Jailed for being poor in the US

Many poor Americans face jail when they cannot pay steep fines for nonviolent crimes, like US$1,000 for stealing a US$2 beer, which is fueling a booming for-profit probation industry

By Lauren Gambino  /  The Guardian, LONDON

Wed, Mar 12, 2014 - Page 9

In January last year, Clifford Hayes, a homeless man suffering from lupus and looking for a night off the streets, walked into a US sheriff’s office in Augusta, Georgia. It was a standard visit: He needed police clearance, a requirement of many homeless shelters, to stay overnight at the Salvation Army.

Hayes expected to go straight to the shelter. Instead, he was handcuffed and later thrown in jail. Hayes had not committed a crime — or at least, he had not in many years, since 2007, when he committed several driving-related misdemeanor offenses, for which he pleaded guilty and was put on probation. That probation left him US$2,000 in debt for US court fines — and fees he was supposed to pay to a private company the state hired to monitor him until his probation ended. Hayes needed to pay US$854 to the court to avoid a jail sentence; because he had no money except a US$730-a-month disability check, he was thrown in Richmond County lockup.

The cost to taxpayers of Hayes’ eight-month jail sentence: US$11,500, according to Georgia court documents.

Despite the fact that the US Supreme Court ruled in 1983 that offenders cannot be jailed when they cannot afford to pay their fines, an increasing number of poor, low-level offenders are doing time because they cannot keep up with fees they owe to US courts and private probation companies. To some, it resembles a variation on the old Victorian workhouses and debtors’ prisons, moved from Dickensian England to the modern US.

“The Mr Hayes of the world may not be the greatest citizens in the country ... but they do not deserve to be locked up,” said Georgia attorney Jack Long, who filed a habeas corpus petition on Hayes’ behalf.

Long won Hayes’ early release from jail by arguing that Hayes was unlawfully incarcerated for being poor.

More than 1,000 low-level courts across the US rely on the so-called “offender-funded” probation model, signing contracts with for-profit companies that oversee probation requirements like monitoring, drug tests and fine collection. The decades-old, for-profit probation industry is deeply rooted in the south, and especially in Georgia, but courts in states as far-flung as Michigan, Montana and Washington have also embraced aspects of privatized probation.

States sign up with private probation companies in the hopes of saving money. Misdemeanor offenders are rarely hardened criminals; they crowd US county courts with nuisance cases like driving without a license and public drunkenness.

Throwing those nonviolent criminals in jail — especially when there are so many of them — gets expensive for cash-strapped states. Misdemeanor cases fill up jail cells with minor offenders who present no threat to society, but a great cost to the US government: at a price to states and counties of about US$50 per day per prisoner. In comparison, putting a nonviolent offender on probation costs, according to one estimate, only about US$1.25 a day.

It costs even less when the states and counties hire private companies to monitor those on probation. Sentinel Offender Services and Judicial Corrections Services are the two big players in the industry, although there are a smattering of smaller companies.

Those companies make offenders pay for their own probation by charging them fees. It saves the states and counties a lot of money. It also makes the companies a lot of money: Human Rights Watch estimated that private probation companies in Georgia alone rake in nearly US$40 million in fees a year.

While states save and companies profit, the offenders pay a lot. There is no cap on the amount of fees a private company can charge minor offenders, and the longer the probation period, the higher the fees.

In some cases, the probation fees can add up to twice as much — or more — than the court-ordered fines.

Monthly rates for basic supervision range from an average of US$35 per month in Georgia to US$100 per month in Montana, Human Rights Watch says.

Costs for additional services, such as electronic monitoring or drug testing, can be staggering: GPS monitoring can cost between US$180 and US$360 per month; drug tests cost an average of US$25 a pop.

There’s the rub: Many of the poor who commit those misdemeanors get put on probation only because they cannot pay their court fines in the first place. Then they become increasingly unable to afford the probation fees that are piled on by private companies paid to oversee them, including fees for everything from basic supervision to drug tests.

The way the fees metastasize would put even payday lenders to shame.

Thomas Barrett, a former Georgia probationer, stole a US$2 beer, was fined US$200 by the court — and ended up owing more than US$1,000 to Sentinel Offender Services, the company supervising his probation.

He resorted to selling his own blood plasma twice a week to pay Sentinel, according to an account he gave to Human Rights Watch.

Some probation companies even offer their employees financial bonuses based on the amount of fees they collect, according to a deposition by a Sentinel official.

This encourages probation officers and supervisors to use aggressive tactics to squeeze probationers, and in some cases their family members, for money, Human Rights Watch said in a recent report.

And when probationers like Hayes fail to pay their fines and company fees, the companies can, and do, push law enforcement to arrest them. That leaves probationers with a stark choice: pay up or be locked up.

