Over the last six weeks, we have described Missouri’s practice of outsourcing probation and supervision services to private businesses and introduced why it is a problem and why we seek to make this a priority. For another brief summary of the issue, Human Rights Watch produced a short video describing how for-profit companies impact us. In this third installment of our series, we explore ways to move toward a better solution together.
Experts and advocates have examined the harms this practice is causing and have provided concrete recommendations aimed at federal, state, and county levels including prosecutors. Our thoughts and reactions to those recommendations today will surely be shaped by what we learn in the coming months, as we peel back the layers revealing what makes Missouri’s practices unique. In this spirit, we offer the following suggestions as a starting point for our collective discussion and consideration.
Stop giving for-profit businesses the authority of the court.
Missouri courts should stop granting the power of the court to private organizations motivated by profit which are using people who are financially vulnerable to fill their wallets. We simply need to stop allowing that to happen. As pointed out in part two, in addition to being predatory and unjust, many of the practices are likely not legal.
Stop shifting the cost burden.
Missouri counties have a history of reliance on fines and fees to fund their systems. As we saw in The Ferguson Report, using monetary sanctions and collections as a source of revenue is unfair, unreliable, and, oftentimes, illegal. The damage it does to people and communities does not outweigh the perceived financial benefit to the system. Privatizing this is a cost shift, not a cost savings. We must insist on finding funds through mechanisms other than continuing to put it on people who can least afford it.
Provide clarity about individual rights.
We understand that current practices in the court make it hard for folks to know who is an actual court official and who is an employee of the private company. Very often, there is confusion around roles, rights, and responsibilities. Private probation company representatives should be required to always identify themselves as such. People caught up in the system should be given clear information about their rights before any interaction. In pretrial* situations, people do not have a right to counsel. This means no public defender or private attorney. Not having legal representation makes it even more important to provide people with enough information to advocate for themselves. It is unfair and unjust to ask or expect a person to navigate the legal system on their own against a judge and prosecutor.
*“Pretrial” sounds scary and implies something quite harmful has happened, but can (and often does) include things like unpaid fees related to traffic violations such as speeding or driving without insurance.
Explore better options.
There are various reports – well-researched and well-informed reports – that suggest an extensive list of additional recommendations. Many of those recommendations are designed to require private probation companies and our various levels of government to mirror good business practices. We would like to suggest that rather than making the practice of private probation and supervision companies do what they do better, there is a way forward that does not require any of us – individuals or government budgets – to pay for supervision at all.
The best way forward will be exploring options that build our communities while responding to whatever conflict or violations took place. At minimum, we should aim to reduce the harm and burden current practices are causing. This would include looking more closely at using the existing practices of “bench probation” and “sponsored recognizance.” Statutory guidelines and resources already exist for both of these practices, and hold the potential for keeping community safety at the forefront along with honoring the dignity of the individuals involved.
Bench probation is the practice where, after a hearing, the judge requires the individual to simply stay clean and out of the system for a defined period of time, such as a year. And the judge may or may not ask the person to return once or twice during that year to report on their progress.
Sponsored recognizance is for pretrial folks (i.e., have not been convicted of anything) where they are released to organizations that provide support to that person while their case is pending.
Both solutions are very low to no cost to the government system or to the communities in which they occur.
Collect more information.
We want to acknowledge that much work needs to be done to better understand the scope of the problem and the specifics that are unique to Missouri. Empower Missouri is dedicated to collecting as much data as possible through conducting more research. We want to know how many contracts are held by how many counties and how many individuals are currently under for-profit probation or supervision. We also want to find out just how much latitude the courts have given to these companies in terms of what additional costs and conditions they can layer on. We will also look at trends in outcomes where data is available. Because there are zero reporting requirements, this work will take some time.
We are calling on you to help us fight the criminalization of poverty. We continue to hear from people who are personally involved and know the reach is broad. If your interest is personal, procedural, legal, or otherwise, please reach out to join our coalition as we continue to work toward lifting the harm this is causing so many people in our state.
As we continue to examine the scope and impact of private probation practices, it is important to point out an area we missed clarifying in the first two pieces. Pre-trial supervision is another way that Missouri courts are subjecting individuals to the control of for-profit businesses. It is not only probation … meaning this is also impacting people who have not been convicted of anything, and may never be convicted of anything.