Summary

Cindy Rodriguez, a 53-year old woman living in Murfreesboro, Tennessee, had never been in trouble – “never had a parking ticket” – until 2014, when she was charged with shoplifting. Rodriguez survives on disability payments due to injuries to her neck and back, and lives in constant pain. When her case went to court, she was represented by a public defender, provided to individuals living in poverty who meet certain criteria. Rodriguez said her public defender advised her to plead guilty and accept probation, saying it was the best deal she would receive from the state.

Rodriguez was placed on probation for 11 months and 29 days under the supervision of Providence Community Corrections, Inc. (PCC), a private company that had contracted with the Rutherford County government to supervise misdemeanor probationers. Rodriguez’s lawyer told her probation was nothing to worry about, that she would just have to visit her probation officer once a week and pay her fees and fines. When she informed the judge about her stark financial situation and disability payments, he told her to do the best that she could. She owed the court US$578 for the fine and associated fees, and on top of that she would have to pay PCC a $35-45 monthly supervision fee. PCC also conducted random drug tests, though she was not charged with a drug-related offense, for which she would pay approximately $20 a test. The costs of probation ruined her life.

Every time Rodriguez went to PCC to visit her probation officer, she was pressured to make payments. On one visit when she did not have the money to make a payment, her probation officer told her that she would “violate” her and that she would go to jail, which is what happened. Rodriguez turned herself in, saying it was “the most humiliating thing I’ve ever had to do in my whole life…. They took a mug shot of me, fingerprinted me, and treated me like I was garbage for about two and a half hours. Then [they] told me I could go home, they'd see me next time. That's what the police officer said, ‘I'll see you next time. You'll violate again.’ That's how they treat you.”

Feeling the financial pressure of probation, backed by the threat of jail time, Rodriguez was spending far too much of her $753 monthly disability check on probation instead of basic necessities. She told Human Rights Watch: “I struggled to pay them the payments they needed every week. I ended up selling my van, because I was threatened all the time. If I didn't make the payments, they were going to put me in jail. I lost my apartment, and it's been a struggle ever since…. There were times [my daughter and I] didn’t eat, because I had to make payments to probation.” The consequences of her time on probation are still haunting Rodriguez: “No matter what I do, I can’t get back up.”

Rodriguez’s experience with private probation is not unique. Probation is a criminal sentence in lieu of jail time and is widely employed as an alternative to incarceration in the United States. One goal of probation supervision is to ensure that an individual does not commit further offenses, while also providing rehabilitative services. Traditionally performed by state agencies or local law enforcement, probation supervision for misdemeanors and criminal traffic cases has in many states increasingly been outsourced to for-profit, private companies.

This report focuses on the impact of private probation on people living in poverty in four states: Florida, Kentucky, Missouri, and Tennessee. In these four states, private probation is predominantly imposed for misdemeanor offenses, such as disorderly conduct, possession of small quantities of illegal drugs, or petty theft, and criminal traffic offenses, including driving with a suspended or revoked driver’s license, not maintaining vehicle insurance, and driving under the influence of drugs or alcohol. From November 2016 to October 2017, Human Rights Watch interviewed individuals supervised by private probation companies, as well as judges, law enforcement officials, lawyers, and other experts.

This is Human Rights Watch’s second report on the impacts of private probation and the offender-funded criminal justice system. It follows up on the first report, Profiting from Probation: America’s “Offender-Funded” Probation Industry, released on February 4, 2014, focusing on the private probation industry in Alabama, Georgia, and Mississippi. One of the main findings of that report was evidence of “pay only” probation, or the imposition of a probation sentence simply to supervise the payment of costs, rather than as an alternative to a jail sentence. Pay only probation means that an individual who can pay their court costs up front is not subject to probation supervision and its associated conditions and costs, leading to significantly different financial and legal outcomes for poor defendants. The 2014 report also documented cases of incarceration when an individual was unable to pay their supervision fees. The current report documents the impacts of private probation in a different geographic region, focusing on Florida, Kentucky, Missouri, and Tennessee. The report finds that the impacts of private probation are unique in every state, and research did not find widespread use of pay-only probation or incarceration in cases when a person was unable to pay supervision fees.

This report finds that private probation companies exert significant control over the lives of people on probation. In the states studied for this report, private probation companies can impose supervision fees, order drug and alcohol tests, and, if a person does not fulfill all the terms and conditions of their probation, they can issue a violation of probation and request arrest, which can lead to jail time. The services of private probation companies are attractive for cash-strapped jurisdictions because they typically do not charge for their services; instead, their revenues and profits come entirely from probationers’ fees. The companies, therefore, have a direct financial interest in keeping their clients under probation as long as possible, and using every tool available to urge payment of fees, particularly those paid directly to the company. Judges also often require people on probation to complete courses that ostensibly improve public safety and support the rehabilitation of the person on probation, including alcohol and drug testing, domestic violence and anger management courses, and monitoring devices, such as electronic instruments that monitor a probationer’s location or alcohol consumption. Many private probation companies offer courses, treatment, and monitoring device services to courts, directly benefitting when courts mandate these services as conditions of probation. The cost for all these services is passed directly to the probationer in all four states researched for this report, creating an “offender-funded” system.

The spiraling costs many probationers face only partly explains how misdemeanor or criminal traffic offenses can lead to severe criminal debt in the US. The same individuals who qualify for a court-appointed public defender or government benefits, such as food stamps and housing support, may still be ordered by courts to pay hundreds or thousands of dollars not only in fines levied as punishment for an offense, but in various fees and other surcharges. Courts bill defendants for prosecutors, public defenders, jailing and transportation, and other costs associated with the court, as well as unrelated fees, like the sheriff’s retirement fund or brain injury trust funds. In all four states researched for this report, if probationers cannot pay for the direct or indirect costs of probation, they face a number of legal consequences, including jail time. The incarceration of people who do not pay fines and fees because they are genuinely unable to pay was outlawed in 1983 by the US Supreme Court, yet it remains a reality.

Not all types of criminal defendants are subject to private supervised probation. Felony probation, in contrast to misdemeanor and traffic probation, continues to be monitored by state agencies, and is subject to greater transparency and accountability standards. In some misdemeanor cases, judges will allow probationers who have met their financial obligations to the court to transition to unsupervised probation. However, defendants without adequate resources to pay court fees, or who need more time to make payments, often must continue under supervision, subjecting them to additional fees, testing, and monitoring.

Increased supervision, monitoring, and testing create more opportunities for a violation of probation, which is why many individuals on private probation feel that they are “set up to fail.” When a person does not meet the weekly and monthly obligations of probation, then a private probation officer can issue violation of probation, which can entail the issuing of a court summons or an arrest warrant. Many probationers interviewed for this report said their probation officers made threatening or coercing statements when they did not have enough money to pay for their supervision and other conditions. In all four states researched for this report, after being arrested or summoned to court, a probationer will have to go before a judge once again, potentially through several hearing dates, and may be subject to additional court costs and fines, extended probation periods, new probation conditions, jail time, and new opportunities to fail. This can lengthen a person’s criminal record, which has long-term effects on the ability to get a job or find housing.

In Florida, Tennessee, and Missouri, probationers often must pay court costs, fines, and supervision fees directly to the private probation officer. While costs owed to the courts are not unique to private probation, the probationers supervised by companies in all four states included this report told Human Rights Watch that the payment of these costs was burdensome, and many did not distinguish between costs owed to the court system and the private probation company. In cases in Tennessee and Florida, where only partial payments are made or when a probationer is in arrears, courts leave probation officers free to decide how payments are allocated between company fees and courts costs. If most payments are going to the probation company rather than the court, then a person can be left with significant unpaid debt to the court at the end of their probation.

When non-payment of fines and costs is the only reason that an individual has violated probation, the US Supreme Court has said that US courts are required to ensure that they do not jail a person who failed to pay because they were genuinely unable to do so. Human Rights Watch finds few instances in the four states researched where individuals were incarcerated because they were unable to pay court costs and probation supervision fees. However, research in the four states reveals that people more often face incarceration for inability to pay for additional probation requirements, including court-mandated classes or background checks. If an individual is using his or her limited income to pay probation supervision fees and court costs, they may have difficulty saving enough to also cover a required course, regular drug testing, or background checks. Some probationers, fearing the consequences of reporting to probation without enough money in hand, stop reporting entirely. As a result, probationers were not facing incarceration for failing to pay their fines and fees, but rather for “proxies” for failure to pay, including not completing classes, submitting to drug tests and treatment, conducting background checks, or other conditions that impose financial a burden because they could not afford to pay for these requirements.

In some of the states researched by Human Rights Watch, unpaid fines and court costs can result in a suspended or revoked driver’s license, which can be the result of private probation officers applying payments to probation rather than court costs. A revoked driver’s license can have a catastrophic impact, as many people on probation feel that they have no choice but to drive, particularly in the rural regions of the states studied for this report, though this can have criminal consequences, including going back on private probation. This endless cycle of criminal charges, probation, and debt can trap some until they have no option left but jail. Those who can pay down their debts usually escape the cycle.

The impact of onerous conditions of probation, including payment of private probation fees – from ballooning debt to possible incarceration – often extends to family, friends, and the wider community. Many probationers rely on the help of friends and family members to make payments, drive them to probation appointments and court hearings, and assist with housing and food. Some family members also provide emotional support through stressful and uncertain times.

Children are particularly impacted when a parent is arrested, incarcerated, or simply does not have the money to pay for basic needs or child support because they are paying probation fees. Family members step in to care for children while a parent is attempting to resolve criminal cases and comply with probation conditions. The offender-funded system of justice is most burdensome and punitive for those who cannot afford its costs.

As states attempt to reform criminal justice systems and reduce spending on incarceration, many have increased their reliance on alternatives to incarceration. Private companies have entered the market to offer states, counties, and municipalities lower cost options for criminal justice functions. New systems are emerging in the changing landscape of criminal justice, but they often lack transparency, regulation, and oversight, particularly for the individuals most vulnerable to abuses.

The focus on criminal justice debt and its impacts on people living in poverty has gained increased public attention in recent years, though much action is still needed to correct these abusive practices. Some states, like Kentucky and Tennessee, have increasingly regulated excesses in the private probation industry, yet implementation and oversight are sorely lacking. States need to do more to ensure that courts and private probation companies are not acting abusively because of their incentive to maximize profits, and that they instead provide quality services with the intent of supporting individuals to successfully complete probation.

Probation companies should review and assess their practices to ensure that they are complying with state and national legal standards and in a manner that fully respects the rights of the people under their supervision. Working with state governments, probation companies should establish processes for identifying and addressing any attempts by probation companies or courts to sidestep rules or abuse their power. Greater transparency, paralleling government agencies that provide probation supervision services, can improve accountability in their operations.

The drive to privatize criminal justice services in many states is fueled by budgetary shortfalls. Private probation companies shift the cost of supervision from the state to the system’s “users,” and that larger dynamic gives rise to many of the abuses outlined in this report. In the face of shrinking budgets and increasing costs, probation that is “free” for the courts offers an attractive option for states and local governments. State and federal governments should examine alternative ways to reduce criminal justice system costs in a way that preserves and promotes both justice and safety.

 

Recommendations

To the Federal Government

• Expand the authority of the Department of Justice to investigate court practices, and authorize an examination of the impact of criminal justice debt, including fees for private probation supervision and associated conditions, on the poor. An investigation should, at a minimum, include analysis of the processes to determine an individual’s total criminal justice debt, their ability to pay within a reasonable timeframe, long-term impact on the individual and his or her family, collection methods by public officials and private agencies, and consequences for inability to pay.
• Establish national standards for criminal justice debt, including guidelines on ability to pay determinations and collection practices.
• Through the Bureau of Justice Assistance, make technical assistance and resources available to state and local court systems to end offender-funded criminal justice systems.

