Monday, September 29, 2014

Privatization and Offender-Funded Justice

In 2010, Michelle Alexander produced her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness.  One of the more startling revelations she provided involved the degree to which those who become entangled in our legal system are forced to assume a financial burden for that service.  Alexander provided these examples:

“Examples of preconviction service fees imposed throughout the United States today include jail book-in fees levied at the time of arrest, jail per diems assessed to cover the cost of pretrial detention, public defender application fees charged when someone applies for court-appointed counsel, and the bail investigation fee imposed when the court determines the likelihood of the accused appearing at trial.”

“Postconviction fees include presentence report fees, public defender recoupment fees, and fees levied on convicted persons placed in a residential or work-release program.”

“Upon release, even more fees may attach, including parole or probation service fees.  Such fees are typically charged on a monthly basis during the period of supervision.”

“Florida....has added more than twenty new categories of financial obligations for criminal defendants since 1996, while eliminating most exemptions for those who cannot pay.”

Since most wealthy people escape scrutiny by law enforcement agencies, and those dumb enough to get caught find such fees a mere nuisance, Alexander viewed these charges and the associated loss of rights of citizenship as part of a scheme to keep poor blacks in a permanent lower class state.

In 2012, Tina Rosenberg highlighted the perversity of charging administrative fees to those who are indigent or rendered thus by the system itself in the New York Times: Out of Prison, Into a Vicious Circle of Debt.  Rosenberg provides us the favor of pointing out that a person could be incarcerated, found to be innocent of any crime, but could still be indebted to the court if not able to pay the fees imposed on him.

Sarah Stillman revisits these practices in a recent article in The New Yorker: Get Out of Jail, Inc.  Stillman provides the perspective of those suffering the consequences of governments trying to save expenses while outsourcing public responsibilities to for-profit corporations.

In recent decades the size of prison populations increased dramatically and created an opportunity for corporations to become a larger participant.

“The size of America’s incarcerated population more than quadrupled in the three decades since 1980, and, in time, the private sector seized an immensely lucrative opportunity; between 1990 and 2009, the number of inmates in private prisons increased seventeen-fold, and revenues for the largest private-prison firm, Corrections Corporation of America (C.C.A.), reached $1.7 billion.”

The costs involved in maintaining so many prisoners became intolerable and federal, state, and local agencies began to look for ways to lower the number of prisoners.

“Some investors have begun to turn their attention to extra-carceral institutions, such as private halfway houses, electronic monitoring, ‘civil commitment’ centers for sex offenders, and for-profit residential treatment facilities. Private-prison corporations themselves have begun to expand into the ‘alternatives’ industry.”

“Private-probation companies, too, have quietly taken off in recent years, often selling themselves as a cheap way to keep small-time offenders out of jail. In 2010, Judicial Correction Services (J.C.S.) made the magazine Inc.’s list of ‘the fastest growing private companies in America,’ for the third year in a row; a year later, it was acquired by Correctional Healthcare Companies, which now boasts of attending to the ‘full spectrum’ of offenders’ lives: ‘pre-custody, in custody, and post-custody’.”

This system, which Stillman refers to as “offender-funded justice,” involves court systems trying to cover their costs by charging those unlucky enough to come in contact with them fees for the services provided.  Some of these courts are outsourcing these same services to for-profit companies that get to charge the misfortunate an additional fee.  One of the responsibilities of these companies becomes the collection of these fees—a task made easier by judges willing to throw debtors into prison.

“Although debtors’ prisons were abolished by federal law in the eighteen-thirties, people across America are routinely jailed for fees and fines that they are too poor to pay. Spokesmen for the private-probation industry stress that only judges, not the firms under contract, have the authority to decide who goes to jail for nonpayment, and who counts as indigent. But private-supervision fees, which are often significantly higher than what states would charge for equivalent services (many states charge nothing at all), can add substantially to judicial fines, and….companies rely on the threat of jail time to generate collections.”

A person summoned to court for nonpayment of a traffic ticket could be placed on probation and turned over to one of these private companies.  The fine will have to be paid, a monthly probation charge will have to be paid, and the company’s monthly service charge will have to be paid.  If the persons did not have the funds to pay the ticket in the first place, how are they going to cover all these additional charges as well?  The indigent are under intense pressure to either take extreme measures to acquire money or to drop out of society and go into hiding.

Stillman cites the results of a study by Foster Cook, head of Treatment Alternatives for Safer Communities at the University of Alabama.

“Cook recently conducted a survey of more than sixty private probationers after he noticed that many of his clients in addiction programs were “buried” under court debts that often created more problems for taxpayers than they solved. The vast majority of respondents had forgone rent, groceries, medicine, or all three to pay fees to private-probation firms. A third had committed an illegal act, such as selling drugs or stealing, to make their payments.”

In the above example, both the court and the probation company have the opportunity to make a profit by doing essentially nothing except commit some poor soul to probation.  This is the type of situation just perfect for breeding corruption.

