In part one of this series, we provided a brief introduction to the concept of private probation – the practice of outsourcing probation services for minor and low-level offenses to private businesses. In the second part of this series, we will explore the issue in more depth, and answer two questions: how serious is the problem and why should we care? This piece introduces some of our main concerns as we begin to get a grasp on the breadth and depth of the problem. In our third and final installment of the series, we will explore ways that Missourians can get involved to fix these problems.
People with lower incomes cannot afford to pay the costs of private probation in addition to the long list of regular living expenses. Many of us have experienced at least once in our lives the very real stress of not having enough money to pay all of our bills. Now imagine that you have the additional expenses of probation visits and drug screening layered on top. The failure to pay these expenses impacts your very freedom. When you have choices to make about food for your children, rent for shelter, or private probation costs, which do you choose not to pay when an emergency arises? These are the very real and very stressful decisions people are forced to make, often with dire consequences.
It is predatory.
First and foremost, we are dealing with for-profit businesses built on exploiting people with lower incomes. Further, these same for-profit businesses weaponize the taxpayer-supported court system as an effective enforcement mechanism to control people, often with harmful outcomes. For these for-profit companies, the success of the individual on probation (which we will define here as no more interactions with the legal system) is a disincentive to the business. An individual succeeding in this manner reduces the company’s revenue.
It burdens those of us who can afford it the least.
We could even call this a form of indirect regressive tax as it adds cost to the poorest Missourians at a greater proportion of disposable income relative to those who are wealthiest and who also commit crimes. In theory, fines and fees associated with court and probation could represent 20% of a poor person’s pay for the month but .02% of a wealthy person’s paycheck.
We also can consider that shifting costs onto our community members with lower income will also put additional burden on the social supports families need by creating very real disruptions and financial challenges that weren’t there before. Those important support systems are funded by all of us. And remember there is a threat of incurring even more fines and possible jail time if the conditions of probation aren’t met 100%. Knowing this, impacted individuals will often prioritize their probation requirements over meeting other fundamental needs, creating a ripple effect of challenges in other parts – arguably all parts – of their lives.
It is likely unconstitutional.
We are not lawyers at Empower Missouri, but other folks who are assert that these practices “violate the Due Process Clause of the 14th Amendment by unilaterally extending the duration of, increasing fines for and adding conditions to, probationary terms of people with lower incomes.”
Missouri’s Supreme Court ruled in 2019 that Missourians could no longer be jailed or threatened with jail for not paying bills associated with state courts making people pay directly for the costs of their incarceration. We see parallels in comparing the spirit of that decision to the problems of private probation we are discussing here. It all feels like modern day debtors’ prison, which was ruled unconstitutional in the 1800’s and reaffirmed in 1983.
It worsens already difficult situations.
We haven’t yet introduced the myriad complexities that come into play when we consider how many Missourians become involved with the criminal legal system because of mental health issues and who often are charged with low level crimes. These private companies, as far as we can tell, do not have resources to deal with the unique needs of these members of our communities. Putting additional pressure on people without proper support will predictably make an already difficult situation even worse.
It is unjust.
A rational view reveals this kind of punishment is disproportionate to the harm caused and, as such, undermines the goals of a fair and just system. There is no evidence that this kind of extensive punishment increases court compliance, changes behavior by reducing crime, or makes us safer. These practices do, however, add to the growing evidence that our criminal legal system works much differently for people with money than for those without.
Reach out to us.
The more we learn at Empower Missouri, the more we are committed to prioritizing this as a top issue area impacting the well-being of Missourians. This is impacting us throughout the state in both rural and urban communities. As we mentioned in part one, we believe the number of people being impacted is quite high. Ongoing research is needed.
We invite you to reach out with any stories you may have of personal impact or if you just have a comment to add to the conversation. We’re here to listen and would love to give you a way to be involved. Thanks for being here!
Where can I read more?
Much of what we’ve learned about private probation has been through stories of personal impact, discussions with people in various roles within the system (e.g., court administrators and lawyers on both sides), and reading the limited literature there is on the subject. Because only a handful of states engage in this practice, finding research on the topic yields a few important reports that we have also pulled from. Missouri’s own Beth M. Huebner, a professor at the University of Missouri-St. Louis, co-authored a thoroughly researched and well-written article on the subject and the Human Rights Watch has examined the practice nationally and issued two reports dated 2014 and 2018. St. Louis journalist, Tony Messenger, has written extensively on the topic over the years. A couple of his pieces can be found here and here.
You can also join us for our September Friday Forum on September 9th, at 12PM, for a deeper look at this topic.