Poor offenders pay price when probation turns on profitThe Tennesseean
April 18, 2016
MURFREESBORO - Outside the $200-a-week motel room that Steven Gibbs and his family call home, the afternoon sun sparkles. Inside, though, he has the curtains pulled tight. After working third shift at a round-the-clock McDonalds, his wife, Debbie, sits on the edge of one bed, her eyes closed. But the hour doesn't matter.
"Half the time I'm scared to go outside the door," says Gibbs, 61, a former construction worker who has been jailed twice since late 2013 after he couldn't pay hundreds of dollars in probation fees for driving on a suspended license. Despite a court order barring the county and a private probation company from jailing him again, those fears linger.
"I don't trust none of them anymore," he says.
Probation is supposed to substitute for jail or prison, requiring offenders to report regularly and maintain good behavior. But in this fast-growing county outside Nashville and more than a dozen states, probation for misdemeanors is a profit-making - and increasingly contentious - venture.
Those with cash to pay fines when they're convicted often avoid supervision, while poor offenders can be snared in a cycle of debt and punishment. Critics of for-profit probation say it can create a modern "debtor's prison."
Rutherford County is just the latest hotspot in a widening debate over this system, which has spurred numerous lawsuits demanding change. Some communities have abandoned for-profit probation, others are vowing reform.
"It's not supposed to be about the money," says the local sheriff, Robert Arnold, noting that he chooses words carefully in a county sued for its use of for-profit probation. "The unfortunate part of our judicial system is once you get caught up in it, it's like a rat wheel you can never get out of because of some of the fines and the probation."
Gibbs, whose disability check and wife's wages don't leave enough for an apartment security deposit, says he could never satisfy a probation officer who wanted $45 every week for company fees and court fines. He was jailed for failure to pay in late 2013, then jailed again last July after failing a drug test the company charged $20 to administer.
Local officials and the probation company agreed recently to end their contract at the end of March. The federal judge who granted an injunction against the county and company pointed to a 1983 Supreme Court decision that courts cannot jail people just because they can't afford fines. The county mayor, citing a responsibility to taxpayers, has recommended the county take over the job.
But more than 1,000 courts, most in the South but ranging to Michigan and Washington state, sign over supervision of misdemeanor offenders to private companies.
The arrangement is praised as a way to uphold justice and improve collection of fines while saving money for governments. Critics, though, call it unfair, saying probation funded entirely by charging offenders piles costs on people who can't pay and jails them for offenses as innocuous as traffic tickets.
"You don't criminalize poverty," says Hub Harrington, who, as an Alabama circuit judge, called one city's private probation program a "judicially sanctioned extortion racket" when he shut it down in 2012. "If you turn the courthouse into a profit center, this is what you get."
In the debate over how to punish crime, most attention focuses on jails and prisons - but that overlooks nearly 9 million Americans on probation.
People on probation for the most serious crimes, felonies, are supervised by public agencies. But 44 percent of those on probation were sentenced for misdemeanors such as shoplifting or simple drug possession or lesser infractions like running a stop sign.
In the 1970s, some states began delegating supervision of misdemeanor offenders to cities and counties to cut costs. A Florida judge contracted with the Salvation Army, setting up a program funded by charging offenders monthly fees, the first privatization of probation.
By the 1990s, for-profit companies began lobbying for the contracts, says John McMahon, director of corrections for the Salvation Army's Florida division. The nonprofit still handles probation for eight Florida counties, but has been replaced by companies in about 20 others.
People convicted of lesser offenses can often avoid probation burdens by paying fines and court costs immediately. Those who can't must report to a probation officer, usually weekly, and comply with orders to, for example, avoid alcohol or undergo counseling.
The companies charge offenders supervision fees averaging $40 to $45 a month, and most also collect court-imposed fines and court costs. They also levy other charges - for orientation, drug tests and counseling sessions. Some probationers are charged fees to participate in litter pickup or other assignments that reduce their obligations.
"The system is designed to sell as many probation services as possible," says Jack Long, a Georgia attorney who has brought 18 suits against one company, Sentinel Offender Services. "For each service they sell, they make a profit." He calls the system "cash register justice."
In late February, Long won a jury verdict in Augusta, Ga., against Sentinel in a suit filed by a woman who'd been repeatedly jailed for probation violations. She was awarded $50,000.
Steven Queen, Sentinel's director of Georgia Services, disputes the notion that his company runs up fees, regardless of probationers' ability to pay.
"There is no intent, practice, behavior or policy that in any way promotes the exploitation of any participant, regardless of financial position," Queen said in a letter responding to questions from The Associated Press.
People are given opportunities to show financial hardships, and courts can sentence them to alternatives such as community service, Queen says. But, he adds, for people guilty of offenses like domestic violence or repeated drunken driving, probation matches them with court-ordered counseling.
Privatized probation also has allowed government to focus resources on felons while saving taxpayers millions of dollars, says John Prescott, president of the Community Corrections Association of Georgia, an industry group, in a written response to questions.
