Human Rights Watch Report on the Effects of Probation Company Conflicts
Human Rights Watch has just published a harrowing report entitled "<a href="http://www.hrw.org/reports/2014/02/05/profiting-probation-0" target="”_blank”">Profiting
from Probation</a>," which shows how the privatization of
probation has led to conflicts of interest that have seriously
harmed many individuals, and how probation companies have not been sufficiently supervised
by the criminal justice system.<br>
<br>
The principal conflict situation is well described on page 5 of the
report:<blockquote>
[M]any courts delegate the task of determining whether an offender
possesses the financial means to pay their fines and probation fees
to a probation officer. When that probation officer is the employee
of a private company, this creates a direct conflict of interest. A
probation company’s revenues are entirely derived from the fees
probationers pay them, so waiving those fees negatively impacts
companies’ financial bottom line. Companies’ financial interests are
often best served by using the threat of imprisonment to squeeze
probationers and their families as hard as possible to pay as much
as they can, no matter how severe a hardship this imposes. It is by
no means the case that all company probation officers engage in such
practices, but financial incentives push them in that direction.
They are exactly the wrong people to task with determining whether
an offender is able to pay.</blockquote>
This conflict situation is made worse by offering financial bonuses
to probation officers and local office supervisors based on the
amount they are able to collect in fees from probationers.<br>
<br>
Besides intimidation of poor probationers and, sometimes,
imprisonment for misdemeanor offenses that would not otherwise
require imprisonment, the probation companies' conflict also means
that money is the principal concern. As a former company employee is
quoted as saying, "You’ve also got the fear that private services
start to look the other way on violations [of substantive probation
conditions] as long as people are paying their money." This can be
harmful to the community.<br>
<br>
I agree with the report's conclusion that, "probation companies
should have no role in determining whether an offender possesses the
ability to pay." Courts should make these determinations, not private probation
companies. Courts should also provide more oversight. The report
says:<blockquote>
Many courts exercise little meaningful oversight over the probation
companies they hire. The primary reason many local authorities hire
probation companies is because their services promise increased
collections at no public cost. Many courts lack the institutional
resources to ensure proper oversight of those companies—the entire
staff of some local courts consists of just one overburdened clerk.
But if public officials dedicate public resources to solving this
problem, it cuts back on net financial returns. ... in many courts
the only people tracking important baseline data<br>
about a probation company’s dealings with probationers are the
company’s own employees.</blockquote>
In other words, the hiring of probation companies places court
personnel in a conflicted position, as well. The result is what the
report calls a "hear no evil, see no evil" approach. This applies
even to arrests:<blockquote>
[S]ome judges may have no clear idea of how many probationers they
have ordered to be arrested, or why. In Greenwood, Mississippi,
Municipal Judge Carlos Palmer told Human Rights Watch that he had
“maybe two or three” active arrest warrants out for JCS [a probation
company] probationers. But data later obtained by Human Rights Watch
showed that as of August 2013 there were 295 active warrants for JCS
probationers issued by his court—25 percent of JCS’ total caseload
there at the time.</blockquote>
Privatization raises many conflict situations. These conflict
situations need to be recognized before any contract is signed, and
a clear, express plan needs to be made to deal with them responsibly.
Of course, if this isn't done up front, it's never too late. It
would be useful if some model probation contract language could be
drafted to help local courts deal with this problem. Some courts
must have made attempts to do this, and these attempts could be a
good beginning in drafting model language. This problem can no
longer be ignored.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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