The perils of privatized probation

Last week, Georgia Gov. Nathan Deal vetoed a bill that would have expanded the portion of probation service that the state contracts out to private companies. The bill would also have exempted private probation companies from the state’s open-records laws.

Kudos to Deal. He’s a Republican governor in a Southern state. That veto took some political courage. But it was important. The Economist’s “Democracy in America” blog recently detailed all of the awfulness in this bill:

I’ve written about these fees before, but here’s a quick refresher: if you get hit with a $200 ticket you can’t pay, then a private-probation company will let you pay it off in instalments, for a monthly fee. Then there may be additional fees for electronic monitoring, drug testing and classes—many of which are assigned not by a judge, but by the private company itself. When probationers cannot pay, courts issue warrants for their arrest and their probation terms are extended—a reprehensible practice known as “tolling”, which a judge declared illegal last year. These are folks who had trouble paying the initial fine; you have to imagine they’ll have trouble paying additional fines. It’s plausible to posit that these firms’ business models are based on assigning unpayable fees to people who lack the sophistication, time, will or whatever to contest them. One might even say these predatory firms treat the long arm of the law as sort of lever on a juicer into which poor people are fed and squeezed to produce an endless stream of fees.

How much do these companies make? How well do they supervise their charges? Do they in fact deliver on their promises of efficiency? Who knows! They may do the state’s business, but they are private companies, and hence not subject to sunshine or open-records laws. Human Rights Watch estimates that in Georgia alone private-probation companies rake in around $40m in fees each year (and remember, these are fees paid by people who could not pay a simple misdemeanor fine in the first place), but the fact is nobody really knows.

And if Georgia’s legislature has its way, nobody ever will . . . HB837 reverses last year’s judicial order banning tolling: not only does it allow the practice, but it places no limits on duration, meaning that a single traffic ticket could in effect turn into lifetime probation. It allows judges to request quarterly reports from a judicial circuit’s private-probation companies detailing the number of offenders supervised, the amount and source of fees collected, the number of offenders who have successfully completed probation and the number of warrants sworn out each quarter, but it then shields this information from disclosure laws.

I think some progressives tend to overstate the extent to which problems with the criminal justice system are attributable to privatization. At my previous job as a reporter for the Huffington Post, for example, no matter what issue I wrote about — the death penalty, prosecutor misconduct, police militarization, etc. — a significant portion of the comments section always put the blame on private prisons. But most of the problems in the criminal justice system today pre-date private prisons. And if we were to abolish private prisons, private probation and other crime-related privatization projects tomorrow, few of those problems would go away.

The tendency to focus on the private part can also deflect attention from the actual problem. For example, a number of progressive outlets recently reported on the disturbing prevalence of sexual abuse at juvenile detention centers run by private companies. But a Department of Justice report published last June found that the incidence of sexual abuse of juvenile inmates by staff is twice as high at state detention centers as it is at private facilities. We could abolish private juvenile detention centers next week, but we’d still have a terrible problem with prison staff who sexually abuse minors under their supervision.

I think it’s also important to note that private companies can serve an important role in other parts of the criminal justice system, such as forensic analysis, when they could be useful in adjusting poorly structured incentives, and fighting cognitive bias to help ensure fairness and accuracy in crime lab reports. (Although bringing in private crime labs to double check the work of state labs is quite a bit different than privatizing state labs.)

All of that said, most privatization efforts either exacerbate the existing perverse incentives in the criminal justice system, or add new perverse incentives to the mix. Private prisons may be more cost-efficient than public prisons (though even that question is far from settled), but the move toward them has created an entire industry whose bottom line is dependent on keeping as many people behind bars for as long as possible. That can lead to nightmarish outcomes, including immigration detention centers where suspected undocumented migrants are stripped of all due process rights and can be held indefinitely — all of which is encouraged by financial incentives from the government. With so much at stake, this artificial, government-created industry, which is funded by taxpayers, then wields enormous influence in the debate over immigration reform. I believe in the free market. There’s nothing free market about the scenario above.

But getting back to the topic at hand, the goal of a probation program ought to be rehabilitation — that is, to get people off of probation, out of the criminal justice system and into leading normal lives as productive citizens, as quickly as possible. That’s really the whole point of probation. If the law didn’t consider a probationer capable of rehabilitation, he wouldn’t be on probation — he’d be in jail or prison. But the goal to get probationers out of the system won’t always align with the goals of a private probation service. In fact, it rarely will. Every convict who gets off probation is one less paying customer.

The effort to protect private probation companies from open-records laws is even more wrongheaded. (Some states have granted the same protection to private prisons.) Democratic governments hold a monopoly on the legitimate use of force. It’s a power the people delegate to the government. We need transparency laws because the ability to use force with the blessing of the people is an awesome and profound power requiring constant vigilance to guard against abuse. The enormity of the power and the need for oversight and transparency doesn’t change when the government then transfers the power to use force to a private company. If state prisons, state police or state probation offices shouldn’t be exempted from open-records laws (and they shouldn’t), I can’t think of a convincing argument for why a private firm that performs the same function should. If anything, transparency is more criticalsince private companies serve the interests of their investors or shareholders, not the interests of the public.

More from the Economist here. You can read the Human Rights Watch report on privatized probation here. And for a somewhat contrary take on private prisons, see this law review article by my fellow Washington Post blogger Sasha Volokh.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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Radley Balko · May 6