by David M. Reutter and Alex Friedmann

Defendants who are placed on probation and ordered to pay a growing array of fines and fees levied by local governments facing budget deficits, combined with additional fees charged by private companies hired to provide probation services, are increasingly being squeezed into burdensome debt and, all too frequently, jail.

“With so many towns economically strapped, there is growing pressure on the courts to bring in money rather than mete out justice,” said Lisa W. Borden, a partner with the Birmingham, Alabama law firm of Baker, Donelson, Bearman, Caldwell & Berkowitz. “The companies they hire are aggressive. Those arrested are not told about the right to counsel or asked whether they are indigent or offered an alternative to fines and jail. There are real constitutional issues at stake.”

Controversy: Probation for Profit

The experiences of two Alabama residents exemplify the real costs faced by those subjected to criminal justice policies designed to balance budgets and generate profit. Gina Kay Ray, 31, received a $179 speeding ticket in 2009; her license was revoked for failure to appear in court, which she said occurred because the ticket had the wrong date.

Thus, the next time she was pulled over she was driving without a license. Her court fees totaled over $1,500 and her case was turned over to Judicial Correction Services, Inc. (JCS), a private probation company. Unable to pay, she landed in jail – and to add insult to injury, she was charged for each day she spent behind bars. Ray, who is unemployed, has been jailed three times totaling 40 days. She still owes $3,170 in fees and fines, mostly to JCS.

Another Alabama citizen, Richard Earl Garrett, can empathize. A former United States Steel Corp. employee who is out of work and suffers from medical problems, Garrett has spent 24 months in jail and owes $10,000 for traffic and driver’s license violations over the past decade. His case also was handled by JCS.

These are not isolated incidents; JCS provides probation services to more than 100 Alabama courts, as well as court systems in Georgia, Florida and Mississippi.

Georgia has extensive experience with private probation companies. With around 40 for-profit probation services operating in over 640 courts statewide, impoverished defendants live in fear of being jailed due to their inability to pay fines or fees. [See: PLN, June 2010, p.22].

The rise of private probation companies in the Peach State can be traced to a corruption scandal involving former Georgia parole board chairman (and former director of the state’s prison system) Bobby K. Whitworth. While serving in public office, Whitworth received $75,000 from Detention Management Services (DMS) – a private probation firm – to draft and lobby for a 2000 bill, SB 474, that drastically expanded privatized probation services by shifting misdemeanor probation supervision from the Department of Corrections to individual counties.

A Georgia statute, O.C.G.A. § 42-8-100(g)(1), specifically authorizes counties to contract with private companies that provide probation services.

Charged with abusing his office, Whitworth was convicted in 2003 and sentenced to six months in jail, 100 hours of community service, a $50,000 fine and, ironically, 4½ years on probation. [See: PLN, April 2006, p.10; March 2003, p.1]. DMS was later acquired by another private probation company, Sentinel Offender Services, LLC.

A July 2, 2012 article in The New York Times highlighted the experience of one Georgia resident whose case was assigned to a private probation company.

Hills McGee pleaded no contest to two misdemeanors in October 2008. Despite the fact that McGee lived on a monthly income of $243 in veteran’s benefits, the court assessed a $270 fine and placed him on two years’ probation with Sentinel Offender Services. The company charged him a $15 enrollment fee and $39 in monthly fees, which increased his debt to over $750 during the first year. Unable to pay, McGee, 53, was eventually jailed.

Stephen B. Bright, president of the Southern Center for Human Rights, said courts are increasingly using fines and fees “for such things as the retirement funds for various court officials, law enforcement functions such as police training and crime laboratories, victim assistance programs and even the court’s computer system.” As a result, he said, “we end up balancing the budget on the backs of the poorest people in our society.”

The Southern Center for Human Rights issued a report in July 2008, “Profiting from the Poor,” that examined private probation services in Georgia and found that such services lead to unequal justice for destitute defendants.

“The privatization of misdemeanor probation has placed unprecedented law enforcement authority in the hands of for-profit companies that act essentially as collection agencies,” the report stated. “These companies, focused on profit rather than public safety or rehabilitation, are not designed to supervise people or connect them to services and jobs. Rather, they charge exorbitant monthly fees and use the threat of imprisonment and a variety of bullying tactics to squeeze money out of the men and women under their supervision.”