To State Governments in Florida, Kentucky, Missouri, and Tennessee

• Cease reliance on user fees to fund criminal justice and other state systems.
• Ensure the process of selection of and contracting with private probation agencies is free of conflicts of interest.
  • Implement open bid contracting for private probation companies, with adequate transparency of all documents, including description of services, fees, and restrictions. Allow relevant state agencies, whether an administrative body or the state Supreme Court, to make decisions on the use of private probation in a given jurisdiction, removing discretion from judges or other local authorities.
  • Eliminate exclusive contracts for private probation companies.
  • Require contractual terms that eliminate incentives for private probation companies to increase their revenue by removing any discretion on the part of private probation officers regarding supervision fees and surcharges, collection methods, sanctions for violations, and probationary periods.
  • Require private probation officers to disclose any conflicts of interest for themselves or their company to the judge prior to making recommendations on sanctions, fines, or other consequences for violations of probation.
  • Empower an independent state agency to oversee compliance with all private probation rules and regulations, including through regular monitoring, robust reporting requirements, and sanctioning power.
• Ensure transparency in the operation of private probation companies.
  • Establish procedures for relevant state agencies to vet and track information about private probation companies and where they operate.
  • Track the number of probationers under the supervision of each private probation company, including the length and outcome of supervision; any violation of probations, the reasons for each violation, and their ultimate dispositions; description of other services provided to probationers under supervision, such as community service or work placements, classes, drug testing, monitoring devices, and their outcomes; and a breakdown of all fees collected.
  • Disclose potential or perceived conflicts of interest, particularly regarding recommendations on sanctions, fines, or other consequences associated with a violation of probation.
  • Publish all of the above information on a regular basis, both online and in print.
• Establish safeguards to ensure legal financial obligations do not create undue hardship for those who cannot afford to pay.
  • Formulate guidelines that ensure criminal justice costs, fees, and fines are adjusted to a person’s ability to pay so that they have comparable impact for people with differing levels of income/wealth, such as a “day fines” system. Establish clear processes for seeking waivers, reductions, and substitutes for all required cash payments, especially court costs, fees, and fees paid to private service providers.
  • Exempt indigent defendants from all courts costs and probation fees. Ensure judges have, and are aware that they have, the discretion to waive fees and costs.
  • When conditions of probation, such as courses, treatment, or monitoring devices, are considered vital for public safety, provide these services on a sliding fee scale or without cost. Always provide these without cost for indigent defendants.
  • Ensure that the collection of court costs is not used as a central measure of judicial or clerk performance.
  • Eliminate payment of court costs and fees as conditions for successful completion of probation, including payment of costs associated with courses, monitoring devices, treatment, and other probation requirements.
  • Create adequate regulation to safeguard probationers unable to make payments toward court costs, probation fees or associated conditions from being incarcerated, having their driver’s license revoked, or other punitive measures unrelated to their offense.
  • Implement alternative methods to address failure to pay violations, such as a system of graduated sanctions.
• Provide clear education, training, and professional conduct standards for private probation officers and any other personnel working with probationers.
  • Restrict ability of private probation companies to collect only supervision fees, and not handle restitution, fines, and court costs payments.
  • Standardize drug testing guidelines, procedures, and cutoffs across criminal justice institutions.
  • Require private probation companies and officers to provide probationers with clear information about their rights.
• Establish state-level agencies, or expand the mandate of existing institutions, that are empowered to monitor private probation companies, enforce regulations, and investigate grievances from people on probation.
  • Create monitoring protocol to ensure compliance with all state and federal regulations pertaining to probation supervision.
  • Authorize grievance mechanisms to handle issues arising from all aspects of supervision, including assignment to private probation, payments and waivers, drug testing, and probation officer misconduct or abuse. Require the timely and transparent handling of grievances. Provide written guidance on grievance procedures to every individual at the time they are placed on private probation. Create systems for appealing decisions of the grievance mechanism to courts.
  • Clearly post information on rules and regulations, including the process to submit a complaint, at every probation reporting office and courtroom.
  • Create guidelines to protect probationers who raise concerns or complaints about their supervision from retaliatory action by probation officers, judges, clerks, or other court officials. Protect confidentiality of complainants.
  • Empower state oversight agencies to censure or suspend private probation companies or specific officers for non-compliance.

To Courts and Judges in Florida, Kentucky, Missouri, and Tennessee

• Ensure selection of private probation companies is done in a public and transparent manner, with no actual or perceived conflicts of interest. Judges should refrain from engaging in or making any statements about the selection or contracting with private probation companies.
• Ensure that only appropriate officers of the court engage in decision-making for probation orders and violations of probation. Restrict access of private probation officers from the section of the courtroom reserved for attorneys, court personnel, and litigants (commonly known as “the bar”), as is already the practice in some states.
• Guarantee that the right to counsel is made known during all sentencing and violation of probation hearings, and that an individual can request a public defender in any of these proceedings.
• Evaluate an individual’s ability to make payments toward fines, fees, and the costs associated with probation and its conditions at the time of sentencing. Waive costs when a defendant cannot afford payments, or make alternatives available, such as community service.
• Ensure that individuals offered probation as part of plea deals are aware of all details related to private probation, including supervision requirements, conditions, costs, and consequences for noncompliance before accepting. In addition, ensure that individuals sentenced to probation are aware that they cannot be incarcerated if they are unable to pay for supervision, drug tests, or other conditions of probation, and are entitled to a hearing before the court to determine if they have the ability to pay. Communicate and distribute information on private probation complaints and appeals processes at the time that a probation order is made.
• Use appropriate systems for notice and summons when individuals violate their probation for inability to pay. For example, where appropriate, instead of issuing arrest warrants, use a less burdensome summons procedures.
• Ensure compliance with Bearden v. Georgia through hearings that meaningfully assess an individual’s ability to make payments to the court and/or private probation company. Similarly, if an individual has violated probation because of an inability to pay for a drug test, class, training, treatment, monitoring device, or other condition of probation, judges should conduct an ability to pay determination and not incarcerate them if unable to pay.

To Prosecutors

• Include unsupervised probation or alternatives that do not incur fees in plea deals with indigent defendants or where supervision is not reasonably required.
• When offering a plea agreement that includes private probation supervision, ensure that the defendant is aware of all details related to supervision requirements, conditions, associated costs, and consequences for noncompliance before accepting the offer.
• Restrict conditions on probation included in plea deals to those that are truly necessary, offering low cost or free alternatives whenever possible.

To Private Probation Companies

• Establish clear guidelines for probation officers on interactions with clients and create systems of internal accountability for ensuring compliance with the guidelines. Ensure that staff never threaten or coerce probationers who are unable to pay, and never refuse supervision, drug testing, background checks, courses or other conditions, due to insufficient funds.
• Exercise adequate diligence, including background checks and screenings, in hiring probation officers and any other staff who have contact with individuals being supervised under court order, whether that be through a treatment program, course, or monitoring system. Create and educate staff on their professional and ethical responsibilities, including procedures for investigating and sanctioning violations.
• Require regular training for staff on best practices in probation supervision. Provide probation officers information, tools, and resources so they are able to offer rehabilitative services and address challenges in the life of probationers related to employment, transportation, housing, healthcare, mental illness, substance abuse treatment, and childcare.
• Educate probationers on their rights.
  • Provide clear verbal and written information about application of payments toward restitution, court costs, and probation fees.
  • Establish a process by which probationers can apply for waivers, work programs, or other alternatives to cash payments, through the probation company and the court. Make all steps of that procedure and the number of pro bono/sliding scale clients publicly available.
• Establish a method for receiving and addressing complaints from probationers. Disseminate information about company and state complaint processes to probationers when commencing supervision and make complaint information visible in all probation offices. Due to fears of reprisal, allow confidential complaints to be made.

 

Methodology

This report examines the use and impact of privatized probation services for misdemeanor offenses in four US states: Tennessee, Missouri, Kentucky, and Florida. These states were selected because of the historic and widespread presence of privatized probation services, varying levels of regulation and oversight, and reports of human rights abuses associated with private probation companies. Human Rights Watch published a report on private probation companies in 2014 focusing on abuses in Alabama, Georgia, and Mississippi.

In late 2016 and 2017, Human Rights Watch conducted more than 150 interviews with probationers and their families; criminal defense attorneys and public defenders, judges and court staff, prosecutors; criminal justice experts; members of civil society organizations; attorneys who have investigated or brought lawsuits against private probation companies; local law enforcement; and probation company representatives. Due to concerns about reprisals, Human Rights Watch has withheld the identity of certain probationers and their family members, unless they consented to being identified; the report indicates where pseudonyms were used. Other individuals, primarily attorneys and court staff, requested anonymity for fear of impact on their ability to do their jobs; their names and other identifying information have not been included in this report.

Human Rights Watch visited over 20 county and municipal courts, and in nearly all of them observed cases where misdemeanor offenders were either sentenced to private probation or were in hearings for violation of probation terms. In addition, we interviewed dozens of probationers at reporting locations in Kentucky, Missouri, and Tennessee. We reviewed court records, where available, to verify details relating to individual cases.

Human Rights Watch, in collaboration with civil society organizations and pro bono lawyers, obtained information through records requests in Kentucky and Tennessee. Records requests were sent to every county in Kentucky, in partnership with the American Civil Liberties Union (ACLU) of Kentucky, to ascertain their use of private probation companies.[1] In Tennessee, Human Rights Watch obtained records on private probation permits, revenue generated for the Private Probation Services Council, and quarterly reports filed by private probation companies in Giles County. In Florida and Missouri, Human Rights Watch relied on case documents and practices available through online databases.

Detailed questionnaires were sent to 22 companies operating in the four states researched for this report, particularly those companies that were researched for this report. Two company representatives provided written responses: Private Probation Service TBN, LLC, of Hillsboro, Missouri, and the now defunct Correctional Services Incorporated (doing business as Tennessee Correctional Services) in Memphis, Tennessee.[2] PSI Probation of Cookeville, Tennessee, provided an interview by phone, responding to several questions about how they supervise probationers.

Human Rights Watch also conducted extensive desk research through academic articles, media reports, and civil society reports pertaining to legal financial obligations, private probation, and alternative models for criminal justice debt.

No compensation was offered for interviews. Everyone interviewed for this report was informed of the nature of the research and that their participation was completely voluntary.

 

What’s the difference between a fee and a fine?   Fines are generally imposed as a penalty for a crime, either on their own or in conjunction with a jail or prison sentence. Courts also charge a wide range of fees that may not be directly related to the punishment of a crime, but rather the process of prosecution and the functioning of the court. There may also be fees and surcharges completely unrelated to court function, like state funds to support specific causes, retirement funds, and surcharges like partial or late payment fees. This report refers to court-imposed fees and fines as court costs. Restitution can also be imposed by a court and is meant to compensate a victim of a crime for their losses. Costs associated with restitution can place significant financial burdens on an individual. However, this report does not address restitution obligations. Private probation companies can charge their own fees for supervision and the cost of other probation conditions, like courses, treatment, monitoring devices, and drug testing. These fees are not included in the term court costs. Regular payment of fines, court fees, restitution, and private probation fees are all generally conditions for the successful completion of probation.

 

I. Background: Offender-Funded Criminal Justice Systems

Budgetary Pressures in the Criminal Justice System

States, counties, and municipalities across the United States face budget shortfalls, which have increased since the economic recession of the late 2000s and early 2010s.[3] Budgetary pressures have forced state and local governments not only to cut expenses but also protect and augment revenue sources. Numerous state and local governments now pay some or all of the costs of running their criminal justice systems through a combination of taxes and various fines and fees.[4] In some cases, the fines and fees generated through the criminal justice system are also used to cover state or local expenditures not related to the judicial system.[5]

States and localities are generating more revenue to fill budget shortfalls by shifting the costs of criminal justice functions to the individual “users.”[6] Some jurisdictions have turned to mandatory fines and fees, where a judge has no discretion, particularly for minor offenses and traffic violations.[7] A number of jurisdictions have come under fire for using local courts to generate revenue by fining individuals for minor infractions. And in Missouri, residents of Pagedale filed a class action lawsuit in 2015 against their municipality for excessive fines under local ordinances, which include restrictions on hedge height, curtain appearance, and the way that pants must be worn.[8]

Governments also impose a multitude of fees and surcharges on defendants to raise revenue. Fees are regularly imposed for various law enforcement functions, including arrest, processing and intake, drug testing (even in cases that do not involve drugs or alcohol), clerk services, and jail boarding. Florida prescribes a mandatory minimum fee of US$50 to apply for indigent status to qualify for a public defender, a minimum $50 fee for the assistance of a public defender in a traffic or misdemeanor case, and an additional $50 “cost of prosecution fee.”[9] While judges have the power to raise some of these fees, they do not have the discretion to waive or reduce them below the mandatory floor.[10]

Defendants in some states are also required to contribute to the costs for public defenders, state’s attorneys and prosecutors, juries, jail boarding, and prosecution. Judges can also add on unrelated surcharges for a wide range of causes, including sheriffs’ retirement funds, law enforcement training, crime victims’ restitution funds, brain and spinal cord injury programs, teen courts, children’s advocacy centers, and rape crisis centers, to name a few.[11] In Cape Girardeau County, Missouri, for example, local judges regularly imposed fees of $150-$300 on misdemeanor defendants for the “Cape County Law Enforcement Restitution Fund” (normally restitution funds are for victims of violent property offenses, which are often felonies).[12] Multiple counties in Missouri charge inmates a daily jail boarding fee, ranging from $22.50-$45.[13] These are just some of the examples of fees charged in the four states researched.

Individuals in the criminal justice system must also increasingly bear the costs of probation supervision and other alternatives to incarceration, whether provided by public or private entities. In all four states studied for this report, probationers make regular payments for supervision, in addition to paying their fees, fines, and any restitution costs. Several states place a cap on how much probation agencies, both public and private, can charge, while some states, like Florida, set a minimum monthly payment.[14] In all the states in this report, the payment of costs, including fees to private companies, are a condition of probation. Failure to comply with all conditions of probation can lead to a violation of probation, arrest warrant or criminal summons, hearing, revocation, and potentially incarceration. Efforts to provide alternatives to incarceration through private probation are often also seen as ways to increase revenues for cash-poor courts, placing undue burden on poor defendants and trapping them in endless cycles of criminalization and debt.[15]

The Motivation to Privatize Probation

Many state probation and parole authorities are moving away from supervising misdemeanor probationers, in part due to budget constraints associated with handling the growing probation and parole populations.[16] Under these circumstances, local courts must find alternative means to supervise probationers.[17] Private companies offer cash-strapped courts an appealing alternative by offering supervision services free of cost to the courts, and rely on fees paid by people on probation as their source of revenue.[18]

Florida was the first state to allow private entities to supervise probationers, with the approval of Salvation Army Misdemeanor Probation in 1975, followed by legislation permitting approved private entities to supervise probation in 1976.[19] Missouri and Tennessee followed in 1989.[20] While Tennessee requires private probation companies to apply to a state council for approval before providing services,[21] Kentucky, Florida, and Missouri leave the selection and approval of private probation companies to local courts and judges.[22] There are also few rules or regulations and little to no oversight regarding the qualifications required of company probation officers.[23] Most states that allow the use of private probation companies restrict their use to certain types of crimes, usually misdemeanors and traffic offenses, though Tennessee permits private supervision for felony cases under particular conditions.[24]

The private probation companies studied in this report do not charge the court system for their services, and instead generate revenues from probationers directly, through supervision fees and provision of other services, including drug testing, treatment, classes, and electronic monitoring. These services may be court-mandated conditions of probation. While fee structures may be written into contracts between private probation companies and courts, Missouri statute specifically states that neither the state nor any county “shall be required to pay any part of the cost of probation and rehabilitation services provided to misdemeanor offenders” by private agencies.[25]

In some states, including Tennessee, Florida, and Missouri, private probation companies are permitted to collect costs owed to the court by defendants, such as fees, fines, and restitution. Often, smaller jurisdictions that struggle to maintain personnel to enforce and collect these costs rely on private probation companies. A former director of a Tennessee private probation company claimed the company’s role was to “enforce court requirements and collect fees,” allowing the county to dramatically increase its collections.[26] Kentucky, however, has rules banning private probation companies from collecting court costs and restitution, though they can assist the court by monitoring payment and reporting progress.[27]

In many jurisdictions, private probation companies also supervise defendants on pre-trial release or in diversion programs.

