Outsourcing justice: Opponents say private probation companies create modern-day debtors' prisons
by Tim Lockette
tlockette@annistonstar.com
Oct 12, 2013 | 9250 views |  0 comments | 108 108 recommendations | email to a friend | print
The municipal courtroom in the Justin Sollohub Justice Center in Anniston. Photo by Bill Wilson.
The municipal courtroom in the Justin Sollohub Justice Center in Anniston. Photo by Bill Wilson.
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Deunate Jews wasn't found guilty on the charge that brought him before Childersburg's municipal court, his lawyers say, but he wound up in jail anyway.

Back in 2008, Jews, a Harpersville resident, was charged with harassment in Childersburg. According to court documents, the charge was dismissed – but he racked up $166 in court fees as a result of the trial. Unable to pay the fee, Jews was placed on probation – paying $45 per month to a private probation company. Since then, court documents say, he's been in jail at least four times for failure to pay.

His lawyer says the city and the probation company, Judicial Correction Services, violated Jews' civil rights, and are running a "debtor's prison." And Jews may not be alone.

"It's not just Childersburg," said attorney Daniel Evans, one of the lawyers representing Jews and three other plaintiffs in a suit against Childersburg and the probation company. "JCS has offices all over the state."

The Childersburg lawsuit is part of a mounting backlash against the use of private probation companies in Alabama. Dozens of cash-strapped Alabama cities have hired private companies to make sure people pay fines imposed for small offenses – an arrangement that often costs the city nothing, while improving the rate of collection on city fines.

Critics say the system blurs the line between guilt and innocence, turning small offenses into major financial obligations landing people in jail for traffic violations or other small offenses simply because they're too poor to pay.

A matter of resources

Private probation isn't new in Alabama's municipal courts. As early as 1997, cities were petitioning the Alabama attorney general's office for permission to contract with private companies to monitor people found guilty of violating city ordinances.

For cities, private probation can solve a long-standing problem. Municipal courts handle minor offenses such as misdemeanors or traffic violations, and punishment is typically through fines. But collection rates on fines are often low, and cities don't have the personnel to chase down everyone who hasn't paid.

"It's primarily a matter of resources," said Lori Lein, attorney for the Alabama League of Municipalities.

Companies such as Judicial Correction Services step in with a low-cost – or no-cost – solution. If an offender in a municipal court doesn't have cash on hand to pay a fine after being found guilty, that offender can be placed on supervised probation. The offender will pay a fee to a private probation company, typically $35 per month, and will report to the probation company regularly until the fine and court fees are paid down. On its website, JCS says it offers its services to cities for free, with probation paid for by the offenders themselves.

"It's a more efficient way to collect fees," said Anniston Municipal Judge James Sims. Anniston and Jacksonville both use JCS as a private probation contractor.

According to its website, JCS operates in more than 180 court systems throughout Alabama, Florida, Georgia and Mississippi. The site lists 38 cities in Alabama where the company currently operates.

Officials from JCS wouldn't talk to The Star about the growth of the private probation industry, or the services it provides – largely because of the company's current legal battles.

"We've got some litigation going on in the state, and I can't talk to you," said Brad Bickham, a vice president at Correctional Healthcare Companies, which owns JCS. Calls to local offices of JCS were directed through the company’s headquarters to Bickham.

In court motions, both JCS and Childersburg say they deny Jews’ allegations, but without offering details. Both say they’re denying the claims because they’re “without sufficient information to admit or deny.”

'Disgraceful'

Last year, a Shelby County judge effectively shut down the municipal court in the town of Harpersville, where four plaintiffs said they'd been jailed for not paying fines and probation fees, even though they were indigent.

Circuit Judge Hub Harrington issued a scathing opinion against the city and JCS, calling the city's probation system "debtor's prison" and a "judicially sanctioned extortion racket."

Among other things, Harrington took the city and JCS to task for saddling defendants – who were on probation because they were unable to pay fines – with probation fees that exceeded the original fine.

Harrington cited the example of a defendant who pays off a $200 fine in $50-per-month payments. With $35 per month going to probation fees, the defendant would pay off the debt in 14 months, at a cost of $700.

People who couldn't pay those increased costs, Harrington's opinion said, were incarcerated "with no valid court order or adjudication."

"Most distressing is that these abuses have been perpetrated by what is supposed to be a court of law," he wrote. "Disgraceful."

Keeping the lights on

Harrington intervened in Harpersville's municipal court, ordering city officials to send any jail sentences to him for review.

Harpersville Mayor Theoangelo Perkins says the city has since closed its municipal court.

"We send them to Shelby County now," he said.

Birmingham lawyer Lisa Borden said Harpersville is just the tip of the iceberg. Borden provided The Star with a list of 66 cities in Alabama that she says use JCS for private probation, along with 21 Alabama cities that use other private probation services. All of them, she said, are ripe for abuse.

"These are civil rights cases, in my opinion," said Borden, who directs pro bono efforts for Birmingham law firm Baker Donelson.