A 2010 study by the Brennan Center for Justice examined fee structures in the 15 states with the largest prison populations. “Many states are imposing new and often onerous ‘user fees’ on individuals with criminal convictions. Yet far from being easy, these fees impose severe – and often hidden – costs on communities, taxpayers, and indigent people convicted of crimes. They create new paths to prison for those unable to pay their debts and make it harder to find employment and housing as well as to meet child support obligations,” the Brennan Center wrote. [See: PLN, May 2011, p.40].

“Although debtors’ prison is illegal in all states, reincarcerating individuals for failure to pay debt is, in fact, common in some,” the study found. [See, e.g.: PLN, Nov. 2013, p.20; July 2011, p.40].

In an interview with The New York Times, J. Scott Vowell, then presiding judge of Alabama’s 10th Judicial Circuit, said the state’s legislature has pressured courts to generate revenue through the collection of fines and fees.

That issue was highlighted in a 2011-2012 policy paper, “Courts are Not Revenue Centers,” released by the nonpartisan Conference of State Court Administrators. With respect to traffic violations, the paper noted, “court leaders face the greatest challenge in ensuring that fines, fees, and surcharges are not simply an alternative form of taxation.”

Litigation Against Private Probation Companies

An increasing number of lawsuits are challenging abuses by private probation companies, with mixed results.

“The Supreme Court has made clear that it is unconstitutional to jail people just because they can’t pay a fine,” said William M. Dawson, a Birmingham attorney who has sued JCS and local authorities in the town of Harpersville, Alabama on behalf of Richard Garrett and several other plaintiffs.

The suit alleges that JCS does not discuss alternatives to fines or jail and that its training manual “is devoid of any discussion of indigency or waiver of fees” for poor defendants, who have been harassed by the company and sometimes arrested and jailed for failure to pay.

On July 11, 2012, Shelby County Circuit Court Judge Hub Harrington entered an order in the case that essentially took control over the Harpersville Municipal Court due to an “institutional, egregious and undisputed pattern and practice of Constitutional and statutory violations,” which he wrote “could reasonably be characterized as the operation of a debtors’ prison” and constituted a “judicially sanctioned extortion racket.”

Judge Harrington found that defendants were placed on probation without an adjudication by the court or sentencing order; placed on probation with JCS only after they were unable to pay all fines and costs assessed on the day of trial; incarcerated for probation violations, including for failure to pay fees, without an adjudication by the court or sentencing order; incarcerated for failure to appear in court after being ordered to do so by JCS; placed on “extended” probation for years beyond the statutory maximum; and charged “unconscionable fines and fees.”

On August 8, 2012, the Harpersville Town Council voted to abolish the municipal court, with all cases to be transferred to the county district court.

The class-action lawsuit remains pending on the issue of damages against the town and JCS. See: Burdette v. Town of Harpersville, Circuit Court for Shelby County (AL), Case No. CV 2010-900183.

Dawson also represents Gina Ray in a federal class-action suit filed against JCS and the city of Childersburg, Alabama. The lawsuit alleges that Ray and another plaintiff, Deuante T. Jews, were charged illegal fees and jailed when they were unable to pay.

According to the complaint, “should an individual fail to pay to the satisfaction of JCS, these defendants will revoke probation, impose additional fines and costs and incarcerate the individual and/or impose unreasonable bond requirements, without conducting delinquency or probation hearings and without making any findings, much less any determination of indigency before taking such punitive action.”

An attorney representing JCS claimed the suit contained “ridiculous allegations, which are patently false.” The case remains pending. See: Ray v. Judicial Corrections Services, U.S.D.C. (N.D. Ala.), Case No. 2:12-cv-02819-RDP.

“We hear a lot of ‘I can’t pay the fee.’ It is not our job to figure that out,” said Kevin Egan, JCS’s chief marketing officer, who noted the company has doubled the percentage of completed sentences in jurisdictions where it is contracted to provide probation services.

Of course, the company’s heavy-handed approach to collecting fines and fees, which includes issuing probation violations for defendants unable to pay, resulting in their incarceration, may have something to do with JCS’s “success” rate.