Outsourcing probation supervision appears attractive to many state and local governments because it offers a way to cut operation costs while improving collections of fees and fines.[28] Small jurisdictions may find it expensive to maintain a probation system for their own limited caseload, while private probation companies can offer their services to multiple counties. There is little evidence to prove, however, that private companies save courts money or even improve collection rates.[29] Lieutenant Joe Purvis, an officer in the Giles County Sheriff’s Department in Tennessee, explained that his office is required to deliver warrants and arrest individuals who are not complying with probation requirements. He also said that he does not believe that private probation companies are any more effective than state agencies at getting people to pay their fines and fees, but that private companies cost the government less.[30]

Judges can waive probation supervision fees for those who cannot afford to pay, even when supervised by a private company. However, this is usually left to the discretion of the judge or probation company, and rarely requires consideration of objective factors, such as employment status or income of the probationer.[31] When observing court proceedings for this report, Human Rights Watch saw situations in every state researched where even though a court determined that a probationer was indigent for the purposes of appointing a public defender, it did not waive, or even reduce, their supervision fees or other costs.[32] Judges and defense attorneys interviewed for this report consistently said that private probation fees are seldom waived. Judges expressed concern that waiving private probation supervision fees would negatively impact the companies as they rely on these fees to operate.[33] Defense attorneys reported that supervision fees for felony offenders, which are almost always handled by state probation agencies, were much more likely to be waived than in misdemeanor cases. The perverse result is that misdemeanor offenders can end up paying more for probation supervision than felony offenders.[34]

Kentucky: Regulation without Oversight In 2000 Kentucky created relatively comprehensive regulations of private probation companies through amendments to the Supreme Court Rules, which clearly outlined that private probation companies should only be used when probation supervision cannot be performed by a government agency, a non-profit group, or volunteers.[35] The Kentucky regulations set guidelines for avoiding conflict of interest for judges assigning defendants to supervision by a private company, provided for pro bono and sliding scale fee cases, established court oversight of fee schedules, prohibited the collection of court costs and fines by private probation, removed any discretion of probation officers over terms or conditions of probation, and ensured that employees of private probation companies do not sit in the section of the courtroom reserved for attorneys, court personnel, and litigants (or “the bar”).[36] The rules were amended in 2016 to include more comprehensive reporting requirements by private probation companies to district courts, establish confidential complaint mechanisms, and assure that probation is never revoked for inability to pay fees.[37] Though the rules do not encompass all aspects of transparency, regulation, and oversight, they do provide some of the most robust rules compared to the other states researched for this report. When the amended rules went into effect in January 2017, at least five counties chose to end their use of it Kentucky Alternative Programs II, Inc. (KAP), the largest private probation company in Kentucky. Surprisingly, the judges in these counties discontinued private probation supervision not as a result of the 2016 amendments, but rather the realization that such regulations existed at all. Though these rules had been in place for 17 years, judges had either not been aware of their existence in the Supreme Court Rules or had failed to implement them. In an interview with local media, one judge cited the requirement created in 2000 to only use private probation as a last resort alternative for monitoring supervision as the reason behind his decision to stop using KAP in 2017.[38] The county prosecutor in Lincoln County indicated that the decision may have had something to do with the sliding scale fee requirement.[39] Though these measures had been in the rules for 17 years, lack of state oversight and enforcement meant they had not been implemented. Though some judges in the state have taken note of the rules and adjusted their practices accordingly, Human Rights Watch observed continued violation of the rules in 2017 by a number of judges. It was not uncommon to see private probation officers attending court in front of the bar. Interviews with public defenders and prosecutors revealed that some judges used private agency supervision in almost all cases involving misdemeanor probation, without consideration of non-profit, volunteer, or government agency alternatives. One local lawyer in Shelbyville, Kentucky, said that alternatives to private probation had never been part of the consideration, and that an earlier competing probation agency had been forced to close operations.[40] Human Rights Watch and the American Civil Liberties Union (ACLU) of Kentucky sent requests to 100 county judges across the state for information on the private probation practices they are meant to oversee.[41] Approximately 70 judges responded in either writing or by phone.[42] Responses highlighted the gaps in oversight. For example, in their responses judges provided lists of clients to whom they provide free, or reduced, sliding scale fees that the private probation companies submitted on a monthly basis. Under Kentucky law, these lists should include all pro bono clients referred to the private probation company by that district court. However, the lists were not specific to the responding judge’s jurisdiction, they were the same across counties and districts, including many clients not from the responding judge’s jurisdiction, creating misleading information about how many individuals are actually receiving free probation supervision services in each jurisdiction. In addition, the KAP pro bono list contained only nine names in April 2017, and eight unique names in May 2017.[43] At that time KAP operated in at least 15 counties and supervises thousands of clients, but fewer than 10 of their current clients had had their fees fully waived. Several counties using KAP did not have a single pro bono client. No judge provided information on rejections of pro bono referrals, meaning the judge made no pro bono recommendations or the information was not provided. In their responses to records requests, not a single judge or clerk flagged this issue in KAP’s reporting. This report argues that state governments and courts using private probation must adopt robust regulations and practices. While states like Kentucky have taken an important first step by creating rules, without monitoring and oversight, rules will not have the intended effect of protecting probationers from potentially abusive private probation practices.

 

Inherent Conflicts of Interest

Private probation companies rely on the fees paid by people on probation, potentially creating incentives for companies to increase the number of paying clients and extend the period of time that probationers are supervised. Conversely, the system does not incentivize reduced fees or waivers to ensure that poor individuals can actually afford to pay expenses; any such reductions mean that the company loses revenue. Probation companies also profit from other services, such as monitoring devices, courses, and drug testing, which can create real and perceived conflicts of interest if private probation officers have any discretion in recommending or requiring these services.

The role of private probation companies in recommending sanctions for violations of probation also gives rise to the perception of conflicts of interest, particularly when it involves longer supervision periods or additional conditions that materially benefit the company.[44] In a Bay County, Florida, court, Human Rights Watch observed defense attorneys and public defenders negotiate sanctions for probation violations with a company’s private probation officers, followed by a simple sign-off by the prosecutor and judge. In other courts in Missouri and Tennessee, Human Rights Watch observed private probation officers testify in probation revocation hearings. This gives immense power to private probation officers, who stand to benefit both their companies and themselves with their recommendations for sanctions on violations of probation.

Courts’ reliance on fines and fees can also raise questions of conflicts of interest. An examination of the issue by the Brennan Center for Justice, a nonpartisan law and policy institute, noted that “when courts are over-dependent on fees, such reliance can interfere with the judiciary’s independent constitutional role, divert courts’ attention away from their essential functions, and, in its most extreme form, threaten the impartiality of judges and other court personnel with institutional, pecuniary incentives.”[45]

Major Private Probation Companies in Florida, Kentucky, Missouri, and Tennessee

Many private probation companies are small operations, serving anywhere from one to a handful of counties, with a few notable exceptions in Florida and Kentucky. It is very difficult to get information about the industry as transparency around companies and their operations differs by state but is largely limited to voluntarily disclosed information. While government agencies generally have to provide certain public records under freedom of information laws, private companies, including private probation companies, are often exempt from these mandatory disclosures.[46]

Policies and practices vary drastically between companies. For example, one Missouri company reported a sliding scale for clients who are indigent or on disability payments.[47] PSI Probation and Tennessee Correctional Services (TCS), both in Tennessee, implemented policies to ensure that payments owed to the court, including fines, fees, and restitution, are paid directly to the clerk, even though it is not required under state law.[48] TCS stated, in response to a Human Rights Watch questionnaire, that they did not adhere to directives to file probation violations for failure to pay court costs, fines, or program fees, in part because “it would have been the wrong thing to do,” and in part because it was unlikely that local judges would have issued arrest warrants solely for a failure to pay violation.[49] Some private probation officers and owners have expressed concerns about the financial element of private probation.[50] While some companies are taking steps to address the worst abuses of the private probation system, other companies are not. The recommendations in this report are aimed at creating rules and regulations that prevent abuses across the industry.

Florida

A full list of private and government probation agencies operating in Florida is maintained by a non-profit organization, which it makes publicly available.[51] While many counties in Florida rely on county agencies or sheriff’s offices to supervise all probation, a number also refer probationers to private entities, including non-profits like the Salvation Army and the Advocate Program.[52] Two of the main for-profit probation companies operating in Florida are Judicial Correction Services, LLC and Professional Probation Services, Inc., both of which also operate in Georgia.[53] The two companies have recently come under common ownership, while still operating under separate names, creating the largest private probation company in Florida.[54] Florida Probation Service is a smaller company serving Bay, Gulf, and Jefferson Counties.[55]

Kentucky

Kentucky similarly does not publish a full list of the companies operating in the state. Human Rights Watch, in partnership with the ACLU of Kentucky, requested private probation records from nearly all county judges in the state (more information available in Appendix VII).[56] Based on the responses to that request, it is clear that Kentucky Alternative Programs II, Inc. (KAP) is the largest private probation company in the state, operating in approximately 15 counties.[57] Other companies operating in Kentucky include CDS Monitoring, Inc., Commonwealth Mediation Services, Inc., Southern Kentucky Monitoring Services, LLC, Time Out Community Counseling and Correctional Services, LLC, and You Turn Court Monitoring Service, LLC.

Missouri

Missouri also does not publish a full list of probation companies operating in the state. Local operations serving one or two counties seem to predominate. The Missouri companies primarily discussed in this report are Private Correctional Services, LLC in Cape Girardeau County and Supervised Probation Services, LLC in Pike County, but others include at least three companies bearing the name Private Probation Service in different parts of the state,[58] as well as Outreach Consulting and Counseling Services, Inc.,[59] Eastern Missouri Alternative Sentencing Services, Inc.,[60] and Court Probationary Services, Inc.,[61] among others.

Tennessee

While Tennessee requires private probation companies to obtain permits to operate, the state does not publish information on where companies are operating. Since 2005 Tennessee has issued approximately 75 permits to private probation companies, though only 33 were active as of January 2018.[62] Community Probation Services, LLC and Probation Services Incorporated both operate in Giles County and are described in greater detail in this report.[63]

 

 

The Scale of Private Probation in Tennessee Tennessee gathers information on how many people private probation companies supervise every year, in part because the state oversight agency, the Private Probation Services Council (PPSC), charges probation agencies a licensing fee per probationer every quarter.[64] Based on PPSC’s records of its licensing revenue, Human Rights Watch was able to calculate the average number of people under private probation supervision every year, provided in the table below. Tennessee state statistics on criminal convictions do not differentiate between misdemeanors and felonies, but the total number of post-trial convictions and guilty pleas are provided in the third column as a reference.

 

Fiscal Year (July 1 – June 30)	Average # of private probationers	Total criminal cases (felony and misdemeanor) with guilty pleas or convictions[65]
FY 05-06	29,966	81,208
FY 06-07	30,749	86,607
FY 07-08	31,565	87,236
FY 08-09	29,651	86,237
FY 09-10	34,432	84,332
FY 10-11	34,572	87,904
FY 11-12	33,096	89,274
FY 12-13	32,661	86,053
FY 13-14	31,787	81,130
FY 14-15	31,515	78,447

 

II. The Heavy Burden of Private Probation

Probation is an alternative to incarceration, particularly for minor crimes and nonviolent offenses. Probation allows individuals to reduce their time in jail, stay in their homes, keep their jobs, retain custody of children, and continue their lives while under supervision.[66] The objectives of probation include ensuring that the individual does not offend again, has access to the necessary treatment and support for rehabilitation, and pays restitution to any victims of the crime.[67] Since it allows individuals to remain at liberty, probation can be particularly crucial to prevent financial ruin for individuals living in poverty.

However, when probation is accompanied by excessive costs and conditions, it can quickly become a destabilizing force, undermining the intended objectives.[68] Individuals with adequate financial resources to pay court costs, probation fees, and the costs of additional probation conditions will not face the same challenges as an individual living in poverty, who may not be able to comply with probation conditions, and thereafter face arrest, probation revocation hearings, incarceration, and the long-term professional and personal consequences of a longer criminal record.[69] Private probation, without adequate regulation and oversight, can push the poor into indebtedness and have escalating consequences, including criminal repercussions, for failure to pay and meet conditions —fostering conditions for recidivism.

Probation companies have no incentive to provide meaningful rehabilitative services for which they do not receive a fee, such as supporting probationers to find housing, employment, transportation, child care, or mental health services. Quarterly reports from PSI Probation in Giles County, Tennessee, state that company probation officers allocate only 30 minutes per active client per month.[70] Probationers interviewed for this report said they spent 15 minutes or less speaking with their probation officer, and did not receive any form of support or advice for their daily needs. In Dyer County, Tennessee, outreach from local religious missions to probation officers has resulted in partnership to provide basic services, like transportation, job search resources, drug treatment, and other community services, but none is provided by private probation directly.[71]

No Choice in the Matter

Criminal defendants often settle their cases through guilty pleas, which can include private probation supervision. Misdemeanor defendants rarely benefit from the full judicial process, with the vast majority of misdemeanor convictions being reached through plea agreements.[72] Plea deals can be beneficial in some cases, saving both the defendant and court system time and resources. However, the pressure to accept a plea deal and the inability to negotiate specific terms, such as the cost and conditions associated with private probation, can lead to unjust outcomes.[73] In addition, when a defendant is pressured to accept a plea agreement, regardless of whether it includes an admission of guilt, it often creates a criminal record that has long lasting implications on employment, housing, and access to government services.