“Not long ago, in Tennessee, a judge was sent to prison after an F.B.I. probe found him taking kickbacks estimated to be as large as a hundred thousand dollars from a private-probation company and a driving school in exchange for sending them offenders.”

“In Idaho, a decade-long experiment with private probation collapsed following complaints of profiteering and illegal fees.”

“This past February, Human Rights Watch published a report that catalogued problems endemic in private-probation services across the South, including ‘easy opportunities for corruption,’ the wielding of ‘coercive power’ against debtors and their families, and ‘Kafkaesque’ electronic-monitoring sentences for minor crimes, which subject offenders to steep surveillance fees. The report found that these problems were ‘not a consequence of probation privatization per se’ but what comes to pass when ‘public officials allow probation companies to profit by extracting fees directly from probationers, and then fail to exercise the kind of oversight needed to protect probationers from abusive and extortionate practices’.”

Stillman documents abuses throughout this “extra-carceral” economy, but her primary example is that of Harriet Cleveland of Montgomery, Alabama who was placed on probation when she was unable to pay fines for citations involving her automobile.

“When she was unable to pay her fines, a judge sentenced her to two years of probation with Judicial Correction Services, a for-profit company; she would owe J.C.S. the sum of two hundred dollars a month, with forty of it going toward a ‘supervision’ fee.”

She could not afford to keep up with the payments and fell behind.  Her debt mounted and her period of probation went on indefinitely.  Cleveland spent years under the threat of being jailed.

“Cleveland told me that when she was first assigned to J.C.S. her probation officer had taken down the names and phone numbers of her family members. As she fell behind on her payments, the company began calling Cleveland’s relatives—her daughter, her estranged mother, her daughter’s paternal grandmother—to tell them that if she couldn’t come up with the money she would be sent to “sit out” her probation debts in jail.”

The amount she owed had ballooned higher than she could have believed.

“In early 2012, she turned over nearly all her income-tax rebate—some two thousand dollars—to J.C.S. But by that summer her total court costs and fines had soared from hundreds of dollars incurred by the initial tickets to $4,713, including more than a thousand dollars in private-probation fees.”

The system apparently decided they were not earning enough from her.

“Last June, Cleveland received a letter from the District Attorney’s office. ‘Balance Due: $2,714,’ it warned. ‘You MUST pay this amount in full . . . or you may be ARRESTED.’ Cleveland noticed that the amount she owed was far higher than the original fees she had chipped away at for more than two years, and she called the D.A.’s office, desperate for an explanation. Only much later did she learn that the D.A. had nearly doubled her fines because of her failure to pay, adding a thirty-per-cent collection fee, a warrant fee, and other surcharges.”

Cleveland was placed in a cell in Montgomery’s city jail and told she would spend a month there unless she paid $1700.  Stillman tells us this policy is known as “Pay or Stay.”

Fortunately, even in Alabama there is a hope for justice.

“Early in her jail stay, she was visited by an attorney named Sara Zampierin and a researcher named Jacob Denney, both with the Southern Poverty Law Center (SPLC). At the courthouse on the day of her sentencing, Denney had approached Cleveland’s eldest son and told him that Cleveland’s arrest appeared to violate state law and the equal-protection clause of the Fourteenth Amendment. His organization could help the family try to get her out of jail.”

Cleveland was told that it was illegal to revoke probation because of indigence.

“….a habeas petition filed by the attorney Sara Zampierin and her team got Harriet Cleveland freed from jail, and the process of discovery in her suit against the court yielded some surprises. It turned out that Cleveland had actually paid one of the tickets that had landed her in jail; sloppy accounting is commonplace in understaffed courts. What’s more, J.C.S. officers had sometimes placed Cleveland’s payments directly into its corporate accounts, with hardly anything applied toward her actual court costs. According to internal company records, Cleveland once made a two-hundred-dollar payment that went straight to J.C.S.”

Cleveland’s case had not been resolved when Stillman’s article went to press.  However, SPLC recently published the results under the title SPLC lawsuit closes debtors’ prison in Alabama capital.

“Cleveland spent 10 days in jail before SPLC lawyers got her released. The SPLC then filed suit on her behalf, alleging the Montgomery Municipal Court’s practices were unconstitutional. The SPLC and Equal Justice Under Law, a civil rights organization, announced a settlement agreement today with the city of Montgomery that will help Cleveland and change the city’s practices so that no one else will suffer her fate again. The agreement is pending final approval by the U.S. District Court for the Middle District of Alabama Northern Division.”

“The city will now determine if a person is indigent and will not jail anyone who cannot afford to pay. For people who are indigent, the municipal court will create lower payment plans of $25 a month or give the option of performing community service until the debt is paid. Equally significant, before the agreement was reached, the city decided not to renew its contract with JCS, which subsequently closed its Montgomery office.”

The abomination known as “offender-funded justice” is the natural outcome of situations in which those with political power refuse to pay enough taxes to make society functional, and those in political power provide license to for-profit companies to harvest funds from the poor.

Privatization is inevitably a scheme to extract funds from the less wealthy and to transfer those funds to the more wealthy.

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