“These companies are bill collectors, but they are given the authority to say to someone that if he doesn’t pay, he is going to jail,” said Augusta, Georgia attorney John B. Long. “There are things like garbage collection where private companies are O.K. No one’s liberty is affected. The closer you get to locking someone up, the closer you get to a constitutional issue.”

Long represented Hills McGee in a lawsuit against Sentinel Offender Services, which had continued to press McGee to pay probation fees even after a state court granted his petition for habeas corpus, effectively ending his term of probation. McGee’s suit sought to hold Sentinel in contempt for “using its position as a probation company to attempt to collect a debt that is not owed or due by threatening to have [him] jailed without bond.”

The suit also alleged a state law Racketeer Influenced and Corrupt Organization (RICO) claim against Sentinel for engaging in theft by deception, and challenged the Georgia statute that authorizes counties to contract with private probation companies. The case was removed to federal court in April 2010, which issued an injunction “forbidding Sentinel from taking any action to collect any fee or to have any arrest warrant issued that would interfere with the habeas relief granted McGee” by the state court.

However, the U.S. District Court later granted summary judgment to Sentinel on the RICO claim and held it did not have jurisdiction to hear McGee’s statutory challenge. That judgment was affirmed by the Eleventh Circuit Court of Appeals in June 2013. See: McGee v. Sentinel Offender Services, 719 F.3d 1236 (11th Cir. 2013).

Additionally, on September 16, 2013, a Georgia superior court issued a combined ruling in eight lawsuits seeking injunctive relief and damages against Sentinel Offender Services; the suits claimed the company had “unlawfully collected excessive supervision fees and employed other procedures to obtain money from probationers.”

The court held that the Georgia statute authorizing private probation services does not deprive defendants of due process or equal protection, nor does it “unconstitutionally condone imprisonment for debt.”

The superior court also found that private probation companies do not have authority to extend the original term of a probated sentence, and that the plaintiffs were “entitled to recover from Sentinel any probation supervision fees collected” after their probation had ended. Further, the company must return any fees collected for electronic monitoring in violation of state law.

The court granted the plaintiffs’ motion for partial summary judgment against Sentinel with respect to the improper collection of fees, and certified a class-action case as to that issue.

The class representative, Nathan R. Mantooth, had been sentenced to one year of probation for a traffic violation, and ordered to pay a $420 fine and complete a driver improvement course. He paid the fine and finished the course, but was jailed after Sentinel claimed he had violated his probation. See: Mantooth v. Sentinel Offender Services, Superior Court of Richmond County (GA), Case No. 2013-RCCV-155.

Performance Problems Reported

Most recently, Sentinel Offender Services has been in the news for failing to properly monitor probationers in several California counties. A November 13, 2013 “contract discrepancy report” by Los Angeles County’s probation department found that 26% of Sentinel’s GPS tracking devices were faulty.

Problems with the GPS equipment included batteries that did not hold a charge and defective monitors that issued excessive false alarms; as a result, some probationers were not being monitored.

“If you have faulty technology, that is a recipe for disaster,” remarked Reaver Bingham, deputy chief of the county’s probation department.

Probationers on GPS monitoring in Los Angeles County include high-risk sex offenders and felons who have been released from prison to the county’s custody. The report by the probation department noted that in some cases Sentinel allowed offenders to continue wearing GPS monitors that the company knew were defective. In other cases, Sentinel simply stopped monitoring probationers.

Further, the company had failed to maintain accurate records related to GPS equipment malfunctions and case notes concerning interactions with probationers. County investigators found that only 3 of 197 offenders had case notes in their files prior to July 1, 2013, while there were no such records for 87 probationers from July 1 through October 31, 2013.

Sentinel blamed insufficiently trained probation officers and probationers who did not properly maintain their GPS monitors – for example, by failing to charge the batteries correctly. The company said it had attempted to contact county officials about those problems without success.

Previously, in June 2013, Orange County, California canceled its contract with Sentinel after officials found repeated failures with the company’s GPS monitoring and home detention equipment.

Sentinel was recently awarded a contract by the Los Angeles County Sheriff’s Department, valued at $7 million, to monitor up to 1,000 offenders.

Sources: New York Times, www.judicialservices.com, www.thinkprogress.org, www.al.com, www.sentrak.com, Mother Jones, www.wsbtv.com, http://abclocal.go.com, Huffington Post, Los Angeles Times, www.ppagonline.com

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