Marietta Conner watched the judge expectantly. The 63-year-old assistant minister had just pled guilty to “fail[ing] to yield to a pedestrian”—a criminal misdemeanor in Georgia—and did not have enough money to pay her $140 fine. The judge ordered that she be put on probation. But instead of county probation, Conner was assigned a private probation company supposed to mimic normal court probabation: meet with her once a month through a probation officer, collect payments and confirm her work and address. In the end, the company sapped Conner of well over the original amount of the fine, and even dangled an arrest warrant over her head when it erroneously claimed she had missed a payment.
Conner was lucky. She knew someone at the Southern Center for Human Rights who helped her escape the trap the correctional corporation tried to put her in. Yet for hundreds of thousands of others on probation through a private company, the experience routinely entails prolonged harassment, indebtedness and even imprisonment—and sometimes all with the blessing of a judge.
To be ensnared in America’s system of mass incarceration is to be in prison, on parole, or on probation. In 2012 1 in every 35 American adults was trapped in the criminal justice system. The surging number of people whose lives necessitate constant surveillance and management has exploded the coffers of state and federal budgets, and rather than reform heavy-handed laws to ease this burden on public funds, elected leaders have contracted incarceration services out to companies with a moneyed interest in jailing more Americans.
The private prison industry has stoked the outrage of progressives and civil libertarians for years, as has the practice of prosecutors pushing plea bargains with heavy parole, but an equally dangerous phenomenon is the rise of private probation businesses across the country. Since the 1970s, the private probation industry has expanded into at least 20 states—most concentrated in the South—and nearly all of its companies are entirely supported by the fees paid to them by the probationers they “serve.” In the last few years, many of these businesses have been given more power to pursue and imprison probationers, playing a starring role in what one federal judge called a “judicially sanctioned extortion racket.”
When someone is convicted of a misdemeanor crime, he or she is often placed on probation by a judge either in lieu of minor prison time or as part of a payment plan to pay off court fines levied for his charge. Traditionally, the purpose of probation has been to facilitate the rehabilitation of the probationer through constant contact with a representative of the court (a probation officer), although this concept may be farcical in an age when an adult can be placed under “community supervision” for jaywalking. With privatized supervision, the offenders are required to report monthly to a contractor acting in the same capacity as a probation officer, and they must also pay a monthly fee to the company on top of the fines they owe the court.
The distinction between fee and fine is important because, as noted by the Economist, it is through fees that private probation companies can afford to pay the salaries of their staff. A report from the Criminal Justice Review explained that “Private agencies…rely on the probationer’s paying a supervision fee to remain solvent.” Solvency, however, is hardly a concern for many of these corporations, some of which have amassed tens of millions of dollars annually off the fees they charge probationers.
One such company is Sentinel Offender Services, whose combined operations in four different states brought in $30 million in 2009, according to an investigation by NBC. The company has faced many legal challenges on the grounds that its employees demand payment for fees from poor probationers and then issue arrest warrants when they cannot pay, without consideration for their financial situation. Marietta Conner, the impoverished pastor, was under the supervision of Sentinel.
Although a 1983 federal ruling said that probationers cannot be jailed for being indigent, Sentinel has regularly issued arrest warrants for probationers delinquent on their payments, and has even extended the probationary sentences of thousands—illegally—in order to wrest more money from them. Sentinel has terrorized so many lives a Georgia court recently ruled that the company might have to refund thousands of payments to former probationers who had the unfortunate luck to be supervised by a company that “links its probation officers’ performance evaluations to the amount of money collected from probationers,” according to a 2010 ACLU report.
Sentinel is just one in a vanguard of 34 probation corporations in Georgia pushing to have more power to hunt down delinquent probationers. A new bill up for a vote in the Georgia’s House of Representatives, greased for quick passage by funds from industry lobbyists would give private probation officers increased “immunity from liability” and grant them more discretion to extend a person’s probation—and by extension, prolong a probationer’s “payment period.”
Some courts have actually been complicit in the racket. A circuit court in Alabama ruled in 2012that the local municipal judiciary in Harpersville, Alabama had operated “debtor’s prisons” together with the private probation firm Judicial Correctional Services by turning over poor misdemeanor defendants to JCS and then allowing the company to fleece them for every cent they had.
In the event that the probationers couldn’t pay their monthly fees to the company—as was the case for many probationers in the nation’s fourth poorest state—they were thrown in jail without a trial at the behest of JCS and under the blessing of the Harpersville court, who would then doom already-indigent defendants to an inescapable pit of debt by piling even more fines and fees. The presiding judge who ruled against Harpersville was scandalized so deeply by the JCS-judiciary collusion that he accused the local court of “violating almost every safeguard afforded by the United States Constitution [and] the laws of the state of Alabama.” Meanwhile, JCS continues to operate in 69 cities throughout four different states.
Perhaps the most pernicious feature of these businesses is how they enable local municipalities to perpetuate debtor’s prisons across the country. In Florida, birthplace of modern privatized probation, courts permit correctional firms to tack on a 40% surcharge on top of the debt a delinquent probationer already owes, as detailed in an investigation by the Brennan Center for Justice. The investigation also found that courts in Missouri regularly condemn people to prison when they cannot pay off the fees imposed by probation companies, and in Illinois, corporations shakedown impoverished probationers for 30% more of their standing debt if they miss payments. In total, the report found that nine states charged probationers excessive fees “payable to private debt collection firms”—in other words, private probation companies.
Efforts to resist the abuses of the private probation system have been scattered and slow building. In addition to the class-action lawsuits filed against Sentinel in Georgia and JCS in Alabama, an Idaho-based probation company was sued in 2011 for perpetually increasing probationer’s sentences by manipulating the results of drug tests (testing positive for drugs is usually a violation of probation and can mean further penalties). That same year in Tennessee, a group of former probationer’s filed a successful lawsuit against the owner of a company called Ada County Misdemeanor Probation Services for having “forced them to overpay” and holding them on probation “longer than necessary.”
Yet despite a proliferation of lawsuits across the country, municipalities seem to show no less willingness to contract out probation services. In addition to the 20 or so states that now allow some form of privatized probation, a state senator in at least one other place—Nebraska—has inquired with policy experts about implementing the correctional model in his home state.
It does not take a legal expert to discern how for-profit correctional services threaten the freedom of Americans. Private probationary companies exist only as long as there is a steady supply of probationers from whom to extract payment, and these companies grow only if the number of people on probation grows. As evidenced further by the case of prison contractors, some of which have compelled state governors to keep prisons 90% full, a privatized correctional model maintains the American system of mass incarceration by further building it into an industry.