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Appeals court ruling could extend rights to probationers supervised by private companies
Sandy Hodson
shodson@augustachronicle.com
A civil rights battle waged locally that sparked a change across the state and the country over the practices of private, for-profit probation companies and the courts that empower them has edged closer to a definitive victory.
In an opinion released Sept. 25, the 11th Circuit Court of Appeals, which sits in Atlanta, stated that private probation firms are performing a judicial function, which means they must adhere to the Constitution. In the case of Catherine Harper v. the city of Gardendale, Ala., and Professional Probation Services, the court ruled that probationers such as Harper are entitled to due process.
In Alabama, like in Georgia, those who commit misdemeanor and traffic offenses are subject to incarceration and probation. In the Gardendale, Ala., municipal court where Harper was sentenced, the judge signed blank sentencing documents that Professional Probation Services employees then filled in.
The judge, according to the court's opinion, never reviewed the documents, and Professional Probation Services increased the length of probation from one to two years, increased the fines, and added conditions never imposed by a judge. It added to the company's profits. Failing to meet a condition of probation in Gardendale, just as is true in Georgia, can result in incarceration.
A federal judge in Alabama ruled the private probation firm didn't owe Harper impartiality in its action because it wasn't a judicial officer, and her lawsuit was dismissed. The appeals court reversed that judge.
"The court skates because it's not partial and the delegate gets off because it's not judicial. That can't be the law," the appeals court opinion reads.
Professional Probation Services has a direct financial interest to maximize the length of probation, the court noted: "In the eyes of the law, it couldn't determine probationary sentencing matters impartially."
It has long been settled law in the U.S. that a judicial officer must be impartial, the opinion reads. A judge cannot have a personal or financial interest in how a case is decided. It is a "stringent rule," the appeals court noted, and it applies to anyone or any entity performing a judicial function. The power to impose a binding sentence is a judicial function, the court ruled.
"Harper went to jail for failing to comply with hers (probation conditions)," the court noted, using italics for emphasis.
In Augusta in 2010, a mentally ill man surviving on a monthly $243 VA disability check spent two weeks in jail because he hadn't paid private probation company Sentinel Offender Services $186 in supervision fees. He had, however, completed all conditions of the probation sentence imposed in Richmond County State Court.
Hills McGee would have stayed behind bars for two months if area attorney Jack Long hadn't been drafted to appeal on his behalf. McGee was released from jail and became a plaintiff in a civil rights lawsuit, one of the first to challenge the constitutionality of using for-profit companies to perform judicial functions, and challenge the jailing of people too poor to pay fines or fees.
Over the next few years, Long filed 13 similar lawsuits in Richmond and Columbia counties, leading a state and national charge against what they termed cash-register justice and debtor prisoners.
While the legal battles waged, the Georgia department of audits issued a scathing review of the practice of state and municipal courts and private probation companies, finding courts provided no oversight and people were forced to continue paying the probation companies after sentences had expired and were jailed when they didn't have money to pay.
"The Harper case says what we said in ... Hills McGee and all the other Sentinel cases," Long wrote in an email. "This is the point I have been making for over 10 years! These companies are part of the judicial branch and they make money keeping people on probation for as long as possible and applying payments first to themselves and then toward fines etc."
The 11th Circuit court's ruling could mean the demise of private, for-profit probation, Long wrote.
The Georgia Supreme Court declined to find the use of private probation unconstitutional, but its 2014 ruling spurred change.
The General Assembly passed a new law extending more protection to probationers, while also further empowering the private firms and blanketing their financial information in secrecy. The American Bar Association weighed in, as did the U.S. Justice Department.
Georgia continues to have one of the highest numbers of residents under probation sentences in the United States -- 433,200 in 2018, the most recent year for which figures are available. Only 169,810 of those people were guilty of felony crimes. The rest were people on probation for misdemeanor or traffic offenses. Only Texas, with nearly three times the population of Georgia, had more people on probation, 474,600.
Private probation companies point to a new commitment of fairness and accuracy, governed by the state. A request for comment to the Community Corrections Associate of Georgia was not answered.
When legislators return to work in a few months, HB 1040 will be waiting with a favorable committee report from March 5. The bill would increase what private firms can charge people on pay-only probation — those people on probation only because they could not pay fines in full on their court date. Currently, companies can only charge probation fees for three months.
HB 1040 would double the number of months companies can charge people too poor to pay their fines off in full.
The bill sponsor's right-hand man at the March 5 committee meeting was former Rep. Clay Cox, a private probation industry lobbyist, according to a report in The Atlanta Journal-Constitution. Cox is also the founder and chief executive officer of Profession Probation Services, the same company that extended probation terms and increases costs without a judge's order in Gardendale., Ala.
If the appeals court ruling is challenged, the U.S. Supreme Court could decide if using such companies is constitutional and therefore legal.