Leanne Alarid, a professor of criminal justice at the University of Texas at El Paso, says some courts and companies partner effectively, but others have lost sight of probation's intent.
"It has "morphed into, not cost-sharing, but a reliance on the probationer to pay for 100 percent of the cost," she says.
Some companies reward probation officers for collecting fees. Sentinel offered $500 bonuses and a $1,000 prize in a "March Madness" contest for workers who met or exceeded collection goals, a document filed in the recent Georgia case shows.
In Harpersville, Ala., private probation was an abusive system, according to Harrington, the retired judge who closed the system there.
He said the probation company threatened and harassed people it knew couldn't pay, including a mentally disabled man who'd been involuntarily committed several times by a probate judge. "They jailed him and were extorting money from his family to let him out ... and the only income he had was Social Security disability," Harrington says.
Private probation based on fees also violates people's rights because it imposes a different punishment on one group, Harrington argues. "A $200 ticket," he says, "should cost $200. Period. End of story. You can't charge a poor person more."
Some veterans of the business question the extent of abuses.
"I just don't know that they're as widespread as they're made out to be," says Dale Allen, chief probationofficer in Clarke County, Georgia. Allen has worked for both public and for-profit probation operators.
Some people simply want to escape fines, he says. "It's easier to say I can't afford to pay something, but what's the truth?"
Many governments contracting with probation companies are in a financial bind, says Chris Albin-Lackey, author of a 2014 Human Rights Watch report on for-profit supervision. But judges too often fail to consider whether someone has the ability to pay, and the contractor has a financial incentive to do the same, he says.
"You see a lot of cases where people are trying to explain to their probation officer why they honestly cannot afford to pay," he says, "and essentially the response from the probation officer is, 'I don't want to hear that. You don't pay that, I'm going to throw you in jail.'"
The lunch tables at The Journey Home, an outreach center for Murfreesboro's homeless, are emptying fast. Wait here, Marguerita Scroggins says.
Shouldering a daypack carrying her teddy bear, Jo Jo, Scroggins heads for the woods where she sleeps. When she returns, she spreads out paperwork documenting her arrest last fall for possession of a crack pipe. It instructs her to report to the probation company every Tuesday and to bring $45 each time to cover its fees and court fines. Her address is listed as the homeless center.
"They knew I was homeless because I wrote it down," she says.
Scroggins, 54, says her only income is a $744 monthly disability check. She is facing $1,200 in fines and court costs. On her first visit to the probation office, she says, she brought an instant coffee jar holding $3 in change. The probation officer told her they didn't take cash.
After nine years of running the Journey Home ministry, Scott Foster says he's used to seeing the men and women who come in one day for lunch show up the next on the sheriff's mug shot app. Charged for trespassing or public intoxication, most wind up on probation, and often in jail.
"You tell the judge you couldn't pay but that you're trying to do better, you're trying to make ends meet, and so they basically start your probation over again," he says. "So essentially, for our very indigent folks, we've almost set up a debtor's prison here in 21st century suburban America."
Lawsuits in a number of states have spotlighted tensions between companies and offenders.
- Georgia is considered the capital of private probation. As of last March, there were 182,000 misdemeanorprobation cases, about 80 percent of them supervised by for-profit companies, state officials say.
More than 30 probation companies operate in Georgia. Many are local firms, but one, Judicial Correction Services, is a subsidiary of a jail health care contractor partly owned by a private equity firm with billions of dollars in investments.
The 2014 Human Rights Watch report that cited widespread problems in Georgia's system estimated that private companies collect about $40 million a year from the people they supervise. Georgia law considers traffic offenses to be criminal, creating an additional group of probationers.
The Southern Center for Human Rights sued one company, Red Hills Community Probation, alleging it was threatening to or illegally detaining traffic violators and others and also requiring probationers to pay fines and fees after their sentences had ended.
Adel Edwards of Pelham, Georgia, who is mentally disabled, pleaded guilty to burning leaves in his yard without a permit. A judge fined him $500 and placed him on a year's probation. He also was required to pay a $44 monthly fee to Red Hills, increasing his debt to $1,028.
Edwards lived on food stamps in a house without running water. When he couldn't pay, he was jailed for a few days until his cousin's boyfriend came up with $250 to get him released, according to Sarah Geraghty, a center lawyer.
After Edwards' probation expired, a Red Hills officer ordered him to continue reporting and make more payments, which he did several times, according to the lawsuit. "I think we have to ask ourselves ... How is this promoting public safety or public welfare?" Geraghty adds. Red Hills closed last year. A lawyer for the company denied it engaged in any wrongdoing.
- In Alabama, JCS pulled out of the state last year after lawsuits brought by the Southern Poverty Law Center and others saw dozens of towns cancel contracts. The law center's suit accused the company of racketeering and extortion.
