500 before the end of the day to avoid prison. After going around to churches and friends with cap in hand, Mann's wife only just managed to scrape the money together.

The report similarly shines a stark light on some of the more abusive tactics private probation officers use to collect fees, painting some agencies as glorified debt collectors. The report describes how "in some cases, company probation officers have courts jail offenders in order to coerce their families into paying some of what they owe in exchange for their freedom."

Hot on the heels of the Human Rights Watch report came another report, from the Georgia Department of Audits and Accounts Performance Audit Division. Equally as critical of private probation services, this report finds "several case management issues, many resulting from a lack of clear written policies and procedures to guide the actions of probation officers."

"It's kind of a free-for-all at the moment, and that's led to some of the worst excesses in the industry," said Chris Albin-Lackey, a senior researcher at Human Rights Watch and author of that organization's report. He believes the current private probation model is fundamentally flawed on two levels: a lack of meaningful state oversight of private probation companies; and second, limited understanding of what courts can do to monitor and reign in when necessary the behavior of private probation companies.

Policy shifts in the judges' courts

Albin-Lackey pointed, however, to a number of instances where the fallout from higher-level court rulings had trickled down into local municipalities. A particular standout is Judge Craig's 2013 ruling that restricts the use of electronic monitoring for misdemeanor probationers in Richmond County, as well as prohibiting the extension of a misdemeanor sentence beyond the original sentence's expiration date. Judge Craig has stood behind his ruling, despite stirring dissent among other Richmond County State Court Judges.

High-profile rulings by the likes of Judges Craig and Harrington could and should prompt other judges to rule on the unconstitutionality of sending the very poorest to jail for their inability to pay court costs.
Earlier this month, U.S. District Judge Mark Fuller issued an injunction that blocked the City of Montgomery in Alabama from collecting further money from three indigent defendants who had been jailed for non-payment of accumulated traffic fines and fees totaling thousands of dollars.

In 2012, Shelby County Circuit Court Judge Hub Harrington issued a ruling on the Burdette vs. Town of Harpersville case, finding that "a more apt description of the Harpersville Municipal Court practices is that of a judicially sanctioned extortion racket." Judge Harrington's decision effectively prompted the Harpersville Town Council to later vote to abolish the court and transfer all cases to the county level.

And the ink is still wet on Georgia Governor Nathan Deal's veto of a state bill that would have given private probation companies in Georgia greater autonomy and less regulatory oversight.

According to Jack Long, an Augusta-based attorney, high-profile rulings by the likes of Judges Craig and Harrington could and should prompt other judges to rule on the unconstitutionality of sending the very poorest to jail for their inability to pay court costs.

"If the local governing authority or the judges will wake up and say this is bad policy, it could change automatically—and the only way they will wake up is to keep pointing out and make widespread just how bad the situation has got," said Long, who added that in Georgia, the local government has to seek approval by the chief judge of that court in order to use a private probation company.

What's more, rather than operating at no expense to the taxpayer, private probation companies end up costing the public each time they send an offender to jail, Long said.

"If other judges and governments would require financial disclosures by private, for-profit probation companies, they would see that they are badly used, and the public is paying," he said.

All eyes on Georgia

In September, Long is set to go before Georgia's Supreme Court as the lead attorney in the lawsuit against Sentinel—a lawsuit involving 13 separate cases, including Hucks'. And he believes the Court's ruling could have widespread implications on the private probation industry as a whole, either way it rules.

"I think the eyes of the nation will be on Georgia and how we decide this issue," said Long. "If the Georgia Supreme Court doesn't decide the case properly, it's going to be a problem for the rest of the nation."

"I think the Georgia Supreme Court knows that," he added. "I think they will spend a lot of time looking into this."

If the Court's ruling favors Sentinel, warned Long, it will act as an invitation for the private probation industry to expand into other states throughout the country.

"If we do not get a policy ruling from the Georgia Supreme Court, then that will basically feed the animal, and they will try to export this to a conglomeration of other states," Long said. "It is just so profitable, and the private for-profit companies make so much money that, if this is declared to be legal, it is bound to expand."

Sarah Geraghty, senior attorney of the Southern Center for Human Rights, is more circumspect about the wider ramifications of the Georgia Supreme Court ruling.

"It depends on the scope or how narrowly the court decides to rule on that case," she said. "They're looking at narrow issues and broad issues, and the broad issue is whether in Georgia, the constitution allows the use of private probation companies at all."