Prosecutors have a great deal of discretion in formulating and offering plea deals. In many misdemeanor courts processing large numbers of cases every day, prosecutors will offer “standard deals,” and in the four states researched, this typically includes probation when the offense carried the possibility of jail time.[74] In many of the counties in these four states, criminal defendants have only two options: supervision by a private probation company, with all the associated costs, or going to jail. If probation is part of the plea deal, the defendant must accept private supervision. This is often incorporated into contracts with private probation companies. For example, Cape Girardeau County in Missouri has a contract with Private Correctional Services, LLC (PCS) that states that the judicial district “shall utilize PCS as an exclusive provider for all above Probationary and Pre-Trial services and programs.”[75] While some counties may have contracts with multiple private probation agencies, like Pulaski County in Tennessee, which employs two private probation companies, defendants are still faced with the choice of supervision by a private company or incarceration.

Kentucky law requires courts to consider alternatives before assigning a person to private probation supervision, but lawyers practicing in Kentucky told Human Rights Watch that the standard practice was to put everyone on private probation, often through a plea deal.[76] Courtroom observation in Shelbyville, Kentucky confirmed this prosecutorial approach: in a marijuana possession case, the prosecutor informed the defendant of the minimum jail sentence and $250 fine, and then offered probation in place of the sentence and fine, arguing that probation would likely cost her less than the $250 fine. No one explained to the defendant, however, the various monetary and financial requirements of probation before she accepted the plea deal.[77] While prosecutors may think they are offering defendants the best deal, defendants themselves are in the best position to assess and weigh in the balance the time and resources required to successfully comply with probation terms, and the potentially severe consequences of violating those terms.[78]

Many counties rely heavily on plea deals to settle misdemeanor cases. In Cape Girardeau County, Missouri, misdemeanor defendants pleaded guilty in 80 percent of cases, compared to the 1 percent who go to trial and 18 percent whose cases are dismissed in FY 2016.[79] The Missouri state average for misdemeanors settled by a guilty plea was 62 percent, compared to 1 percent by trial in FY 2016.[80] In Bay County, Florida, of the 6,467 county misdemeanor cases disposed of in calendar year 2015, 3,535 — or about 55 percent — are settled in a guilty plea before trial. Only 15 cases went to trial, with 10 reaching a final verdict by trial. The remainder were dismissed or a plea agreement was reached during trial before its conclusion.[81] The Florida state average for county misdemeanors settled by plea agreement in the same time period was 57.3 percent, with nearly 30 percent of cases dismissed.[82] Tennessee statistics do not differentiate between misdemeanor and felony cases, but for all Giles County criminal cases in FY 2015, 62 percent were resolved through guilty pleas, 33 percent were dismissed, and only two cases went to trial.[83] The Tennessee state average for guilty pleas in county court criminal cases was 45.9 percent in FY 2015-2016.[84]

The choice to accept a plea deal is influenced by multiple factors. Misdemeanor defendants, whether guilty or not, are in the difficult position of either risking trial, including all the associated costs and fees and the possibility of incarceration, or choosing release under court-imposed conditions. A trial and possible incarceration could also negatively affect employment, housing, and family obligations. Many individuals therefore elect to take a guilty plea and private probation supervision, yet often without complete information about the future financial burden that it carries.[85] Statistics on the number and rate of misdemeanor offenders supervised by private probation are not available. However, all the probationers interviewed for this report stated that to avoid a lengthy and expensive trial and/or serving the full sentence, they had no choice but to accept probation and its accompanying conditions and fees.

The financial choice between probation and incarceration becomes even starker in jurisdictions with “pay-to-stay” or jail boarding arrangements, whereby an inmate can be charged for time in jail. Jail boarding fees are permitted in Florida,[86] Kentucky,[87] Missouri,[88] and Tennessee,[89] with requirements varying on taking the individual’s ability to pay into consideration. In Cape Girardeau County, Missouri, the county court regularly charges $22.50 for every night a defendant spends in jail. Giles County, Tennessee, charges both a $25 jail fee and a $25 jail building tax. Kentucky defendants are told that they can “sit up,” or substitute, certain court costs and fines with jail time at the rate of $50/day, but must also pay a jail boarding fee of $20-$30/day.[90] Kentucky also offers defendants concerned about losing their jobs the option to serve jail sentences on weekends, one or two days at a time, but they may have to pay extra for that option.[91] Boarding fees can be assessed for pre-conviction jail time, and do not include the cost of purchasing basic toiletries, telephone calls, and other commissary expenses.[92]

Defendants find themselves between a rock and hard place when “choosing” between a trial with numerous court fees and possible jail time with boarding fees, or taking a plea deal with private probation and other conditions attached. This creates steady demand for private probation companies.

Onerous Costs of Private Probation Supervision

The cost of private probation often has a profound impact on individuals struggling to make ends meet. In addition to monthly supervision fees, probation may include myriad other requirements, such as drug testing, courses, treatment, or community service, all of which carry additional fees and costs. Probation companies may also charge a variety of administrative fees for enrollment, reinstatement, records, and late or partial payment fees. These same fees can have wildly different impacts for people depending on their income. Those with lower incomes may give up basic needs, like food, housing, childcare, and medical care, in order to pay fees.[93]

In the states researched for this report, private probation monthly supervision fees generally run between $30 and $60, varying by state, county, and individual. This fee is assessed by the private probation company and may not always appear in official court documents, but payment is generally a condition of probation. Private probation companies may also apply surcharges, like start-up and reinstatement fees, ranging anywhere from $10-$25. Individuals who are unable to pay the full amount of their court costs may be put on a payment plan, whose installments are paid alongside probation fees. In some states, private probation companies also collect court costs and restitution for the courts, in addition to fees owed directly to probation companies, and may have the discretion to apply payments to different requirements as they see fit.[94] In Tennessee and Florida, some private probation companies have ensured that offenders pay company supervision fees first, before fines and fees owed to the court.[95]

Avoiding further criminal activity is a common condition of probation.[96] Probationers may be required to report any contact with the police to their probation officers, though in general only a new criminal charge would result in a probation violation.[97] In Kentucky a common condition of probation requires probationers to obtain a periodic criminal background check through the probation company. While state agencies could conduct these checks at no cost, private companies charge probationers for the service.[98] Kentucky Alternative Programs charges $20 for hardcopies of criminal records, and CDS Monitoring charges $35 for each background check.[99]

In some states, the period of supervised probation may be shortened if the probationer pays off all fees, fine, and other costs. Conversely, if a person does not complete their payments within the probation period, judges may extend supervised probation until all debts are paid.[100] This means that the poorest defendants, who take the longest time to pay their court debts, will have the highest amount of supervision fees. Extending the period of time on probation also increases the likelihood that the individual will somehow violate probation terms, which may result in further fees or additional criminal consequences. Those who can pay off their debts will benefit not only from less monitoring, and fewer risks of violating, but also from fewer probation fees.

Supervision in all the states researched may include random drug testing for which the probationer must pay, even when the individual was not charged with a crime involving drugs or alcohol. Drug tests can cost $12 for simple urine analysis to between $35 and $85 for more complex tests such as independent laboratory testing to confirm positive results. According to probationers interviewed, private probation officers often conduct random drug tests themselves.

Missouri probationers supervised by Private Correctional Services told Human Rights Watch that after a positive result in a random drug test, private probation officers required them to enroll in an intensive drug testing program, in some cases also run by private companies. Probationers were required to call a hotline every morning to see if they were selected to be tested that day. Probationers reported being tested from several times a month to several times a week, incurring charges of approximately $20-$50 per test, depending on the testing facility.[101]

Courses and treatment programs are also common probation requirements. Private probation companies in Tennessee and Florida sometimes provide these courses themselves, but in all states researched for this report, they are responsible for monitoring successful completion of courses and treatment as an element of probation supervision. These programs may be critical tools for rehabilitation and preventing individuals from re-offending, but their steep cost means that only those who can afford them can benefit. For example, in Florida an individual’s driver’s license will likely be revoked after a first conviction for driving under the influence (DUI). In order to have the license reinstated, individuals are required to complete DUI school, which is often included as a condition of probation. In Bay County, DUI school costs $284 for a first offense and $430 for a second.[102] Probationers may also be required to complete a Victim Impact Panel course, which costs $49.99 in Bay County.[103] In Missouri, the comparable required course is Substance Abuse Traffic Offender Program (SATOP) for license reinstatement.[104] The SATOP assessment fee alone is $375, followed by specialized services, like the basic education program for $130 or the $1500 intensive program. While these fees may be waived by the court, most probationers interviewed who had undertaken these programs paid the full cost. More intensive treatment may also be required, such as at residential treatment facilities, and it is the responsibility of the probationer to cover the costs, either out-of-pocket or through insurance. Regulations on when intensive treatment can be ordered are often lacking or not strongly enforced. In one case, a Missouri court ordered a probationer to find and complete inpatient alcohol treatment, though for 16 months he had been wearing a continuous alcohol monitor, which according to him had showed little alcohol consumed during that time. With no apparent alcohol abuse, inpatient facilities were reluctant to accept him, he said, making it nearly impossible to comply with the court order.[105] When a probationer cannot complete a course or treatment, a private probation officer is charged with issuing a violation of probation.

In domestic violence and other violent misdemeanor offenses, judges may require defendants to complete domestic violence or anger management courses, and private probation companies may provide these services directly. The commonly mandated batterers’ intervention program may run for six months to a year, with costs ranging from $500-$1000, depending on the length set by the court.[106] These programs attempt to educate and prevent further domestic violence, with critical public safety implications. However, the steep costs associated with batterers’ intervention and other domestic violence programs make them not universally accessible, excluding the poorest defendants.

The use of various kinds of electronic monitoring devices may also be required under probation. They may include location monitors that restrict a probationer’s movement to specified locations like home and work; continuous alcohol monitors that track alcohol levels through sweat; and ignition interlock devices, which require breathing into a device periodically to start or keep a vehicle running. The costs of monitoring devices are among the most expensive requirements of probation, and their installation can be made a precondition to be released from jail or to drive a vehicle. They may be provided by private probation companies directly,[107] or through third-party service providers. These devices often require a one-time installation charge that can vary considerably depending on location, costing anywhere between $50 and $150, and in some cases may also require a comparable removal fee.[108] Monthly monitoring fees generally range from $400-$500.[109] Ignition interlock devices may also require monthly or bimonthly calibration, adding on another $60-$150 for every check.[110]

While states may have some restrictions on the use of monitoring devices, judges often have discretion on whether to require or extend the time period for use of these devices, increasing the associated costs. In the case of Ben, for example, he received a first-time DUI conviction, and a Missouri judge required two years of supervision with both an ignition interlock device and a continuous alcohol monitor, generally only required for a second or subsequent offense under Missouri law.[111] While the prosecutor initially requested that Ben wear the alcohol-monitoring device for 90 days, he has not been allowed to remove it since September 23, 2015, and continued to wear the ankle device as of August 2017.[112] As part of Ben’s sentence, the judge required him to spend 10 days in jail, but the alcohol-monitoring device had to be installed prior to incarceration. This meant that Ben paid $12 a day, or $120 in total, for the use of the alcohol monitoring device while in county jail, where he should not have had access to alcohol.[113] The judge also required Ben to submit to regular testing, participate in alcohol treatment programs, and pay boarding fees for his 10 days in jail. Ben estimates that he has paid over $13,000 as of March 2017 for all the required conditions of his probation, apart from court costs, fines, and supervision fees. In January 2017, Ben was found to be in violation of the terms of his probation for consuming alcohol.[114] His probation was reset for an additional two years, carrying all the same conditions as his initial probation, meaning that he may have to wear and pay for the continuous alcohol monitoring and ignition interlock devices for over three years.