“Private probation companies have a really perverse financial incentive in each case,” said Chris Albin-Lackey, author of a recently released Human Rights Watch report titled Profiting from probation.

Employees behave more like “aggressive, muscular debt collectors” than probation officers responsible for administering justice, Albin-Lackey says.

Others have said that the courts are to blame for looking the other way.

Long, who represented Hayes, said local courts are equally responsible for the abusive industry practices that persist. Echoing findings in the Human Rights Watch report, Long said local courts happily accept their cut of the payments companies collect and turn a blind eye to their collection practices.

In 2012, Alabama judge Hub Harrington criticized Judicial Correction Services’ work for the Harpersville municipal court.

“One might ascertain that a more apt description of the Harpersville Municipal Court practices is that of a judicially sanctioned extortion racket,” the judge said.

“Most distressing is that these abuses have been perpetrated by what is supposed to be a court of law. Disgraceful,” Harrington added.

The courts are meant to make a financial assessment before jailing someone for not paying off his debts. Lately, that responsibility has been handed off to the private companies, which have an economic stake in determining if a person has the money to pay the fines. Companies rarely spend the time or effort to determine if an offender can pay off his debt to the court system.

“Anyone who claims they can’t pay is assumed to be lying,” Albin-Lackey said.

This leaves Long seething.

“It is unconstitutional for any person to have an economic interest in the criminal justice system,” Long said. “We don’t pay judges based on the percent of fines they impose, or police officers based on the number of tickets they issue. This shouldn’t be any different.”

Albin-Lackey said a lack of oversight by US courts and an insufficient — or in some states non-existent — regulatory framework have left the system “prone to abuse.”

That has landed the companies, ironically, in the courts to defend themselves. Sentinel has been the target of several Georgia lawsuits alleging abusive practices linked to fine collection, according to Georgia court documents.

Judicial Correction Services has also been named in several lawsuits.

Human Rights Watch said the employees of those two companies “were responsible for some of the most serious allegations” in its investigation of for-profit probation abuses.

Both companies told Human Rights Watch they have “zero tolerance” for abuses like strong-arming the poor into paying.

Long alone has filed more than a dozen civil lawsuits against Sentinel, which works with several courts in the state. Each time, he has argued that it is unconstitutional to jail someone for being poor.

In each case, company officials argue that they have not broken the law because only courts have the authority to issue arrest warrants.

Sentinel spokeswoman Ann Marie Dryden said that the company is committed to helping the offenders it supervises fulfill the terms of their probation and leave the criminal justice system.

“We believe some of the circumstances highlighted focused solely on the financial aspect of probation and failed to recognize other non-financial conditions that were present,” Dryden said.

Sentinel says it helps offenders meet the court-ordered terms of their probation, which they might otherwise miss. It also offers guidance, after-hours assistance and English-as-a-second-language classes, according to its Web site.

Judicial Corrections Services, which counts US$13 million in revenue, brags that it helps probationers meet the terms of their court agreements 70 percent of the time, compared to about 30 percent without monitoring.

The probation companies do have defenders, as well as enemies.

Athens-Clarke County chief probation officer Dale Allen in Georgia has worked for both the private and public probation sector.

Allen said that it is unfair to judge for-profit probation companies as inherently bad.

“I’ve seen it from the inside,” he said. “There are good folks and there are bad folks.”

Yet there is no question the for-profit probation industry could use a cleanup.

The issue is gaining such steam that the Georgia Supreme Court is expected to weigh in on the constitutionality of courts contracting with private probation companies later this year.

Dryden said Sentinel is not opposed to certain industry reforms.

“We believe some of the recommended changes outlined in this report could be beneficial to the industry and supported by Sentinel,” she said.

Allen, too, agrees with the Human Rights Watch report that the industry would benefit from greater transparency and clearer laws.

Among the recommendations, Human Rights Watch said states should require the probation companies to publish the amount of fees they collect from offenders.

The Human Rights Watch report also recommends, among other things, courts take the responsibility for determining if an offender can afford to to pay their fines — and to consider other punishments besides fines for low-income offenders who were too poor to pay the initial fine. It also suggests companies establish internal policies that aim to prevent employees from exercising abusive tactics to collect fees.

Allen prefers that some private probation companies continue to exist. Without these companies, he said, probation might not be an option for some cash-strapped towns and municipalities that do not have the money or resources to supervise low-level offenders.

“If you wipe [private probation companies] out with the stroke of a pen ... then you’re forcing every town and jurisdiction to make a decision whether they’re going to oversee probation or just throw people in jail,” Allen says.

However, without structural reform to privatized probation, US courts will continue to throw low-income, nonviolent offenders in jail — because the people who are poor and commit misdemeanors, simply cannot afford the high costs of going free.