While Geraghty questions the ethics of using profit-driven companies to operate the nation's probation services, she believes that what should drive the push for regulatory reform in the industry should be centered around the lack of transparency in the current system (an example is that in Georgia, all records of private probation companies are by state statute a secret).

"There needs to be a lot more transparency so that members of the public and the media have access to information that enable us to determine whether these companies are providing a valuable service, or whether there are problems in the division," Geraghty said.

Probation as rehabilitation

Certain municipalities have already eschewed the use of private probation firms in favor of a return to their own government-run departments. Of those, Athens-Clarke County has proven how a government-run probation service can operate financially independent of tax-dollar support.

"Rehabilitation isn't a dirty word for us, but neither is enforcement."
In 2007, a number of Athens-Clark County judges expressed concern that the private probation firms working in the area were more concerned with profits than successfully assisting offenders through probation—sentiments confirmed by a state audit that showed how 28 percent of one firms' clients violated the terms of their probation.

In September of 2008, an in-house probation service was brought in to replace private probation. Within a year, fines collected were up $50,000 a month, while the number of community service hours metered out were up almost tenfold.

"We're very self-sufficient," said Dale Allen, chief probation officer for the Athens-Clarke County Probation Services. "As a matter of fact, last year we more than paid for ourselves. My numbers are open to everybody."

Allen estimates that in 2013 his department brought in $1.07 million in revenue while spending just $1.01.

He said that while his department does charge probation fees to cover operating costs, as a safeguard in minor offenses, like traffic tickets, it collects only one month's probation fee. He added that in all cases, he and his officers will look at an individual's financial standing as to whether they can afford to pay the fee or not, and look at alternatives to payments when they can't.

"I've never had judges or anyone from the government tell me that I've got to collect more fees," said Allen. "We charge probation fees, but we use common sense and we don't put people in prison for money. Money isn't what drives us."

"Probation is by its definition a second chance."
Allen said his department approaches probation with a "holistic" attitude: "Rehabilitation isn't a dirty word for us, but neither is enforcement. Our whole goal is to successfully get you through probation."

While Allen is cautious about the ability of smaller municipalities with tighter budgets than Athens-Clark County to replicate what has been achieved there, he believes their in-house model has the potential to be serviceable nationwide.

"This model works for us, and I think you've got to start from the beginning and ask yourself: what's the goal of probation?" he said. "Is it to punish, or to give second chance? And probation is by its definition a second chance."

Privatization a poisoned chalice

Some see the problems that have emerged in the South as a consequence of private probation as exemplifying broader issues surrounding the privatization of the nation's judicial system.

With approximately one out of 31 Americans currently under correctional supervision, the judicial system has been stretched to snapping point.
"As more governments are cash strapped, we are seeing more and more situations where private companies are conducting governmental duties, and it all comes down to incentives," said Lauren Brook-Eisen, counsel in the Brennan Center's Justice Program.

"You have private companies that have a profit motive involved, and I think the most important thing when looking at something like private probation is the motive and profit structure," she added.

Brook-Eisen said that with 2.3 million people currently in prison or jails in this country, and with approximately one out of 31 Americans currently under correctional supervision, the judicial system has been stretched to snapping point. And while the temptation to privatize might seem like a tempting quick-fix, the long-term ramifications are all too often a poisoned chalice to those at the very bottom rungs of the income ladder.

"It's difficult because our nation's correctional population has grown so large, municipal and state governments don't always have the capacity to provide adequate services and privatization is a natural outgrowth," said Brooke-Eisen. "The worry, however, is when incentives are not aligned, such as the profit motive in private probation."

As for Hucks, she said that she's keen to share her story and bring attention to the issue (watch her story below in Brave New Films' documentary, To Prison for Poverty). But what she said has brought her the greatest satisfaction is knowing that her lawsuit has played a part in placing a hold on the number of misdemeanor offenders going to jail through non-payment of fines and fees in Richmond County.

"A couple of police officers I know told me: 'Boy Kathy, you've really been messing things up,'" she said. "And I go, 'why's that?' And they go, 'because of your lawsuit, we can't arrest people for non-payment on their probation.'

"And that's ever since this [lawsuit] started," Hucks added. "And now, the most important thing for me is that I just want to see this through to the end—with the right ending, of course."

This article was produced in collaboration with Brave New Films.