Portside

Every year, US courts sentence several hundred thousand misdemeanor offenders to probation overseen by private companies that charge their fees directly to the probationers. Often, the poorest people wind up paying the most in fees over time, in what amounts to a discriminatory penalty. And when they can't pay, companies can and do secure their arrest.

The 72-page report, "Profiting from Probation: America's `Offender-Funded' Probation Industry," describes how more than 1,000 courts in several US states delegate tremendous coercive power to companies that are often subject to little meaningful oversight or regulation. In many cases, the only reason people are put on probation is because they need time to pay off fines and court costs linked to minor crimes. In some of these cases, probation companies act more like abusive debt collectors than probation officers, charging the debtors for their services.

"Many of the people supervised by these companies wouldn't be on probation to begin with if they had more money," said Chris Albin-Lackey, senior researcher on business and human rights at Human Rights Watch. "Often, the poorer people are, the more they ultimately pay in company fees and the more likely it is that they will wind up behind bars."

Companies refuse to disclose how much money they collect in fees from offenders under their supervision. Remarkably, the courts that hire them generally do not demand this information either. Human Rights Watch estimates that, in Georgia alone, the industry collects a minimum of US$40 million in fees every year from probationers. In other states, disclosure requirements are so minimal that is not possible even to hazard a guess how much probation companies are harvesting from probationers in fees.

 
Human Rights Watch research in Georgia, Mississippi, and Alabama revealed numerous egregious cases that illustrate the abuses related to outsourcing probation supervision as it is practiced today.

• In Augusta, Georgia, a man who pled guilty to shoplifting a US$2 can of beer and fined US$200 was ultimately jailed for failing to pay more than US$1,000 in fees to his probation company. At the time he was destitute, selling his own blood plasma twice a week to raise money
• In another Georgia town, a company probation officer said she routinely has offenders arrested for non-payment and then bargains with their families for money in exchange for the person's release.
• In Alabama, the town of Harpersville shut down its entire municipal court after a judge slammed the municipality and its probation company for running what he called a "judicially sanctioned extortion racket."
• The Mississippi Delta town of Greenwood, an impoverished community of 15,000, had more than 1,200 people on probation with the private firm Judicial Corrections Services as of August 2013. Many were guilty only of traffic offenses. The town's municipal judge told Human Rights Watch that "maybe one or two" of those had warrants out for their arrest. The real figure was close to 300.

These cases are not mere aberrations. Not all company probation officers behave unethically, but they are all subject to perverse financial incentives that encourage abusive behavior. And courts that view probation companies as an easy way to boost collections have troubling incentives not to ask hard questions about the tactics those companies employ.

Probation companies operate on an "offender-funded" basis that is financially appealing to many courts and local governments. They offer to provide probation supervision for low-level, misdemeanor offenders at no cost to the taxpayer. Instead, their contracts stipulate that judges should order probationers to pay them various fees as a condition of their sentence of probation. Many companies' profits are entirely dependent on their ability to collect these fees from probationers.

In Bearden v. Georgia, the US Supreme Court has ruled that a person on probation cannot be jailed simply because they cannot afford to pay a criminal fine. But many courts effectively delegate the responsibility of determining whether an offender can afford to pay fines and company fees to their probation companies. This presents a clear conflict of interest because company profits, along with the quarterly bonuses of some company probation officers, depend entirely on their ability to collect fees.

"Probation companies have a financial stake in every single one of the cases they supervise," Albin-Lackey said. "Their employees are the last people who should be entrusted with determining whether an offender can afford to pay company fees."

In some cases, courts sentence offenders to probation because they think they require supervision and monitoring. But in many cases, people are sentenced to probation purely so that courts can task their probation companies with monitoring an offender's efforts to pay down fines and court costs over time. These offenders would not be on probation at all if they could afford to pay these costs immediately and in full at the time of their sentencing.

Many are guilty only of minor traffic violations like driving without proof of insurance or seatbelt violations. While these offenses often carry no real threat of jail time in and of themselves, a probationer who fails to keep up with payments on their fines, court costs, and company fees can be locked up.

"Courts sentence several hundred thousand people to probation with private companies every year but many do almost nothing to guard against abusive practices," Albin-Lackey said. "Perversely, some of America's poorest counties are golden business opportunities for the industry precisely because so many residents struggle to pay off their fines."