Since 2001 private companies have begun overseeing misdemeanor probation, which includes not only minor crimes, such as shoplifting, petty theft and public drunkenness, but also speeding tickets and other traffic violations. This is in contrast to the traditional use of probation as an alternative sanction for minor felonies, which is overseen by a county probation department.
Hundreds of thousands of Americans are sentenced to probation with private companies every year by well over 1,000 courts across the U.S., mainly in the South. Over 1.6 million adults were on probation for misdemeanor crimes as of January 2013, and it’s unknown exactly how many of these probationers are under the supervision of private misdemeanor probation companies. In Georgia, a state of less than 10 million people, 648 courts assigned more than 250,000 cases to private probation companies in 2012. In the states and municipalities in the U.S., if a person is given a traffic ticket or other citation but cannot pay the fine immediately, they are placed on “probation.” Private probation companies then supervise, drug test, and collect court ordered fines from them.
State and local governments contract with private probation companies because the companies offer these services at no cost to governments. Instead, the companies charge the probationer for the cost of supervision, drug testing, and other services--in addition to paying off the original fines and fees.
The longer it takes people on probation to pay off the court fines and probation fees, the more fees they accumulate. Not only do these companies have the unregulated power to charge probationers’ fees, the courts rely on the companies to determine whether a person is complying with the terms of their probation.
When probationers cannot pay, courts issue warrants for their arrest and their probation terms are extended—a practice which was banned by the U.S. Supreme Court in 1983 under Bearden v. Georgia. As NPR reported, the Bearden decision held that before sending a person to jail, “a judge must first consider whether the defendant has the ability to pay but ‘willfully’ refuses.” Without specifying how judges ought to determine whether a probationer is “willfully” refusing to pay, judges end up deferring to probation officers’ recommendations. When these probation officers are employees of private probation companies, a conflict of interest exists.
The Supreme Court of Georgia similarly declared the practice of “tolling” illegal last year, prohibiting private probation companies from asking judges to issue toll warrants to extend probation sentences when probationers cannot pay the fees they owe or if they simply cannot be reached. Private probation companies in Georgia can therefore no longer rely on probationers to make money.
Human Rights Watch and other advocacy and legal organizations have argued that this combined authority creates a financial incentive for the companies to prolong individuals’ probation time in order to continue profiting from the monthly and other fees.
These contracts between private probation companies and government entities are framed by the companies as saving taxpayer money that would otherwise be spent on government-employed probation officers. But the practice has been criticized by civil rights advocates for preying on the poor and ushering in a new era of “debtor’s prisons”.
The Private Misdemeanor Probation industry relies heavily on the Supervision and Surveillance industry, because devices produced by the latter are used to monitor, track, and test probationers.
There have been seven federal lawsuits filed against private companies overseeing misdemeanor probationers. The most recent federal lawsuit, filed in September 2015 against Providence Community Corrections in Tennessee, claims that “the company even refused to let destitute probationers complete their required community service hours without first paying a community service fee, the plaintiffs say".
- Brave New Films created a documentary about the private probation industry and has a petition demanding that counties and other government officials stop giving courts a green light to place people on probation under the control of private companies, arguing that if people can’t pay, they go to jail and taxpayers will end up footing the bill for this imprisonment.
- The Southern Center for Human Rights has multiple active lawsuits against private probation companies in the south, arguing that the privatization of misdemeanor probation has allowed for-profit companies to act essentially as collection agencies with law enforcement authority.
- Equal Justice Under Law, a non-profit civil rights organization, has been conducting extensive investigations into the rise of modern-day debtors prisons. Most recently in September 2015, the organization filed a lawsuit against Providence, one of the companies we have targeted for divestment.