The company has also withdrawn from Mississippi, where it and the city of Biloxi face a lawsuit by the American Civil Liberties Union for jailing probationers who lacked money to pay fees and fines. The parties are attempting to negotiate a settlement.
JCS declined comment on the lawsuits or its reasons for withdrawing, but defended its work.
"We believe that JCS provides an important service to those municipal governments that do not possess the resources to enforce the terms of the court's probation and fine rulings," the company told AP.
- In Tennessee, a suit brought on behalf of Steven Gibbs and six other probationers, alleging racketeering and violation of due process, has cast scrutiny on Rutherford County and its probation company, PCC.
In an interim ruling in December, a federal judge concluded people who violated probation terms often had their supervision extended, incurring more fees they couldn't pay, leading to re-arrest and jailing.
"Indeed, Defendants trap probationers in a pernicious cycle for years on end," Judge Kevin H. Sharp wrote.
The county and company deny the lawsuit's allegations, and are appealing. The company that owned PCC when the lawsuit was filed, Arizona-based Providence Service Corp., declined to answer questions. PCC's current owner, Molina Healthcare Inc., another publicly traded firm, also declined to comment. So did the county's attorney.
Since the lawsuit was filed "hundreds of people have reached out to us," says Alec Karakatsanis, co-founder of Equal Justice Under Law, a legal advocacy group that filed the suit with the Baker Donelson law firm. "The stories about how they're extorted and victimized are, to me, just really disturbing."
It's 23 degrees out, and downtown Murfreesboro's street lights are still on when Sherri Barker pulls up in front of the PCC probation office to drop off her son, Charlie. Wearing five shirts under his hoodie to fend off the cold, he claims a spot by the locked door - just as he does every Thursday.
"I've been on probation since I was 23 years old. I'm 35 now," he says, recounting eight arrests for driving on a suspended license and another for drug possession. Each brought more probation, fines and fees. Barker used to work construction to pay. But driving to work got him rearrested, he said.
Soon, seven others join him in line. One man, arrested for driving under the influence, has come to pay the $84 weekly fee for an electronic ankle bracelet. Another complains about company-run anger management classes that cost $17.45 each.
Barker says when his mother gets a tax refund, he plans to pay the last $500 he owes. But he wonders if he'll have to keep paying for drug tests or supervision fees until probation runs out in September.
"Just $500," he says. "But I don't know what they're going to try to pull. I wish you could just pay it off and be done with it."
Georgia is trying to overhaul its misdemeanor probation system, following a scathing state audit that found it was poorly run, lacked transparency and was abusive to some poor offenders.
Legislative reforms that took effect last summer include caps on the amount for-profit companies can charge probationers and a ban on jailing those who can prove they're unable to pay. Companies also are now required to disclose the number of offenders they supervise, and the fees and fines collected. The firms don't have to make public their profits and losses.
Prescott, whose association helped shape the Georgia reforms, says poor people should not be jailed solely because they can't pay fines and noted the new law allows for more alternatives, including community service.
But Long, the lawyer representing probationers, dismissed the reforms as "window-dressing."
Geraghty, of the Southern Center for Human Rights, says it's too soon to tell, labeling the reforms a first step.
"We still have a system in which there is a profit motive to keep people on probation and to keep them there for as long as possible," she said, "and that has not changed."
Tucked in one corner of the Rutherford County Jail's "C'' block, cell 2 has a pair of steel sleeping platforms, a sink and toilet, and little else. For Rachael Hamm, jailed for her third violation of probation in two years, this is home until at least April.
"It's been a revolving door," says Hamm, who has run up $5,000 in probation fees since a 2012 arrest for possession of marijuana. "I've missed Thanksgiving. I've missed my baby's first Christmas...."
Hamm, who is 28 and has two of her children's names tattooed on the inside of her wrists, says her own mistakes got her here. She acknowledges abusing drugs. Her first violation was for failure to report to theprobation officer. Then, when she and her boyfriend were pulled over, and police found marijuana and a container of urine that could be used to falsify a drug test, she went back to jail and probation was renewed again.
But Hamm says the court isn't helping her address her drug problem by piling on probation fees she has no way of paying.
The jail released 13 inmates in December, after a judge ordered the county to stop incarcerating people solely for not paying probation fees. But dozens are still being held, at a cost of $63 a day, for otherprobation violations.
The jail's records room holds 9,990 warrants for violating probation, the majority for non-payment. No doubt, many of those on probation could come up with the money. But what about those who can't?
Since the ruling, Fred Robinson worries less about being jailed again for not paying thousands of dollars in supervision fees. But more than four years after Robinson, 31, was arrested for possession of marijuana and drug paraphernalia, he still can't escape probation.
Robinson endures recurrent internal bleeding and cirrhosis that forced him to give up a restaurant job. He says he told a probation officer that his $750 monthly disability check left nothing for court costs, fines and fees. But a judge renewed his probation and extended it.
"It's not about what I did," Robinson says. "It's about the money."