Monitoring devices can serve an important purpose in preventing intoxication and driving under the influence, potentially saving lives. Yet the prohibitive costs of using them mean that the freedoms these devices afford are only available to those who can pay. Ben could afford to pay and therefore did not serve a full sentence in jail or lose the ability to drive his vehicle. Those who cannot afford these payments may have to find alternative transportation options, or serve their full jail sentences. In Ben’s case, a Class B misdemeanor in Missouri, a full sentence would have carried a maximum sentence of six months in jail.[115]

Even community service requirements, often included as a probation term, may carry costs. In some states, private supervision companies charge probationers a fee to arrange and supervise community service or provide “community service insurance.”[116] Some states, such as Florida, offer the ability to substitute court costs with community service or work programs. However, these programs often do not cover all costs, like public defender’s and prosecutor’s fees, nor do they cover fees paid to private agencies, like probation supervision, drug testing, and courses or treatment. While regulations call for disabilities to be accommodated under these programs, Human Rights Watch interviewed some probationers with disabilities who felt unable to fulfill the duties assigned to them.[117] In other cases, court costs were so high that fulfilling them through community service alternatives would have interfered with the probationers’ ability to maintain their jobs. In one case in Bollinger County, Missouri, a first-time misdemeanor offender who was unable to pay his court costs was authorized to substitute them with community service, but was ordered to complete 101 hours within 21 days.[118] At over 30 hours of community service a week, combining community service with a job would be extremely difficult. An employer in Bowling Green, Missouri, described the demanding schedule of one of her employees who is currently under private probation supervision: child care, a full-time job, regular supervision visits, court mandated courses and treatment, community service hours, and if delinquent in payments or other conditions, court dates to address violations of probation. While some employers may be understanding, these demands on a probationer’s time make it difficult to be a consistent employee and some struggle to keep their jobs, leading probationers to conclude that the system is structured to make them fail. A probationer in Missouri making $8 an hour and struggling to make payments for private probation and drug testing said: “They’re trying to make sure you go to jail.”[119] Another former probationer in Tennessee described the system:

I think that the system is set up for you to fail, because I do feel that way. I do. Once you get in there, it's like a never-ending cycle. It just keeps going. Once you get on probation, especially, it's one fee after another and if you can't pay then you go to jail, and then once you're in jail and then you get out, you have more court fees, and them more fees, and more, and more, and more. It never ends, and that's why some people would just rather go to jail and just deal with it that way.[120]

 

What’s the Alternative? Privatizing probation is not the only option available to local courts. If state level agencies are unable or unwilling to supervise misdemeanor and traffic offenders, other public agencies can take their place. Roughly half of Florida counties rely on their sheriff’s offices or county probation offices for these services.[121] Some counties in Kentucky rely on court clerks, county attorney’s offices, or Probation and Parole, which generally handles felony cases, to supervise misdemeanor probation, often with lower supervision fees than private agencies.[122] Other Kentucky counties do not require any type of supervision for misdemeanor or traffic probation, and therefore do not require probationers to pay any type of supervision fees. A judge in Daviess County, for example, requires that probationers not get any more criminal charges or fail to make payments toward their court costs, but instead of requiring probation these terms are monitored through periodic court hearings.[123] Differences in the approach to probation supervision mean highly divergent outcomes for individuals facing similar charges in the same state or even county. Within Daviess County, for example, one judge does not use private probation, while another judge uses Kentucky Alternative Programs to supervise some probationers. Depending on what county a person is charged in, or which judge decides their case, the financial outcomes for the same crime can vary substantively based on whether they are sentenced to supervised or unsupervised probation.[124]

No Relief Available

Several probationers interviewed for this report said they survive on fixed incomes or disability payments that barely cover their basic expenses. Every month they were left with the difficult decision of either paying their monthly supervision fees or paying for rent, food, utilities, health care costs, and childcare. Many expressed fear of losing their homes, electricity, or custody of their children. In almost all cases, probationers said they had communicated these concerns to their probation officers, and while some were granted additional time to make payments, few said they were granted reductions or waivers of their supervision fees.

Judges or private probation companies can reduce or waive fees for indigent defendants, but in many states they are not required to do this and in practice reducing fees is uncommon.[125] Human Rights Watch observed courtroom proceedings in various counties in which judges would ask defendants how much they could afford to pay every month toward court costs, but usually set a mandatory minimum monthly payment for all defendants. While judges allowed defendants to pay court costs and restitution on payment plans, the total amount was not reduced to reflect their financial situation. Probation supervision fees were rarely, if ever, reduced or waived. When defendants expressed concern about being able to afford the monthly minimum payment for court costs, judges would suggest “sitting out” the sentence in jail instead.[126]

Kentucky is the only state researched for this report that requires supervision fees be assessed on a sliding scale based on income.[127] Private probation companies in the state must also accept all pro bono cases referred to them by the courts, or provide a reason for rejecting a referral.[128] While it is difficult to assess how this rule is implemented across the state, an open records request disclosed the number of pro bono and sliding scale clients accepted by the biggest private probation company in Kentucky, Kentucky Alternative Programs II, Inc. (KAP). As of November 2017, KAP claimed to supervise over 4,000 individuals in 15 counties across the state.[129] In the April and May 2017 disclosures to courts, they reported having only eight pro bono clients and 172 sliding scale clients, representing less than 5 percent of their reported caseload.[130] KAP provides documentation to courts indicating that they use a sliding scale for individuals who earn below 200 percent of the federal poverty guidelines, and waive fees entirely for people at or below 100 percent of the federal poverty guidelines.[131] While they do not report how many of their clients fall below that level, 22.7 percent of adults in Kentucky between the ages of 18 and 64 were below 125 percent of the poverty level.[132] Statewide approximately 17.2 percent of adults were below 100 percent of the poverty level, yet only eight out of the thousands of individuals supervised by KAP were pro bono clients in May 2017. The significant gap indicates that many people are either unaware of the sliding scale requirements in the state or unsuccessful in requesting reduced fees.

While fee reductions are possible in Tennessee, significant barriers exist for individuals attempting to secure them. Almost all probationers interviewed by Human Rights Watch said they were not aware of any procedure to reduce or waive supervision fees. In other cases, probationers were dependent on private probation officers to approach the court for a fee reduction or waiver. If probationers try to approach the court directly, but do so after sentencing, few have access to counsel and therefore may not be aware of their legal rights and options.[133] In a Giles County, Tennessee, court, a probationer said that a judge told her that if she could not make minimum payments, she could discuss it with her probation officer, but many probationers in the same county said they had tried that approach without success in adjusting fees to an amount they could afford.[134] Lt. Joe Purvis of the Giles County sheriff’s office has observed other cases where individuals have told a judge that they could not afford probation fees, saying, “We have local judges that will say things like, ‘if you can afford to buy cigarettes, you can afford to pay your probation fees,’ and it’s kind of hard to argue with that…cigarettes are expensive, and if you can afford to buy marijuana, you can afford to pay your probation fees.”[135] Private probation officers have a clear conflict of interest in considering requests for fee reductions: their salaries are funded from supervision fees.

Providence Community Corrections, Inc. (PCC), a private probation company that operated in Rutherford County, Tennessee, until 2016, had established procedures to allow probationers to request fee waivers and reductions, but that did not mean they were any easier to obtain. The company recognized that some probationers may not be able to afford their fees and provided a document to its clients on how to request reductions in fines and other costs.[136] Yet PCC required individuals to report and make payments for several months before they could be eligible for financial relief. Even then the process was unlikely to be successful. The company made it clear in its instructions to clients that “PCC will most likely deny your request to reduce costs and fines after assessment is completed.”

The instructions suggested that clients file a motion with the court, which costs $25, for reduction of their fines and fees. The instructions also state, “the Judge will ask you very personal questions about your finances.” PCC closed its operations nationally in 2016 under scrutiny that followed a class action lawsuit, which alleged that the high cost of private probation – and flawed procedures to reduce fees – resulted in debtors being imprisoned.[137] The suit noted that clients were mostly unsuccessful in getting their fees reduced unless they had a lawyer’s assistance, despite PCC advising its clients that they would not need a lawyer to complete the process.[138] The class action suit was settled in September 2017, with PCC agreeing to pay $14 million to individuals in Rutherford County harmed by their practices.[139]

Crystal Bradford experienced the inflexible private probation system in Tennessee. Bradford resides in rural Tennessee with her five children and husband. She has an autoimmune disorder and experiences chronic pain, and as a result is on Social Security Disability Insurance, receiving a fixed income of $524 per month. That barely covers the $475 monthly rent payments for her family’s cramped trailer. Her husband provided for the rest of their family’s expenses. In 2016 Bradford was charged with shoplifting at Walmart when the person accompanying her stole a bottle of infant Motrin. When store security stopped them, Bradford told Human Rights Watch that an agent found a case of water on the bottom of the cart for which they had not paid.[140]

Bradford said she explained she would have been happy to pay for the items; she was instead charged with two counts of theft. She pleaded guilty and was sentenced to 11 months and 29 days on probation, the maximum sentence allowed in Tennessee for a misdemeanor, under the supervision of a private company. She was initially required to report to her probation officer every week. Her minimum mandatory payments were $25 a week toward her court costs and almost $50 a month in probation supervision fees. The judge asked her in court if she could afford to pay these costs and fees and Bradford explained her situation, saying she may not be able to afford to make these payments. Instead of reducing her fees, the judge, according to Bradford, told her to try making payments for a while, and if she was unable to keep up with them, she could speak to her probation officer about it.[141]

Bradford described the visits with her probation officer as someone who “seemed to be happy about someone being in trouble.” She said her probation officer was surprisingly upbeat, responding to Bradford’s concerns about keeping up with her payments by saying, “If you don’t have all of your fees paid by the end of the month or at the end of probation, then just let me know and we’ll just sign the arrest warrant.” Bradford said her probation officer “didn’t seem to care at all” about her but rather seemed focused on collecting money, repeatedly telling her that she would receive a violation if she did not pay her probation fees. When making regular payments became difficult, Bradford tried to speak with her probation officer, but she said that the officer was not concerned about her situation. No effort was made to help her successfully complete probation. Bradford was never able to get her costs reduced. Bradford describes the constant stress of that period, saying “I felt like I was really going lose everything. I was worried that I was going be in jail, and I was going lose my kids. That's all I could think about was, ‘I'm going be homeless, my kids are going be in foster care.’ I worried about this constantly. My hair was falling out. It was just stress, constantly. I stayed sick all the time.”[142]

Though Bradford’s offense was not drug-related, she was also subjected to regular drug testing. She said that some of the medications she took for her autoimmune disorder caused her to falsely test positive for THC, the active substance in marijuana.[143] Bradford informed her probation officer of her health condition and the medications she was taking, but the officer ordered her to get supplemental drug testing on her hair, which carried an additional cost.[144]

Bradford had to start selling her personal possessions, including her family’s washer and dryer, jewelry, her children’s toys, and electronics, to collect enough to pay her legal and probation costs. Given the tight budget her family lived on, the household was forced to sacrifice some of their daily needs. When Bradford was left with no other option and was concerned she might go to jail, her pastor and church congregation helped with the remainder of her payments. Bradford said: “Without the help of my church, I believe that I would have lost my home, my children, and really everything that I had, because I knew that I could not do this by myself, and my kids had no one else.”

After completing her payments, Bradford was placed on unsupervised probation. She no longer had to pay fees or take regular drug tests. Bradford has since completed probation and qualified for federal means-tested housing assistance. As of March 2017, she was looking for a larger home with enough space for her children, and hoping to take better care of herself after the toll that a year of stress, fear, and worry took on her.[145]

 

Felony Probation: a Financial Comparison Felony probation is generally regulated more rigorously than misdemeanor probation, including controls for the fees imposed on probationers. In most states, private probation companies are only authorized to supervise in misdemeanor cases. Even in states like Tennessee, where private probation companies can supervise in certain categories of felonies, most felony offenders are supervised by the government probation and parole agency. Supervision fees in felony probation are not uncommon, though they are generally lower than in misdemeanor probation and are more likely to be waived by the court. Tennessee, for example, places a cap of $45 for monthly supervision fees in felony cases, while also providing clear requirements for investigating the “financial and other circumstances” of probationers, ensuring that payments will “not exceed ten percent (10 percent) of the offender’s net income,” and waiving fees entirely in hardship cases.[146] In Missouri the cost of monthly supervision for any probation provided by the Board of Probation and Parole had been capped at $60.[147] After studying the fees charged by other states, however, the Board set the standard rate at $30 per month.[148] In contrast to private probation, this is a flat fee that includes the cost of services provided by probation officers and other Department of Corrections contractors, such as “substance abuse assessment and treatment, mental health assessment and treatment, electronic monitoring services, residential facilities services, employment placement services, and other offender community corrections or intervention services designated by the board to assist offenders to successfully complete probation.”[149] In contrast, misdemeanor probationers in Missouri supervised by private companies pay as much as $50 a month in supervision fees, while other services carry an additional price tag. While judges in Tennessee must assess a felony defendant’s ability to pay before assessing supervision fees,[150] the same is not required for private misdemeanor probation. One Tennessee judge told Human Rights Watch: “No judge would waive fees for private probation.”[151] Other judges in Tennessee and Florida echoed this sentiment, saying that waiving companies’ fees would affect private probation companies’ revenues and hence their ability to operate.[152] As a result, an indigent individual facing felony charges may have a better chance of having their probation supervision fees waived or lowered than a defendant charged with a misdemeanor.

III. The Consequences of Not Paying

When the cost of private probation supervision becomes too high, individuals are often forced to find ways to continue making payments under the threat of arrest and incarceration. Private probation companies operate on “user fees” as their primary or sole source of revenue and therefore have a strong incentive to employ all means available to collect those fees, such as requesting arrest warrants for failure to pay. The US Supreme Court has found that it is unconstitutional to incarcerate a person who is truly unable to pay fees, fines, and restitution.[153] In spite of this precedent, many courts and private probation companies still can and do use the threat of incarceration to coerce payment without giving any serious consideration to whether a person is able to pay. Courts in many jurisdictions also incarcerate people for failure to complete probation conditions when they genuinely cannot afford the indirect costs of complying with them, even though those costs can be as or more prohibitive than the fees levied directly from probationers. And beyond incarceration, people on probation face a slew of other serious repercussions when they cannot pay their probation fees and court costs.

Inability to Pay Fees and Fines

Probationers find themselves unable to pay supervision fees and courts costs for several reasons. In some cases, payments are too high to begin with because of fixed incomes, minimum wage jobs, multiple dependents, etc. Others face changes in life circumstances, such as the loss of a job or medical expenses, which raise their expenses and force them to decide which debt to pay first. Probationers in most states reported that private probation officers provided a month or two of leniency if they could not make payments, though they were encouraged to pay some amount rather than nothing.

