For those who can afford it, many misdemeanor violations and traffic violations are punished with a fine that can be paid the very same day. But for those who can’t, those same offenses may become subject to a punishment much more menacing, in a profit-driven system of private probation that imposes interest and fees with a threat of jail time on those who are often least able to pay.
In one Georgia instance documented in an extensive new Human Rights Watch report, a man who stole a $2 can of beer ended up in jail for failure to pay a $200 fine that ballooned into more than $1,000 under the supervision of a private probation firm. Thomas Barrett’s entire income — which included selling his own blood plasma — was less than the monthly fee imposed by the private probation firm.
In Mississippi, a woman who had paid off her entire $377 fine for driving without a license was being threatened with arrest for failure to pay so-called “supervision fees” being charged by a private probation firm. Court officials told Human Rights Watch the firm had no authority to threaten arrest.
In Alabama, judges have enforced the threats of probation companies to impose jail time for those whose fees and fines piled up from private probation.
More than 1,000 courts around the country are shifting the burden of monitoring payment of fines to private probation firms, sentencing hundreds of thousands of individuals each year to their supervision. In what is perhaps the most extensive documentation of the practice of privatizing another aspect of the criminal justice system, Human Rights Watch finds that these firms are subject to scant monitoring by local governments and courts, free to impose fees and fines in amounts that are not regulated by any government entity.
Among the monthly fees lobbed onto probation are monthly “supervision” fees, even where the only supervision mandated by the court is collection of a fee, rather than other probationary terms that would impose a cost on the company. Other times, it is the heavy cost of electronic monitoring or drug tests.
In the case of Barrett, the man who stole a beer, he was put on electronic monitoring at a cost of $360 per month. Barrett was living on subsidized housing and food stamps. Even using the money from sale of his blood plasma, Barrett could not keep up with the payments. But the most perverse thing about the scenario was that Barrett’s alcohol consumption was being monitored, even though his probation terms did not include a ban on alcohol. “As Augusta attorney Jack Long put it in an interview with Human Rights Watch, ‘He could have sat around and drank beer all day and it would have monitored that but it would not have been a violation of his probation,’ “ the report explains.
In another instance in Augusta County, Ga., a homeless man was placed on electronic monitoring that required him to have a land line, and spent 52 days in jail because he could not physically comply with the monitoring order. Companies also order weekly drug testing, sometimes at a cost of $25 per test, or $1,250 per year.
While probation is typically aimed at those who would otherwise go to jail if they were not subject to monitoring, these private firms have expanded their purview to glorified debt collection — with jail time as punishment for failure to pay. This practice of jailing those who can’t afford to pay — so-called “debtors’ prisons” was invalidated by the U.S. Supreme Court more than 30 years ago. Probation company officials and courts claim to comply with this court ruling by assessing ability to pay, but in many instance they use factors such as a defendant’s possession of a pack of cigarettes or two cell phones to show that they can pay, even where they are homeless, on public assistance, or otherwise make clear that they have no sufficient sources of income.
“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 report explains.
As the Human Rights Watch report explains, this phenomenon emerged in part from a resource squeeze throughout the criminal justice system. State resources focused on probation for felony offenses punt misdemeanors to county and municipal governments, who cannot afford to oversee probation services. Private probation firms offered to fill those gaps at no cost to the municipalities, and many jumped at the opportunity.
So-called “offender-funded” probation means that the private firms shoulder the cost of monitoring an individual by charging that individual interest. Private probation firms then impose interest and fees as they see fit, and “make probationers’ freedom contingent on paying those fees.” Some states such as Montana have publicly run “offender-funded” probation systems. The difference, however, is that if fees collected are insufficient to cover the costs of the system, public resources cover the balance. “Only private probation firms can offer courts a probation service that is guaranteed to cost them nothing,” the report explains.
The industry has also been encouraged by an ideological preference for privatizing government services, tracking the proliferation of privatized prisons and prison services. And while the probation services claim to be free of cost, jailing those offenders for nonpayment of fees imposed by the private firms costs an average of $50 a day.
The report found that the practice of jailing those who can’t afford to pay violates both constitutional and international law. Several courts have invalidated particularly questionable practices, including illegally extending probation sentences and one Alabama judge even invalidated imprisonment of those who don’t pay their fees, rebuking the firm for running a “debtors’ prison.” But in many jurisdictions, the absence of even the most basic monitoring prevents jurisdictions from knowing how these firms are operating.