Human Rights Watch Report on the Effects of Probation Company Conflicts

Human Rights Watch has just published a harrowing report entitled "Profiting from Probation," 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.

The principal conflict situation is well described on page 5 of the report:

[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.

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.

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.

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:

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
about a probation company’s dealings with probationers are the company’s own employees.

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:

[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.

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.

Robert Wechsler
Director of Research-Retired, City Ethics

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