Many courts routinely make payment of court costs and private probation fees a condition of probation. Failure to pay is then grounds for the private probation officer to issue a violation of probation, considered a technical violation.[154] This differs from a violation that results from being charged with a new crime while on probation. The process of issuing a technical violation differs from state to state and county to county, but often the private probation officer provides a report to the judge stating the grounds for violation. The probation officer may also be able to recommend a course of action, such as continuing the probation, possibly with additional conditions, or revoking probation. In some states, including Tennessee and Florida, a violation of probation leads to an arrest warrant that local law enforcement serves on a probationer, while in others like Kentucky, a technical violation only results in a citation and summons to appear in court. A criminal defense lawyer in Cape Girardeau, Missouri, explained that when probation officers issue multiple technical violations for failure to pay it creates a record of poor performance for the probationer. If a more serious violation later arises – like a positive alcohol or drug test or traffic ticket – the probationer could face harsher consequences, including jail time.[155]

When a probationer is behind on payments, whether to the probation company or to the court, a judge can require the individual to appear in court every month until all debts are paid. These court dates are in addition to private probation reporting.[156] This forces an individual to either pay their fees and costs, or appear in court to explain the reason for the delay. In the case of someone who does not have a car or valid driver’s license, it can be challenging to appear monthly in court, in addition to attending regular probation supervision meetings. Numerous probationers interviewed said they did not always have time to leave their jobs to make these monthly appearances during the day, making it difficult to keep the job that would allow them to pay their debts to the court.[157] Moreover, if an individual fails to appear in court even once, the judge may charge the probationer with failure to appear, set a bond, and issue an arrest warrant.[158]

Warrants lead to arrest and possibly to time spent in jail. Even when they do not result in an arrest, research has found that an outstanding warrant can adversely influence an individual’s life. A 2009 study described how an outstanding warrant can transform normally safe places, like the home or workplace, into spaces that present the constant threat of confrontation with law enforcement.[159]

Similarly, a violation of probation, even for technical reasons, leads to a hearing in which the judge decides whether to revoke probation and impose the original sentence, usually incarceration.[160] Private probation officers often serve as witnesses during revocation hearings to testify to the probation violations.[161] Some probationers fear what could happen if they appear before the court without adequate funds to make payments, and therefore fail to appear. This ultimately leads to further charges, arrests, criminal records, and more court costs, potentially extending the probation period.

Human Rights Watch finds that jailing people only for failure to pay fees and court costs was uncommon in the states we studied, as the threat of incarceration often forces probationers to find some way to pay such fees even when this means sacrificing basic needs. However, incarceration resulting from failure to comply with all conditions of probation due to inability to pay was more common. Many probationers said that they made extra efforts to comply with supervision fees, but were not able to keep up with or save enough for classes, background checks, or monitoring devices.

Most states impose limits on the length of misdemeanor probation, but some judges, following recommendation of private probation officers, have found ways of extending those periods. The most straightforward approach was using a violation of probation as a reason to extend the term of probation.[162] Other judges revoked and reinstated probation, essentially restarting the clock.[163]

Raymond’s case illustrates how casually some judges dole out extensions. Raymond (not real name), a 27-year-old in Giles County, Tennessee, waived his right to counsel and pleaded guilty to simple possession of marijuana and drug paraphernalia (a pipe used to smoke marijuana).[164] His sentence was suspended to 11 months and 29 days on probation with Community Probation Services (CPS). A $400 fine was also levied, alongside court costs and a fee, leaving him owing the court a total of $1705. Raymond lives in neighboring Lawrence County, about 20 miles away, but the court would not allow him to transfer probation supervision to a location in his own county. Each time he reported, he attempted to pay at least $25-50. On several occasions, however, he had been unable to travel to Giles to report and make payments.

Reporting to probation on a weekly basis interfered with Raymond’s ability to hold a job. On one occasion, he reported to probation in the morning with the intent of returning home to work by 2 p.m. However, the private probation employee responsible for drug tests was delayed and Raymond was not able to leave until 4 p.m. He said he lost his job as a result. When he failed to report on other occasions, Raymond received his first violation of probation and a warrant for his arrest was issued. At his probation revocation hearing, the judge gave him a 30-day jail sentence, with probation to be reinstated upon his release and extended for 6 months, or until his costs were paid.[165] Raymond will have to serve the sentence, while still owing fees.

In two jurisdictions researched for this report – Dyer County, Tennessee, and Pike County, Missouri – any unpaid criminal justice debt at the end of a probationary period would not be enforced, but would stay on the books and become due if the individual was later convicted of a crime.[166] Defense attorneys said that in Dyer County, judges will request extensions of probation if fees and fines are not paid in full by the end of the 11 months and 29 days allotted for misdemeanor probation, but if for some reason an extension is not granted before probation ends, the costs will lie dormant until a new charge arises.[167] In an interview in the Pike County courthouse, Allison explained that she had accepted a plea agreement including probation under Supervised Probation Services. She said she had been on private probation for a conviction in 2012, during which time a medical treatment prevented her from making probation payments.[168] During Allison’s first meeting with her probation officer for the new charge, she was informed that she still owed approximately $500 from the previous time she had been on probation, on top of the newest court costs and probation fees. Allison did not have a job at the time and was looking for housing, had recently completed drug rehabilitation, and was caring for a sick child. The judge had not reduced any of her court costs, and to the contrary, had imposed an additional $100 payment to the Law Enforcement Restitution Fund, which supports law enforcement related expenses in the county.[169] Allison said she hoped to keep up with her payments if she is able to find a job, but that no one asked her at any point whether she could afford these costs.[170]

In Kentucky, lawyers told Human Rights Watch that judges would use contempt proceedings to extend probation terms or order incarceration.[171] While observing a courtroom in Kentucky, Human Rights Watch found that judges threatened contempt charges to compel people to comply with DUI school, appear in court, pay fees and fines, and make restitution to victims. In one case a judge initiated contempt proceedings when an individual failed to appear in court to provide evidence that he had completed his community service requirement even though he had less than one hour left to complete.[172]

A young man on probation in Cape Girardeau, Missouri, expressed how stressful and worrisome it was to be monitored for compliance with the numerous conditions placed by his probation terms:

It’s frightening and draining, always worrying whether I have enough money, whether there’ll be any more fees, whether I’ll be able to pay my gas bill this month. And what happens if I don’t have the money to pay them? How much longer will they draw this out? Could they throw me in jail? It starts to spiral to a point that you can’t control.[173]

Proxies for Failure to Pay

Conditions of probation often include requirements that probationers attend classes or treatment programs, and wear monitoring devices. All these cost money, which under private probation as well as many publicly-run models are almost invariably billed to the probationer. While the intent of these conditions is to provide rehabilitative services, they can impose onerous costs on probationers. When probationers cannot pay for and complete these court-mandated conditions, they may face technical violations and significant legal consequences for not complying, including incarceration. Violations for failure to complete probation conditions when a person is unable to pay for those services become proxies for failure to pay.

The US Supreme Court prohibits jailing defendants for failing to pay fines, fees, and restitution when they genuinely lack the means to do so.[174] Human Rights Watch finds numerous cases where individuals were incarcerated for inability to pay for a probation condition. As a result, indigent probationers may face incarceration when they cannot afford a drug test, a criminal background check, or DUI course. In its review of court documents, Human Rights Watch finds a common reason cited for a probation violation was failure to complete conditions of probation. In interviews and in court observation, probationers regularly cited inability to pay as the reason for not completing conditions.

Sarah’s story provides one striking example of how probation companies find ways to violate people for failure to pay by another name. Sarah is a 30-year-old single mother of three young children in Shelbyville, Kentucky. She was charged with theft when she was accused of stealing a phone that was inside a package UPS mistakenly delivered to her home.[175] Sarah was unemployed at the time, and her primary sources of income for herself and her family were monthly payments through Kentucky’s Temporary Assistance for Needy Families (TANF) of $328, Supplemental Nutrition Assistance Program (SNAP, or food stamps) of $771, and housing support. She also carried nearly $700 in medical debt. After assessing her financial situation, the court declared her indigent and assigned a public defender.[176]

Sarah ultimately pleaded guilty to a lesser misdemeanor offense and was sentenced to 12 months’ imprisonment, which was suspended to two years of probation with Kentucky Alternative Programs (KAP). The terms of her probation required her to report to a KAP office for supervision every quarter, to not pick up any new criminal charges, to pay for quarterly criminal background checks, and to “answer all reasonable” questions from her probation officer. She also had to pay her court costs, fines, and fees, which came to approximately $150.[177]

Despite her court-recognized indigent status and being the recipient of means-tested government benefits, the court did not assess whether she could afford the costs of probation supervision, and her fees were not lowered though she said she informed the court about her financial difficulties. Like many others facing unaffordable probation fees, Sarah may not have been aware that she could cite her poverty to demonstrate her inability to pay or request an ability to pay hearing, although the court was already aware of Sarah’s financial circumstances based on her application for a public defender.

At a minimum, supervision would cost Sarah $35 every quarter, but with all the additional charges, including criminal background check costs, she said she would have to pay KAP up to $65 per quarter. At that rate, Sarah would have to pay KAP $520 during her probation term, more than three times the cost of the court’s fees and fines. The court did not waive her supervision fees, and KAP did not include her in its list of sliding scale or pro bono clients. This meant Sarah had to choose between either paying KAP or paying other debts and expenses, such as medical bills and essentials for her children.[178]

Sarah was not able to maintain her payments to KAP. In June 2017 she was brought before the court for not paying her probation fees. However, the official motion to revoke her probation states that she failed to obtain a criminal background check. There are no other reasons cited. Given that her only obstacle to obtaining a background check was money, the sole justification for her violation was that she failed to pay for a background check.[179] Though Kentucky law prohibits revocation of probation for inability to pay private probation fees, probation companies and courts have found a way around this rule by using proxies, such as failure to pay for probation conditions like background checks and drug tests, to threaten clients with incarceration.[180]

In the same court in which Sarah’s case was heard, Human Rights Watch observed a defendant appear before the judge for a payment review hearing. The defendant did not have the money to pay despite receiving several extensions. The judge did not conduct an ability to pay hearing, but rather told the defendant “it’s pay or report,” meaning the defendant could either pay the remaining costs or report to the detention facility that evening. In another case, a defendant was before the judge for not completing a hair drug test. The defendant informed the judge she could not afford the $85 hair drug test. The judge did not respond to this point and simply told her that she would have about a month to complete the test, but did not carry out the required hearing to determine whether her failure to complete the drug test was due to a willful failure to pay.[181] A local defense attorney confirmed that these types of exchanges were not uncommon. He added that when a person does not have money for a background check, a common condition of private probation in Kentucky, it may be considered a failure to report that can result in a violation of probation, which can add to a defendant’s criminal record.[182]

Paul’s case highlights another reason many people fail to complete their probation —fearing the consequences of not fulfilling their extensive probation conditions because they do not have the money, they stop reporting for supervision altogether.[183] Paul is a 25-year old man who got a ticket for driving under the influence while on vacation in Panama City Beach. He accepted a plea deal that included 12 months of supervised probation by Florida Probation Service LLC (FPS), with a $50 supervision fee each month, DUI school, a victim impact panel, 10 days of vehicle immobilization, 6 months with an ignition interlock device, and random urine and breath tests.[184] He also owed $1550 in court costs and fines, and applied to the Bay County Work Program to work off those costs. Paul reported regularly to FPS for several months and made monthly supervision payments. But Paul was having trouble saving enough to also pay for the DUI school ($430), Victim Impact Panel ($50), vehicle immobilization ($100), and other fees. Paul, who had recently moved to Panama City Beach to be closer to his girlfriend, lost his job a few months after starting probation. Fearing the consequences of reporting to the probation office, where he was repeatedly admonished for not paying fees or registering for expensive courses, he stopped reporting entirely.

Paul violated his probation and the court issued a warrant for his arrest. His probation officer submitted a full list of Paul’s violations, including failing to report, pay court costs, complete DUI school, or immobilize his vehicle. It also included failure to pay $410 for supervision fees to FPS. During his hearing, Paul applied for indigent status as he was not employed at the time, and the court appointed a public defender. The judge revoked Paul’s probation, and sentenced him to 120 days in jail. He missed the birth of his daughter while serving his sentence. Paul expressed concern about being identified, for fear of being put back in the system and how it might affect his young family. He hopes to return to his old job and ask for loans from family to pay off the remainder of his court costs.

Several individuals interviewed for this report said this was a common problem faced by probationers, namely failing to report for probation supervision or court dates because they did not have the money, either for supervision fees or to comply with other conditions of probation.[185] In some parts of Florida, Human Rights Watch observed judges instructing probationers to report whether or not they had the money to pay fines and fees, so as to avoid a violation for failure to report. But in Kentucky and Missouri, Human Rights Watch interviewed probationers and lawyers, and some of them said that without payment in hand for supervision, background checks, or drug testing, a probationer would be considered a “non-report” by companies and could be a violation of their probation terms.[186]

A Family Burden

Paul is not alone in asking family and friends to help cover the costs of legal costs. The vast majority of probationers interviewed for this report said they had to rely on family members for money, housing, transportation, and food. Courts were often filled with family members of probationers, as were the parking lots of probation offices, where they waited in cars for their loved ones to finish appointments.[187] The cost of private probation are not borne only by probationers, but also by family members and the larger communities. Money that would have gone toward housing, food, education, and transportation is diverted to probation and court costs.[188] When there are consequences for failure to pay, the probationer’s family, friends, and community can also suffer.

Scholars have described how debt exacerbates poverty by reducing household wealth. The impacts of criminal justice debt on families can be even more onerous: “Indeed, legal debt is particularly injurious: unlike consumer debt, it is not offset by the acquisition of goods or property, is not subject to relief through bankruptcy proceedings, and may trigger an arrest warrant, arrest, or incarceration.”[189] Legal debt may limit a person’s access to credit, employment, and housing.[190] The impact of court costs, probation fees, and other forms of legal debt not only radiate outward to families and communities, but also into future generations, entrenching patterns of inequality.