Borden said one of her clients, a single mother, wound up homeless after fines and fees from a traffic violations put her in arrears with a probation company and landed her in jail.

"She had to choose between making the payments and keeping the lights on," Borden said. "She chose to keep the lights on."

Borden said she's troubled by the fact that private probation is even called probation. Probation is usually given in lieu of jail time, she noted, and most private probationers haven't been sentenced to jail – they just haven't been able to pay their fine.

She also takes exception to probation companies' practice of calling their employees "probation officers." They aren't sworn law officers with arrest powers, she notes.

The first casualty

Daniel Evans, the lawyer who is suing Childersburg, says the switch to private probation was a tragic mistake.

"It's a problem of poorly educated public officials who think you could farm out an essential government service to a private entity," he said. "It's very short-sighted, and the first casualty is the rights of the people."

In addition to Deunate Jews, Evans is representing Vincent resident Gina Kay Ray and Sylacauga residents Timothy Fugatt and Kristy Fugatt. All were jailed after failing to pay fines and court costs on expired-tag or expired-license charges, according to documents they filed with the court. All say they're indigent, according to court documents.

Childersburg Mayor B.J. Meeks declined comment on the matter, saying he couldn't talk while the case is still in litigation. The city's lawyer in the case, Daniel Pickett, also declined comment.

While JCS is silent on the lawsuits now, the company has commented on its methods in the past. In extended comments to The Daily Home of Talladega last year, JCS spokesman Kevin Egan said the company gets defendants to comply with court orders 70 to 80 percent of the time, compared to about 30 percent for unsupervised probation systems. He said 18 to 19 percent of probationers get waivers on fees because they're indigent.

“And we can, and frequently do, give waivers,” he told the Daily Home. “If they get paid up in a couple of weeks, or if the court finds them indigent or they are indigent for the purpose of our supervision fees, or even if they have cases in other jurisdictions where we’re already managing them, we don’t collect anything.”

'I'll be… patient'

In Jacksonville, where JCS also does private probation, lawyer William J. Miller says there's no evidence of the kind of abuses alleged in Harpersville or Childersburg.

"I haven't seen any of that," said Miller, the public defender for Jacksonville's municipal courts.

Miller said he doesn't like to see clients, many of whom are poor, come away with fees on top of the fines they're charged. Still, he said, the city has to do something if people don't pay fines when they're assessed.

"The only other option is for them to go to jail," he said.

Jacksonville Municipal Judge Joseph Maloney said he takes precautions to make sure private probation doesn't violate defendants' rights. He said he drew up a four-page questionnaire to help the court determine if clients are too poor to pay. He said he tells offenders to make sure they make all their appointments with their probation officer. That way, if they later say they're unable to pay, he has evidence that they're willing to comply with court orders.

"I tell them that I'll be extremely patient with you if you work with me," he said.

Like Borden, Maloney said private probation isn't technically probation, since it's usually not preceded by a jail sentence.

Sims, the Anniston municipal judge, said he doesn't jail people who can't afford to pay fines. He said he makes it clear, up front, to defendants that they can't be jailed if they can't pay. He said he also assigns community service to those who can't pay.

"I'm not interested in being part of a front page story about the horrors of private probation," he said. "That's not happening here."

Anniston mayor Vaughn Stewart, himself a former judge for the city, declined comment on the matter, saying he would defer to the current judges.

'Free-for-all'

"The abuses in Harpersville are pretty well documented," said state Sen. Cam Ward, R-Alabaster. "We need some sort of oversight to make sure these things don't happen."

Ward proposed a bill earlier this year that would have set up a County and Municipal Probation Advisory Council to oversee the private probation industry. The council – which would be composed largely of judges, with one probation company representative on the board – would be able to set standards for who can be a private probation officer and would be able to impose rules on the industry, including regulation of fees. The bill would also require that private probation officers have no past felony convictions.

"It's a free-for-all right now," Ward said of the industry.

Ward's bill made it through the Senate, but failed in the House. And one of its most vocal opponents was Lisa Borden, the Birmingham lawyer and private-probation critic.

"It was horrific," Borden said. "It contained nothing to help poor people."

Borden said the bill didn't require probation companies to set up any mechanism to determine whether probationers are too poor to pay. It also contained wording that would have allowed private probation to expand into district courts.

"She made some pretty good points," Ward said. He said he would likely bring the bill back in 2014, possibly with new wording to address the issue of indigent offenders. He defended wording that allowed private probation in district courts.

"They could do that already if they wanted to," he said. "I'm just trying to provide some rules."

Borden isn't waiting for the state to regulate. She said she's working with other lawyers to show them how to sue private probation companies and the cities that use them. She said her own work in the field has been done pro bono, but other lawyers could collect attorney fees in private-probation cases, if they win.

"My goal is to create a cottage industry of lawyers who will bring these cases on behalf of indigent people," she said.

Capitol & statewide correspondent Tim Lockette: 256-294-4193. On Twitter @TLockette_Star.

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