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State audit blasts misdemeanor probation system
It’s constitutional for the state to rely on private companies to supervise misdemeanor offenders but not legal for courts to lengthen a probationer’s sentence after it’s been imposed, the Georgia Supreme Court has ruled.
The ruling, released Monday, could allow Georgians who have had their sentences extended through a process called “tolling” to try to get back fees they paid for the unauthorized time.
“The tolling issue is a big issue because it is going to affect tens of thousands of misdemeanor warrants in Georgia,” said Augusta attorney Jack Long, who represents probationers.
Private probation companies had argued that without tolling, they would have no power because probationers could simply “hide out” for the entire sentence and let the clock run out.
“It’s not the outcome we hoped for, but we certainly knew the outcome was within the realm of possibility,” said John Prescott, vice president of operations for Southeast Corrections and president of the Community Corrections Association, which represents probation companies.
The decision came in lawsuits by probationers who contended that Sentinel Offender Services illegally collected supervision fees by unlawful tolling of their misdemeanor sentences and for imposing electronic monitoring or other requirements.The Supreme Court partially affirmed and partially reversed earlier rulings in the case.
While rejecting tolling, the court found that judges have the authority to impose electronic monitoring on misdemeanor defendants as a condition of probation. And while it upheld the constitutionality of Georgia’s use of private probation companies, it ruled that Sentinel may have to reimburse fees collected from probationers in one county, Columbia, because it did not have a legal contract with the county.
Chief Justice Hugh Thompson, writing in a unanimous decision for the court, said, “While the supervision of probation is a function historically performed by state probation officers, the mere act of privatizing these services does not violate due process.”
In 2000, Georgia cleared the way for private companies to supervise low-level offenders, claiming it freed up overburdened state probation workers while costing taxpayers nothing.
But records reviewed by The Atlanta Journal-Constitution earlier this year show some in the industry have pocketed large fees while, in at least some cases, doing little to supervise those under their watch. And despite promises that taxpayers would pay nothing to supervise the offenders, they have footed the bill when the probationers are arrested and jailed because they owe money to the company, not the courts.
Georgia uses private probation companies more than any other state: More than 500,000 Georgians were on probation last year, a rate quadruple the national average.
Private probation companies collect about $40 million a year in supervision fees from low-level misdemeanor offenders, primarily from people who didn’t have the means to pay court fines for offenses such as illegal lane change, stop sign violations, drunken driving or trespassing.
A national debate about the system started last year after lawsuits were filed in east Georgia claiming that Sentinel was squeezing probationers for fees they could not afford. The suits say Sentinel threatened some probationers with jail to push them to stay current on their payments to the company.
The Supreme Court decision came following challenges to rulings by Superior Court Judge Daniel Craig. Last year, Craig ruled that the law doesn’t allow the private sector to impose electronic monitoring, drug and alcohol testing or counseling. He also ruled that state court judges, who hear misdemeanor cases, did not have the authority to toll a sentence.
Unanswered questions in the Supreme Court ruling include how many Georgians may seek to get back fees they paid when their sentences were tolled and how misdemeanor warrants will be affected. When probationers fail to pay fees, private probation companies ask courts to issue warrants for their arrests and then to extend sentences.
While the high court’s ruling was on cases brought in the Richmond Judicial Circuit, it could affect all 32 companies in Georgia. The companies are supervising about 200,000 misdemeanor probationers statewide at any given time. About 80 percent of Georgians on misdemeanor probation are supervised by for-profit companies.
After the ruling was announced Monday, Sentinel lawyer James Ellington said, “We are pleased that the Supreme Court rejected the plaintiffs’ challenges to the constitutionality of the private probation statute and trial courts’ use of electronic monitoring to monitor probationers. We are in the process of reviewing the other aspects of the Supreme Court’s 41-page opinion.”
Sarah Geraghty, a senior attorney at the Southern Center for Human Rights, said, “The overarching lesson is that county and municipal courts need to do a better job of ensuring that private probation companies are operating within the bounds of the law.”
Regardless of the court’s decision, the industry and advocates for the probationers are expected to resume their efforts to win legislative changes to the law next year.
In light of Craig’s ruling, in the 2014 General Assembly session municipal and state court judges pushed for changes, claiming that their courthouses would fall into chaos without private probation services. But Gov. Nathan Deal vetoed the industry bill that lawmakers passed because it also would have protected companies from public disclosure of how they operate and their profits.
In the weeks leading up to that veto, seven probation companies contributed to Deal’s re-election campaign. In the previous four years, the governor had received only three other donations from probation companies.
Deal has directed a panel of criminal justice experts to study the state’s misdemeanor program system and make recommendations for changes.
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