Robert is a young man who was a student at Southeast Missouri State University in 2015.[191] He said he was joining a fraternity and was told to steal a $40 t-shirt from a nearby mall as part of his initiation. He was caught, charged with petty theft and sentenced to 60 days in jail and a fine of $1000, which was suspended to 10 days of jail time, known as “shock probation,” and 2 years of probation with Private Correctional Services (PCS). He was also ordered to pay court costs of $668.50, which included $300 to the Cape County Law Enforcement Restitution Fund and daily jail boarding fees of $22.50 for the 10 days served. The court ordered Robert to pay $35 every month toward court costs while on probation. Robert said the judge never asked him about his financial situation, or how much he could afford to pay, though the judge was aware he was a student.[192]

The conditions of Robert’s probation required him to report on a monthly basis, paying $50 each time for supervision fees. Despite not having a drug or alcohol related charge, his probation also required him to not use or possess any drugs, to stay away from people using or possessing illegal drugs, and to be subject to random blood, breath, and urine tests.[193] Multiple probation officers told Robert, like many others on PCS probation in Cape Girardeau, that after 12 months of compliance and payments, he could be placed on unsupervised probation which would save him the cost of supervision fees. After 12 months of successful compliance with all his probation conditions and payments, he returned to the probation office to sign paperwork to transition to unsupervised probation. During that visit, he said he was asked to provide a urine sample. He tested positive for marijuana, and a probation violation and revocation hearing notice were issued.[194]

At the probation revocation hearing, the judge ordered Robert to serve an additional two days of “shock probation” in jail, pay $45 jail boarding fees, and participate in a random drug screen program for 120 days.[195] In the random drug screen program, Robert would be required to call a testing center every morning to see if he had been randomly selected for testing. If he were, he would have to report to the testing center within a certain number of hours and pay $20 for a drug test.

By this time, Robert had moved home to St. Louis to care for his 8-year-old sister and his mother, who was suffering from mental illness and addiction that had worsened while he was away. He was also supporting his family by paying for a lease on their home. He said he did not have a car to go to the testing center nor enough money to pay for tests. When he failed to report, an arrest warrant was issued and he was jailed. Concerned about his mother and sister’s welfare if he was not present to care for them, Robert scraped together $3000 from friends and family to pay for his bail.[196]

Robert said his life has been ruined by probation. “I can’t really live life,” he said, “looking over my [shoulder] every second of the way, can’t really hold a job down…it’s just been really killing me.” At the time of the interview, Robert had a violation of probation hearing scheduled for the following week, but he felt trapped by his options. If he went to court, he risked further jail time and separation from his family, but if he failed to appear he could lose his family and friends’ $3000.[197] Court records show that Robert ultimately did not appear for his hearing, forfeited his bond, and had an outstanding warrant for arrest.[198] Robert’s probation was revoked, and as of September 2017 he was serving a 60-day jail sentence.[199]

Invasive and Duplicative

In interviews with probationers supervised by private companies, Human Rights Watch finds a common issue that arose was court mandated drug testing and its associated costs. A common condition of both private and public-run probation in Florida, Tennessee, and Missouri, random property searches, and urine, blood, and breath tests are required even if the probationer’s offense was not alcohol or drug-related.[200] Most supervised probation, including by private companies, allow probation officers to administer these tests.[201] More intensive testing and monitoring are regularly mandated as probation conditions for alcohol and drug-related offenses. While monitoring and testing may serve a role in addressing addiction, without limits and oversight, they run the risk of becoming abusive practices, in the control of private probation officers.

Private probation officers regularly test probationers in their offices. Crystal Bradford described her experience with drug testing at Community Probation Services (CPS) office in Pulaski, Tennessee:

They have a bathroom in there. They ask you to leave the door cracked and she stands outside the door. She doesn't really watch you. You leave the door cracked and she waits outside of the door and they use a big cup. You bring it out to her when you’re done and set it on the table, and she puts her gloves on and she puts this square thing in it that…. I guess it screens for different drugs, I don't know…. She pours it inside of another cup that has one of those sticks in it. She pours it in there and then it measures everything, or reads it. And she writes her results down on a piece of paper and then lets me look at it and shows me what it said, and then pours it out and throws it away. We both can wash our hands and go back. That's how that goes.

Both public and private restrooms are used for drug testing. In St. Louis, Missouri, Human Rights Watch observed a Private Correctional Services (PCS) private probation officer meet with clients in the lobby of a courthouse, and conduct drug tests in the public bathroom, as described in the story below. The probation officer was seen carrying urine samples from the public restroom through the lobby for testing.

Based on Human Rights Watch’s interviews, some Missouri courts regularly mandate monitoring and testing at great cost to probationers.[202] Ben’s story above of court mandated testing, alcohol treatment, an alcohol monitoring anklet, and an ignition interlock system on his car was one example of duplicative and punitive use of probation conditions.

Jason DeFriese’s story provides another example of the potential for abuse associated with drug testing as a condition of probation.[203] DeFriese, a college junior who was born deaf and relies on reading lips, was picking up food for a late-night study session when a police officer in Cape Girardeau, Missouri pulled him over for speeding. The arresting officer suspected DeFriese was intoxicated and conducted sobriety tests at the site. The officer’s statement says that DeFriese was “staring,” that his “eyes appeared bloodshot and glassy and his speech was slurred.”[204] While the arresting officer’s report states that DeFriese claimed to be under the influence of synthetic marijuana, the officer’s report did not include information on DeFriese’s hearing ability or that he was having difficulty reading the officer’s lips because of the flashing lights from the officer’s car.[205] Recalling the advice of a family lawyer, DeFriese refused to take a breathalyzer test at the scene. His driver’s license was suspended.

The court deferred sentencing for DeFriese’s driving under the influence charge, instead placing DeFriese on SIS or “suspended imposition of sentence” probation, meaning the court would not make a finding during the probation period as long as there were no further violations.[206] If an individual completes the SIS probationary period without issue, then the case can be closed without a conviction on record.

Private Correctional Services (PCS), a private probation company in Cape Girardeau, would supervise DeFriese for the two-year period, during which time he would have to stay out of trouble and comply with all the conditions of his probation: paying $418 for court costs, avoiding all illegal drugs and alcohol, staying away from places where illegal drugs or alcohol might be sold or found, completing a substance abuse traffic offender program, doing 40 hours of community service, and not driving until he could reinstate his driver’s license. He would also have to follow all the orders of his probation officer, submit to periodic drug tests, pay monthly supervision fees of $50, drug testing fees, and any other fees that PCS might assess.[207]

DeFriese returned to St. Louis to live with his family after graduating, but PCS would not allow him to report to a local agency or to report by phone or mail. Instead, a PCS probation officer would set up a reporting station in a St. Louis court once a month, during which all PCS probationers in St. Louis would have to appear. The probation officer would also conduct urine testing in a public restroom in the lobby of the courthouse.[208]

About eight months into his probation term, DeFriese was asked to provide a urine sample. His on-site screening test came out positive, so the probation officer sent the sample to a laboratory for further testing. The private laboratory confirmed the presence of a metabolite of ethanol in DeFriese’s urine, with a level of 718 ng/mL. While urine testing can confirm the presence of substances related to alcohol, they cannot identify how those chemicals entered the body. DeFriese, who at the time of testing was working at a fitness center, was exposed to large amounts of alcohol-based cleaning products, and used alcohol-based hygiene products, like mouthwash. The private laboratory used to test DeFriese’s urine used a cutoff level of 100 ng/mL for the ethanol metabolite. PCS also alleged that DeFriese had attempted to dilute his urine because his creatinine level was found to be 19.8 mg/dL.[209]

These standards are not those used by other agencies within the criminal justice system in Missouri. A laboratory manager at the Missouri Department of Corrections Toxicology Laboratory, which conducts drug testing for felony probationers, parolees, and state inmates, stated that for testing the same alcohol metabolites, they use a cutoff of 1000 ng/mL, 10 times higher than the cutoff level used by the private probation laboratory. The reason for the higher cutoff level was that tests were otherwise picking up too many incidental exposures.[210] At the Department of Corrections’ cutoff level, DeFriese’s result of 718 ng/mL would not have been considered positive. Additionally, the state laboratory uses a cutoff of under 10 mg/dL of creatinine as a marker for potential dilution, instead of the under 20 mg/dL used by the private laboratory.[211] DeFriese’s creatinine result of 19.8 mg/dL would not have been considered a violation by state labs.

At a probation revocation hearing, DeFriese was found to have violated the terms of his probation due to the positive drug test, but his probation was not revoked nor was he given additional conditions.[212] That same day of the hearing, DeFriese’s probation officer told him to give another urine sample and this time found both alcohol and marijuana. Following the test, DeFriese’s father took him to an independent laboratory to have him tested again. The lab found him to be negative for marijuana.[213] Despite this, DeFriese’s probation officer placed him on a random drug testing program, which requires DeFriese to call a testing center every day to see if he had been selected.[214] Each time he is selected for a test, he has to report to the testing site and pay for the test, ranging between $15 and $46, depending on the laboratory used.

As a result of the second positive drug test, DeFriese was again found to have violated his probation terms, and his SIS probation was converted to normal probation, meaning a conviction was entered on his record. The judge sentenced him to 60 days in jail and a $500 fine, which was suspended to a new two-year probation sentence. For the violation, DeFriese was ordered to serve 4 days in jail, pay jail boarding fees of $90, and be placed on a continuous alcohol monitoring device for 90 days, at the cost of $91 every week. PCS installed and monitored the alcohol monitoring bracelet, and DeFriese was required to drive 2.5 hours to their office in Cape Girardeau each week to download information from the bracelet. To be able to drive, DeFriese also had to install an alcohol ignition interlock system on his car, an additional cost of over $100/month.[215]

Private probation was time-consuming and was taking a toll on DeFriese’s professional life. He had to take time off work to report to his probation officer and appear in court for the multiple hearings to address the violations. He felt he had no choice but to resign from his job to avoid being fired.[216]

After 90 days without incident on the alcohol monitoring bracelet, DeFriese requested he be released from the condition. His probation officer, however, wrote a note to the judge expressing reservations about DeFriese’s ability to stay sober without the bracelet, and the judge denied the request. DeFriese was required to maintain, and pay for, the bracelet for an additional five months. During this time, he was also regularly getting tested through the random drug testing program, which continued for a total of 18 months. Every test was negative, and he did not receive any violations from his alcohol monitoring device.[217]

DeFriese estimates that his first and only DUI cost him and his family nearly $10,000, not including transportation costs and lost wages. Though his family was able to support him financially, DeFriese suffered serious emotional and psychological stress through the process. As of October 2017, DeFriese had completed probation and has been working to rebuild his life and career.[218]

In a class action lawsuit filed against Providence Community Corrections in Rutherford, Tennessee, one of the named plaintiffs, Steven Gibbs, also alleged false reports in drug testing.[219] In his case, when he explained to his probation officer that he was unable to afford payments, the officer threatened to order further drug tests if he did not bring additional money. The probation officer then told him he had tested positive for marijuana and threatened to revoke his probation. However, Gibbs knew he had not used marijuana, and even had a recent negative test result from his pain clinic. In order to be sure, he went to an independent clinic and was tested for a range of substances. All the results were negative.[220] Gibbs described the attitude of his probation officer: “It's all about money. Money, money, money. If you got the money, you can go on and pay. That's fine. They won't bother you. But if you’re on disability or if you ain't working or part-time work or whatever, I don't care, they're going to eat you alive.”[221] Despite his attempts to explain to the probation officer he could not afford his payments due to being on disability, the probation officer responded he would be “written up” if he did not make his payments.[222] The class action suit in which Gibbs was a named plaintiff was settled in September 2017, with PCC agreeing to pay $14 million to individuals in Rutherford County harmed by their practices.[223]

Drug and alcohol testing can serve an important purpose, but when expensive and duplicative conditions are placed on probationers, they are more punitive than therapeutic. A number of individuals interviewed expressed the sentiment that private probation “set them up to fail,” and with constant monitoring and testing, this is much more likely to become the case.

Driver’s License Suspensions

Driver’s license suspension is another method increasingly employed to compel payment of criminal debt and compliance with other requirements, notably the payment of child support. Often these suspensions may be ordered even when the original charge was not vehicle-related. In many states, driver’s licenses can be suspended for failure to pay fines and fees, including fees associated with probation.

While states may be struggling to recover court costs and fines, suspending a person’s driver’s license can make it harder to get to work or find work, and more likely to default on payments.[224] In parts of the country lacking adequate public transportation, not being able to drive may also interfere with childcare responsibilities, access to healthcare, and many other daily responsibilities. Many probationers interviewed faced charges for driving with a suspended license and were either forced to rely on rides from friends and family, use public transportation if available, or get behind the wheel and risk getting caught.

Florida law allows clerks to suspend licenses for failing to pay fines, court costs, or child support.[225] A 2015 investigation found that failure to meet these financial obligations resulted in 77 percent of the total number of driver’s license suspensions in Florida between 2012 and 2015. It also found that approximately 29 percent of Miami-Dade County drivers had their license suspended, or nearly 550,000 people.[226]

Adam, a Florida resident, had first-hand experience of the spiraling consequences of a license suspension. Adam’s license was suspended for unpaid parking tickets, but he needed to drive for his livelihood. In 2013 he was caught twice driving on a suspended license, and put on probation both times with Florida Probation Service LLC for 12 months. It was included in his “no contest” plea deal, which he said he had to accept if he wanted to avoid incarceration. Adam was represented by a public defender in some of his cases.[227] The court-imposed costs were $800 for his first offense and $650 for his second offense.

