Georgia bill would protect controversial for-profit probation industry

Georgia is poised to enact legislation that would protect a multimillion-dollar law enforcement industry that critics say has revived Dickensian-era debtors prisons in America.

The Georgia bill, called House Bill (HB) 837, is a boon to private companies that sign state contracts to manage the probation periods of minor offenders. The state sentences the offenders, then hands off the supervision to the probation companies, who monitor the offenders and administer drug tests, among other services, then charge offenders for the cost. The industry dates to 1992, when local and county courts began outsourcing misdemeanor probation cases to private companies to alleviate pressure on overburdened state probation officers. And in 2000, the Georgia Legislature eliminated county-run probation services entirely for misdemeanor cases, determining that state probation officers should handle only more serious, felony, cases.

In recent years, however, those probation companies have come under fire from lawyers, reform advocates and Human Rights Watch for several abuses, including allegedly charging excessive fees and pushing poor offenders into jail for not paying their debts.

The Georgia bill, if it becomes law, will protect the way the companies currently do business. Governor Nathan Deal has until 29 April to sign or veto the bill, otherwise it becomes law.

If Deal does not veto the bill, an industry wrought with controversy will carry on as it had, making big money off some of the poorest citizens. The decades-old industry is deeply entrenched in Georgia where private companies oversee the probation of up to 300,000 misdemeanor offenders annually and rake in as much as $40m a year for it.

“It’s about money, folks. It’s about M-O-N-E-Y. Dollar sign. Dollar sign," said Republican state representative Chuck Sims in a February house floor speech opposing the bill.

Indefinite probation for petty theft

Chris Albin-Lackey, a senior researcher at Human Rights Watch and the author of a critical report on the industry, said the bill hands out “freebies to the industry that are really horrible and unjustifiable”. He was at the Georgia capitol earlier this year pushing for greater industry transparency and a cap on the fees companies can charge for misdemeanors.

The bill would undo a ruling last September by Georgia superior court judge Daniel J Craig, who found that state law bars extending misdemeanor probation sentences past their original terms as well as ordering electronic monitoring for misdemeanor offenders – an expensive option that can cost offenders $180 to $360 a month.

The new legislation would contradict Craig's ruling, and allow these practices to continue.

Under the bill, judges would be allowed to extend probation sentences for minor crimes like petty theft and order electronic monitoring for probationers. These practices benefit probation companies by adding to the monthly fees they can collect.

Another aspect of the bill is thwarting transparency. It shields companies from publicly disclosing key information about their businesses, including how much probationers pay the private firms in fines and fees as well as the number of people they supervise on probation.

Deal told Atlanta's NPR affiliate WABE radio on Monday that he had concerns over the "lack of transparency" in the measure.

He said: “Part of the bill that concerns me is the clause that was added in, sorta late in the session, about the secrecy of the records...of not making those available for inspection. I have asked some people to look at the language to see exactly what it does but we have not made a final call on that yet.”

The bill would also authorize judges to waive supervision fees or hand down an alternative sentence for misdemeanour offenders who can prove the fines and fees pose serious financial hardships. Courts are already supposed to do that, but frequently don't, said Albin-Lackey of Human Rights Watch.

"Judges already can – and in fact in theory are constitutionally obligated to – waive fees as well as fines if an offender is indigent," Albin-Lackey said. "This is how it's supposed to work. The problem is that most courts don't make a serious effort to do this, and they tend to delegate the job of figuring out whether an offender is indigent to their probation officer. Where that's a private company, this introduces a serious and very direct financial conflict of interest."

Sarah Geraghty of Southern Center for Human Rights, which lobbied against the measure and has long fought for industry reform, said she was initially hopeful that the bill could be used as engine to instate badly-needed changes to the industry.

One early try: capping the amount in fees for-profit firms are allowed to charge offenders for supervising their probation, among other things.

The cap would have been set at $23, which is what the state charges offenders for supervising felony probation sentences. Georgia's for-profit probation firms charge a much higher amount, between $39 and $44, for monthly supervision for misdemeanor cases, according to the Southern Center for Human Rights.

After lobbying by a top Georgia firm that represents the private probation industry – which includes Sentinel Offender Services – the direction of the bill changed significantly. Lawmakers stripped some amendments and a new draft pushed forward.

Days before the session ended, the legislature quietly approved the bill in its final form with little debate – dashing industry critics’ hopes of ushering in meaningful reform.

The bill is a “big win” for private probation companies, said Geraghty.

“I thought Georgia law couldn’t get much worse in terms of access to information about private probation companies,” she said. “I was wrong.”

Sentinel Offender Services, Georgia’s largest probation services provider, refutes allegations that the bill was introduced to benefit the probation industry. The company's web site boasts that it has saved states "hundreds of millions of dollars".

Sentinel spokeswoman AnnMarie Dryden said in an emailed statement: “There is nothing in Georgia law or in recently passed HB 837 that in anyway insulates a private company from investigation of improper practices. HB 837 is not intended to provide benefit to Sentinel or any other private probation provider.”

Industry critics argue that private companies should not have any authority over probationers' sentences because they have a financial stake in the outcome. The industry’s rebuttal has consistently been that companies do not have decision-making authority – only the courts do.

Sentinel said: “Nothing in current state law nor in HB 837 diminishes the accountability of any private probation provider. Every judge continues to have the authority to request any information from us at any time. Please note, Sentinel’s probation services are paid for by the offender and we receive no taxpayer funding for our services.”

Cover for abuses

The for-profit probation industry is rife with controversy.

The Augusta Chronicle’s editorial board compared the industry’s fee-collecting tactics to “involuntary servitude”. And an Alabama judge called the system a “judicially sanctioned extortion racket”.

Critics say the system works perversely: those least able to pay their fines and fees upfront wind up the most in debt to these companies, as the fees keep accruing. They are then routinely jailed for not keeping up with the monthly payments they owe to the firms.

However, the US supreme court ruled in 1983 that jailing someone who could not pay a fine or fee is a violation of the 14th amendment of the US constitution. This has led critics – and attorneys – to object that the tactics of the for-profit probation companies – including pushing for jail time for poor offenders who cannot keep up with their fees – are potentially unconstitutional.

Georgia attorney Jack Long sent a letter to Deal urging him to veto the bill. Long has brought more than a dozen lawsuits against Sentinel, arguing that it’s unlawful to incarcerate someone for being poor. The state's highest court is expected to weigh in on the issue this year.

“This bill, if signed, will do nothing but further disrespect for our system,” Long’s letter stated. He adds: “Georgia does not need to be classified as a ‘debtor's prison’.”

A destitute Georgia man who stole a $2 beer and was fined $200 by the court ended up owing Sentinel more than $1,000 in fines and fees. Thomas Barrett resorted to selling his own blood plasma twice a week to pay the firm, according to an account he gave to Human Rights Watch.

Furthermore, supporters of the Georgia bill say without the ability to extend a probationer’s sentence, the offender could abscond until the clock runs out. “This bill right here prevents those people from being able to go and hide with no consequences," said Republican representative Mark Hamilton, the bill’s sponsor, on the House floor in February. Hamilton's office did not return a request for an interview. Neither did the lobbying firm that backed the bill, or the Private Probation Association of Georgia, a group representing the industry.

• This story has been amended to remove a mention of fees paid by Sentinel Offender Services to an Atlanta law firm. Sentinel paid the firm more than $500,000 dollars as of July 2013, which included payment for defense against lawsuits, according to a court deposition last summer by a senior Sentinel official.