Memos to Mark: For-profit probation and modern day debtors’ prison
The following is the second in a series of real legislative policy memos written for Congressman Mark Takano by his staff. The series will give you an inside glimpse of what comes across the Congressman’s desk on a daily basis.
To: Congressman Mark Takano
From: Staff
Re: For-profit probation
Date: 8/22/2015 (Editor’s Note: This is when the memo was originally given to Representative Takano)
Background
Probation, a commonly used tool of courts across the country, suspends all or part of a punishment and allows an offender to avoid jail if conditions of probation are met. This could include fines levied by the court. The practice is widely used in misdemeanor cases involving low-level offenses. It is meant to give courts flexibility to fairly deal with people who do not belong behind bars. However, the rise of for-profit companies who monitor and maintain probation cases for courts has led to a system that resembles modern day debtors’ prison.
For Profit Probation
A lack of funds and resources has forced state level courts to shift away from servicing misdemeanor probations to focus on felony cases. Servicing these lower level misdemeanor cases now often falls to county and municipal governments who in turn do not have the budgets or personnel to serve probationers properly. Courts in these localities have turned in significant numbers to for-profit companies to handle their probation assignments. These courts are not only under pressure to self-fund their operations but some are expected to be a revenue stream for the local government.
In this environment, “Offender Funded” probation has become an attractive and lucrative alternative for underfunded, understaffed courts.
For-profit probation companies promise that no taxpayer dollars will be spent to monitor and service probationers. The courts require that as a condition of probation an offender must pay any fees the overseeing company requires while under their supervision. Courts will also issue “pay only” probation where an offender is on probation simply because they cannot pay a fine at the time of their sentencing. This type of probation is issued for offenses that would not warrant jail. However, if an offender is unable to pay the probation company on a schedule or in a manner of their liking they are often threatened with jail recommendations that courts consistently uphold. When people are sent to jail for fines and fees they cannot afford, that is essentially a debtors’ prison.
More on modern day debtors’ prison can be found here.
For-profit probation is meant to mirror probation carried out by a county or municipality. For some local governments, a lack of funds and a pressure to be profitable has driven courts to use for-profit companies who charge offenders for their own probation services.[1] It appears that some courts have begun creating punishments intended solely to collect money.[2] Some of these practices circumvent the prohibition of jailing those who cannot afford to pay court fines.
Major Companies
The two largest companies in this field are Sentinel Offender Services and Judicial Correction Services. Between them, they handle nearly 100,000 probationers referred to them through a network of 275 courts. Sentinel is based in Irvine, California and JCS is incorporated in Delaware. However, these companies are most active throughout the southeastern United States. Along with probation, these companies are contracted to monitor offenders through GPS tracking and administer drug and alcohol screening.
For-profit probation companies insist that they cannot divulge all the courts they do business with or the fees they collect because doing so would harm them in the marketplace. This makes it difficult to determine the full scope of the industry.
Problems With For-Profit Probation
The supervision fees that for profit companies charge to probationers are relatively small, typically $35 to $40 a month while servicing a case.[2] However, this fee structure has a disproportionate impact on the poor. Someone who can afford to pay their mandated court fine in a shorter amount of time simply pays less than someone who must make smaller payments over a longer period. For example, a probationer paying off a $1,000 fine over two months might pay $1,070, the fine plus two months in servicing fees. Alternatively, someone who could only afford $100 a month would pay $1,350 in fines and fees over ten months. In this way, a poorer offender is punished more for simply having less money available each month.
Judges and for-profit companies routinely circumvent the prohibition against jailing someone for a legitimate inability to pay a fine levied by the court. When courts refer their offenders to for-profit companies, it is the company that determines an offender’s ability to pay. The assertions made by companies that probationers are able but unwilling to pay are subjected to little scrutiny. This creates a clear conflict of interest. If the company were to determine that a probationer could not pay, then the case would end at that point and the company could not collect any fees. In addition, according to Human Rights Watch, many companies offer financial incentives for employees based on their ability to collect fees from probationers. This further compounds the conflict of interest created by having a company determine the ability of an offender’s ability to pay.
No probation officer has the authority to jail someone on probation. However, according to interviews conducted by Human Rights Watch, probationers have alleged that the practice of threatening jail time in order to induce payment or partial payment is routine. In addition, probation companies recommend issuance of hundreds of thousands of arrest warrants every year for non-payment of servicing fees.[2] When clients of these companies find themselves behind bars, probation companies pursue family members for payments of fees and fines in order to secure their release.
There is a public cost to for-profit probation companies as well. Jail time induced from the non-payment of a company fee bears a significant cost to the taxpayer. When that jail time originates from a small fine or minor offense the cost to taxpayers is magnified.
Policy Solution
The End of Debtors’ Prison Act of 2016: this bill would punish counties and municipalities who contract with for-profit companies that participate in “pay only” probation cases (Editor’s note: This bill was introduced on 01/11/2016). Money distributed through Edward Byrne Memorial Justice Assistance Grants would be withheld from local governments that work with these companies. In addition, it would require courts to disclose the companies they contract with and the fees those companies collect.
To date, no major federal action has been taken to curb these abuses. The federal government can step in to protect the poor from the unconstitutional exercise. Transparency is also an essential element to solving this problem that extends to both courts and companies. For-profit probation companies claim that the amounts and the courts they collect fees from are industry secrets, but the public has a right to know.
State governments need to impose their own limitations the conflict of interest inherent in companies determining a probationer’s ability to pay court fines. Courts must stop delegating their responsibility to companies or ensure that a disinterested third party decides if someone has an unwillingness or inability to pay their court ordered fine. At the state level, these practices can and should be explicitly outlawed.
[1] Generating New Revenue Streams. Police Chief Magazine. http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display&article_id=2108
[2] Profiting From Probation. Human Rights Watch. http://www.hrw.org/node/122853