Adam reported monthly to probation. His home was on the opposite side of the city from the probation office, about 25 miles each way, and without a valid license he was unable to drive there. His wife is disabled, and he was forced to ask for rides from friends and acquaintances.[228] On one occasion, he had no choice but to bicycle the distance to the probation office and back. In addition to paying his probation fees of $50 every month, a $10 start-up fee, a $25 partial payment fee, and $15 for community service insurance, he also completed the traffic school requirement, at a cost of $75.[229] Adam told Human Rights Watch that he eventually paid between $1160 and $1360 toward private probation fees and conditions. Though he had a source of income and was trying to make steady payments, he said that he almost lost his home and job trying to keep up with the payments and the monthly check-ins.[230]

Near the end of his second probationary period, Adam was violated for failure to pay fines, court costs, and probation fees.[231] The affidavit filed by his probation officer stated that Adam had not made any payments toward his fine. He had already paid his probation officer $630, but most of this amount, $525, had been applied to fees going to the private probation company. Only $105 had been applied toward his court costs. The probation officer asked the court to issue a warrant for his arrest.[232]

Adam scrambled to find the money and did pay the remaining $670 8 days after the 11-month deadline, but still within his 12-month probation period. For this he was charged an additional $25 “criminal delinquent fee.” His wife wrote a personal letter to the judge asking that the arrest warrant against Adam be voided so he could spend the holidays with his family. Adam was, however, arrested for his failure to make timely payments and went before the court for violation of probation, where his probation was terminated.[233]

At the time of interviewing Adam, he had not yet been able to afford the $300-$400 he estimated it would cost to have his driver’s license reinstated, and was still relying on others to give him rides.[234]

In Tennessee a 2012 law allows the state to suspend driver’s licenses for failure to pay litigation taxes, court costs, and fines within a year of the final disposition of a case.[235] As a result of this rule, over 146,000 people in the state lost their licenses between 2012 and 2016, and only 7 percent of those had been able to get their licenses back as of January 2017.[236] Driving on a revoked license carries a maximum criminal penalty of six months in jail and a $500 fine. In many cases observed in courtrooms in Tennessee, defendants charged with driving on a revoked license were placed on private probation, resulting in greater fees and costs.

Two Tennessee residents filed a class action suit in January 2017 challenging the law.[237] It alleges that before a license is revoked there is no notice period and no process to determine whether the individual willfully chose not pay costs and fines or was unable to do so. The complaint explained that one consequence of a license revocation for failure to pay court debt is being placed on private probation, which generates even greater financial obligations. This system “[f]or thousands of Tennessee’s poorest people…represents an endless cycle of poverty, debt, and jailing that makes it impossible to regain a driver’s license.” Finally, the plaintiffs allege that they are treated differently because they are indigent, and that those who have the resources to pay fines and court costs do not have to contend with the cycle of ever-increasing costs and consequences, including driver’s license revocations.

Jailed for Being Poor

Documented cases in which a court revoked probation and incarcerated a probationer simply because they were unable to pay supervision fees or court costs were rare to find in the four states researched for this report.[238] However, Craig Merrill’s story illustrates how this practice, though rare, has not been abolished.

Merrill was living in Bay County, Florida, in 2013 when he was in a car accident. His vehicle rear-ended another vehicle and he was charged with a DUI and driving with a suspended license. Merrill denies he was driving the vehicle at the time of the accident and refused to submit to sobriety tests at the scene of the accident.[239] At his hearing, Merrill applied for criminal indigent status, and the court found him indigent and appointed a public defender. The application cost him $50 and a public defender fee of $50 was also assessed.[240] Merrill had hoped to challenge the charges for lack of evidence, but was informed that, while a jury trial was his right, there would be additional fees associated with empaneling a jury and proceeding with trial. At the time, Merrill was homeless and barely had enough money for food, so was concerned about the mounting legal costs and fees. He decided to drop the legal challenge and entered a plea of no contest.[241] In May 2013 he was sentenced to 120 days in jail, after which he was placed on supervised probation with Florida Probation Service for 12 months. In addition to his fines and court fees of $2688, he would have to pay the private probation company a start-up fee of $10 and a monthly fee of $50 for supervision, for a total of $610. When Merrill submitted the first installment in his payment plan, he was assessed an additional $25 “partial payment” administrative fee.[242] The total cost for his DUI was $3,223.[243] Merrill stated that despite reporting to probation regularly, his probation officer did not provide him support or services beyond collecting his payments.[244]

The court offered to allow Merrill to substitute most of his court costs and fines with 250 hours of work in the Bay County Work Program.[245] He had been diagnosed with end-stage liver cirrhosis, however, and a doctor recommended he get on the transplant list. He was also in the process of applying for disability income payments through the Social Security Administration, which were granted in May 2014. Despite his health condition, Merrill said the Bay County Work Program did not make allowances and he was unable to avail himself of the work option to cover his court costs and fines.[246]

While Merrill attempted to pay what he could of the costs and fines, he was barely paying down his total legal debt. Documents provided by Merrill showed that he had paid Florida Probation Service a total of $770 by July 2014. However, $510 of his payments had been applied to private probation fees, with only $135 going to his fine and $100 to court costs. In July 2014, a few months before his probation period was set to expire, Merrill wrote the judge to request an extension due to his inability to pay his costs by the deadline due to his limited income and his doctor’s orders to avoid work (letter pictured). He also made clear that he was in compliance with all other requirements of probation, including no new offenses, not drinking, and not missing any appointments to meet his probation officer. At the top of the letter is a note, presumably written by the judge, saying they “cannot extend” probation and a directive to “call [probation officer] and ask for warrant.”[247]

 

In August 2014, over a year after accepting a plea deal, the court issued an arrest warrant for Merrill for violating the terms of his probation, with a bond of $4000. The warrant alleged that Merrill had not paid his fines, had failed to immobilize his vehicle for 10 days, and had not completed these requirements “one month prior to termination.” At the time, Merrill did not own a car to satisfy the immobilization requirement, and had only recently qualified for disability payments of $721/month, before which he had no income.[248]

At his violation of probation hearing, Merrill was again granted criminal indigent status and appointed a public defender. He pleaded no contest and was sentenced to 60 days in jail. When he had been in jail earlier for the DUI charge, Merrill told Human Rights Watch that he contracted an antibiotic-resistant infection in his leg and was put in solitary confinement, and was therefore concerned about being incarcerated again, particularly in his advanced stage of liver disease. He sold some possessions and used his disability payments to pay the remainder of his fines and costs a few days prior to his hearing to his probation officer. Despite complying with the remaining conditions by paying the outstanding $2193, Merrill’s jail sentence was not changed and he was again incarcerated.[249]

 

IV. Human Rights and US Law

International Human Rights Norms

This report argues that the costs associated with private probation, as part of a larger “offender-funded” criminal justice system, discriminate against individuals with fewer resources and lower income. Many of these individuals are deemed needy or indigent, either by the court or other government agencies, and qualify for a public defender or government benefits on precisely that basis. However, there is often inadequate consideration of a person’s ability to pay before subjecting them to an array of consequences that cost money to comply with, including longer periods of supervision, additional fees and costs, revoked driver’s licenses, and incarceration.[250]

Under international law, governments are required to respect individuals’ right to adequate housing, food and other basic needs that are recognized as economic, social, and cultural rights. States are obligated to refrain from interfering with people’s ability to access and enjoy these rights.[251] The practical import of these rights here is to provide a useful practical framework for how courts should apply the requirements set forth by the US Supreme Court under the 1983 case Bearden v. Georgia. Specifically, courts should refrain from incarcerating offenders who are indigent for the sole reason that they are unable to pay fines, court costs, and probation fees, when doing so would impair their ability to feed, clothe, house, or provide healthcare for themselves and their dependents. Many states require courts to waive fines, probation fees, and other costs for offenders who are “indigent.” But this term is often left ambiguous and some courts and probation companies appear to interpret it as including only cases of absolute material deprivation.

Courts should reduce or waive probation fees and other costs where they would impose a significant impediment to an offender’s ability to fulfill basic needs that are recognized as fundamental rights under international law. Probation fees and court costs are distinguishable from fines in this context because the financial costs involved are not penalties imposed to secure accountability for a crime, but ancillary costs that are simply intended to force criminal offenders to shoulder the public costs of operating a functioning court system or probation service.[252]

Similarly, Article 11 of the International Covenant on Civil and Political Rights prohibits imprisonment “merely on the ground of inability to fulfill a contractual obligation,” including failure to pay one’s debts.[253] The strict applicability of Article 11 to the issues described in this report is debatable, since fines and probation fees flow from a criminal sanction, or a court’s order, rather than a civil contract. On the other hand, debt accrued in the form of probation fees is owed to private, for-profit companies rather than to the state. Offenders who are imprisoned for failure to pay are incarcerated for failure to pay both public and private debts, even if both are the result of a court order rather than a civil contract. Article 11 is therefore of clear relevance to these issues even if it is not directly binding. In any case, some national courts have read Article 11 as imposing requirements similar to those developed by the US Supreme Court in Bearden — namely, that debtors cannot be imprisoned for failure to pay unless the prosecution is able to meet its burden of proof at a fair trial that the individual’s failure to pay was willful rather than reflecting an inability to pay.[254]

Probation companies have an independent responsibility to ensure that they do not cause or contribute to human rights abuses.[255] Company’s duties to respect human rights are laid out in the UN Guiding Principles on Business and Human Rights. Probation companies should identify the possible and actual human rights risks in their operations and conduct a human rights due diligence process to bring together findings and lay out steps to prevent or mitigate those risks. This process should include meaningful consultation with relevant stakeholders, including probationers. If a rights abuse did occur, then a probation company should ensure that effective remedy is available to victims and participate in remediation.

National Law

The US Constitution establishes rights to due process and equal protection. Due process bars real or perceived conflicts of interest, particularly by officers of the court. Circuit courts in the US have found that probation officers serve as “arms of the court,” and therefore should be governed by the same rules regarding impartiality and neutrality that apply to judicial officials.[256] But where a court’s probation service is a private company whose profits depend on their ability to collect money from offenders, asking it to determine whether an offender is able to pay the company’s own fees, to recommend consequences for non-compliance that generate profits for the company, or to use the threat of arrest or incarceration to induce payment present the perception of and potential for conflicts of interest.

In Bearden v. Georgia the court relied on the Fourteenth Amendment principles of equal protection and due process to find that probation could not be revoked and a person incarcerated purely for nonpayment of fines and restitution without first determining the reason for nonpayment.[257] More specifically, the court must evaluate whether the nonpayment was willful or “if the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so.”[258] Courts are encouraged to explore alternatives to incarceration. Applying the same logic as Bearden, courts should apply an ability to pay determination in cases where the sole reason for revoking probation is a technical violation, to assess whether it was driven by the probationer’s inability to pay, whether for supervision fees or conditions of probation, and explore alternative methods for achieving the same ends.

Some legal scholars argue that, “courts could root out discrimination by requiring hearings into indigence at different points in the process” and “require showing that an individual is not indigent before imposing any new penalty or fee.”[259] Instead of waiting until an individual fails to pay their costs and is before the court in a revocation hearing, the argument goes, justice would be better served by assessing how much an individual can actually pay at the time that the fees and costs are imposed.

Some US states already require an ability to pay determination at the time of assessing costs. The Washington Supreme Court has said that “[u]nder state law, [legal financial obligations] should be imposed only if an individual has a present or future ability to pay, and [legal financial obligations] may be remitted when paying them would impose a manifest hardship on a person.”[260] In the decision, the court discussed expert testimony provided on “self-sufficiency” standards, or the minimum amount of money to afford necessities. “To be below this minimum means the inability to secure even the basic necessities with one’s own resources, and be forced to sacrifice one need for another, e.g., not eat in order to pay for heat, or be forced to rely on luck, on the uncertainty of the kindness of others.” The court offered two objective standards for assessing indigency: if a person has an income under 125% of the federal poverty guideline, or if he or she is eligible for means-tested assistance programs.

US law requires that no disability benefits paid through the Social Security Administration “shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.”[261] Federal and state courts have found that social security benefits cannot be used to pay legal costs, such as the cost of imprisonment,[262] restitution,[263] or other legal financial obligations.[264] The Supreme Court of Washington has said that this requirement does not apply only where social security benefits are directly garnished or attached, but rather that payment of legal financial obligations by a person who only receives social security disability payments falls under “other legal process” and are thereby also barred.[265]

Acknowledgments

This report was researched and written by Komala Ramachandra, senior researcher in the business and human rights division at Human Rights Watch, with research support from Sara Darehshori, senior counsel in the US program at Human Rights Watch.

The report was reviewed and edited by Arvind Ganesan, business and human rights director; Chris Albin-Lackey, senior legal advisor; and Babatunde Olugboji, deputy program director. Additional review was provided by Alison Leal Parker, US program director; Amanda Klasing, senior researcher in the women’s rights program; Carlos Rios-Espinosa, senior researcher in the disability rights program; and Bede Sheppard, deputy director, children’s rights program. Additional research support was provided by interns Jason Horrell, Matthew McConnell, and Kevin Whitman. Amelia Neumayer, associate, business and human rights program, provided editorial and research support. The report was prepared for publication by Rebecca Rom-Frank, photo and publications coordinator, Jose Martinez, senior coordinator, and Fitzroy Hepkins, production manager.

Human Rights Watch is grateful to the many individuals and organizations that supported this research, including those who have generously supported our work on business and human rights. Human Rights Watch would like to thank William Sharp and Heather Gatnarek of the American Civil Liberties Union of Kentucky; Jonas Wang, Elizabeth Rossi, Alec Karakatsanis and the rest of the team at Civil Rights Corps; John and Jason DeFriese; Sara Zampierin of the Southern Poverty Law Center; Mitali Nagrecha and Chiraag Bains of the Harvard Law School Criminal Justice Policy Program; and the many public defenders, social justice lawyers, and experts in Florida, Missouri, Kentucky, and Tennessee who graciously shared their time and knowledge to assist with this research.

Most of all, we thank the probationers and the families who shared their stories with us.