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The State of Alabama

Officials in Clanton, Alabama, have allegedly handed over the reins to their justice system by engaging in a racketeering conspiracy with a probation company.

Published: March 16, 2015

You can draw a straight line from Sarah Still­man’s bril­liant expose of Alabama’s private proba­tion industry last June in The New Yorker magazine to the filing late Thursday of a federal civil rights complaint alleging a rack­et­eer­ing conspir­acy between a proba­tion company and offi­cials in the Alabama city of Clan­ton. What lies between is Ferguson, Missouri.

The police shoot­ing death of Michael Brown last August, the result­ing protests, and the awaken­ing of white Amer­ic­ans to the fact that tens of millions of their fellow citizens still live under the cloud of Jim Crow have made us all to look differ­ently about the many broken justice systems in our midst. The sad fact is that Amer­ica is a nation where too often our judges either coun­ten­ance pred­at­ory economic beha­vior toward indi­gent citizens or actively parti­cip­ate in it with the approval of local politi­cians.

It is sober­ing in this context to read the alleg­a­tions in the new lawsuit filed by the South­ern Poverty Law Center and styled Reyn­olds v. Judi­cial Correc­tion Services. They tell a story (one side of the story, anyway) of how a bad idea — the outsourcing a portion of the justice system to a private entity — inev­it­ably turned into a disaster for count­less of the most vulner­able citizens of the state. If the mater­ial alleg­a­tions in the complaint are true, the plaintiffs weren’t just victim­ized finan­cially they also were subject to a form of emotional torture. They were threatened and cajoled into paying what they did not have while at the same time being continu­ously deprived of inform­a­tion crit­ical to the exer­cise of their consti­tu­tional rights that would have helped protect them from the scheme.[1]

The deal between the city of Clan­ton and the private company, as alleged in the complaint, was a curi­ous one for the unini­ti­ated. The company prom­ised not to charge Clan­ton for the proba­tion services it was provid­ing. And the City prom­ised to provide the company with an evid­ently endless supply of defend­ants with speed­ing tick­ets and other minor infrac­tions. Employ­ees evid­ently called them­selves “proba­tion officers” (even though noth­ing in Alabama law seems to give them the right to do so) and oper­ated under a logo designed to look like a badge even though they did not do many of the func­tions one asso­ci­ates with a proba­tion officer. These employ­ees were there to collect the fees and fines and penal­ties imposed by the court.

If you were wealthy enough to pay your fine in Clan­ton you surely did so as quickly as you could and prob­ably had noth­ing to do with the private proba­tion­ers. But if you didn’t have enough money, and many defend­ants didn’t, you routinely were dispatched to a form of third-world justice system. The muni­cipal judge, accord­ing to the complaint, did not routinely disclose to the defend­ants in his court that community service (as opposed to fines) was often an option for some of them or that they had a right not to be jailed if they could not afford their fines (which reportedly were higher than they were supposed to be in the first place). These people were not given the option of having a lawyer (since their cases were not supposed to result in jail anyway).

So indi­gent defend­ants, routinely deprived of the crit­ical inform­a­tion they need to make informed choices about their payment options, were shunted off to the private company to make payment arrange­ments to satisfy the debt imposed upon them by the court. At that point, by design, these defend­ants were subject to a private form of justice system. Employ­ees of the private company wiel­ded enorm­ous power over citizens, not just in determ­in­ing how much the defend­ants were supposed to pay each month but also in determ­in­ing which ones might be sent to jail for fail­ing to pay those often exor­bit­ant amounts. The complaint also alleges that no one at the muni­cipal court ever audited the money received by the private proba­tion company.

What’s remark­able is not just the claim that there was a continu­ing conspir­acy to extort money from people who could­n’t afford to pay it using jail as the hammer. Cast as a rack­et­eer­ing case or not, (and I hope the “rack­et­eer­ing” element to the complaint does­n’t over­shadow and thus under­mine the more pedes­trian causes of action) , we’ve seen similar alleg­a­tions unfold else­where in Alabama, and in Geor­gia, and in several of the ten other juris­dic­tions that have privat­ized proba­tion for misde­meanor.

What’s remark­able is the way public offi­cials in Clan­ton just handed over the reins of their justice system without any evid­ent concern about over­sight. The judge named in the complaint, described as “part-time judge,” comes off as obli­vi­ous to what was happen­ing to the litig­ants before him — either that, or will­fully ignor­ant to the break­down in basic due process that was occur­ring in and around his courtroom. How can it be that no one sought to look at how JCS was hand­ling these cases? How could the obvi­ous monet­iz­ing of justice not be the subject of intense public debate?

Alleg­a­tions are not proof, of course, and soon JCS and city offi­cials (and hope­fully that muni­cipal judge, too) will have their oppor­tun­ity to respond to the SPLC’s complaint. Surely this response, whether it is a motion to dismiss predic­ated on the concept of immunity or some­thing else, will aggress­ively defend the policies and prac­tices in place. JCS has a history of such assert­ive defenses. And surely the narrat­ive the defend­ants offer for public consump­tion will at the very least complic­ate the narrat­ive set forth by the plaintiffs and their advoc­ates. There always is another side to this story that can be told.

But so far miss­ing from this story is any news of a larger, broader response to these alleg­a­tions from Alabama’s polit­ical power struc­ture. Such a response is occur­ring now in neigh­bor­ing Geor­gia, which to its credit is seri­ously contem­plat­ing legis­la­tion that would signi­fic­antly rein in the power of private proba­tion compan­ies in that state. The polit­ical reform that may be coming to Geor­gia no doubt has been buoyed by a middling Geor­gia Supreme Court ruling last fall that raised seri­ous concerns about the sort of “no-cost” private proba­tion arrange­ment that exists in Clan­ton, Alabama. Such a ruling from Chief Justice Roy Moore’s Supreme Court in Alabama is hard to fathom, which prob­ably explains why the Clan­ton case was filed in federal court.

One would think, in a state like Alabama that emphas­izes the concept of indi­vidual free­dom in other areas of conten­tious public policy, that there would be an outcry at the manner in which the indi­vidual free­dom of these low-income citizens was taken away. But so far there has mostly been silence. No protests in the streets. No scram­bling in the state legis­lature to prohibit the sorts of deal allegedly made by this city and this company. It has been nearly three years now since Circuit Judge Hub Harring­ton cour­ageously shut down another scheme like this in Harp­ers­ville, Alabama, but so far the state judi­ciary has been silent about Clan­ton.

The pervas­ive, struc­tural prob­lems of Ferguson’s court systems may truly “be every­where,” as so many people are begin­ning to real­ize, but that does­n’t neces­sar­ily mean that similar broken justice systems will be remedied anywhere anytime soon. This Alabama case will be a good one to watch for proof of how hard it will be for the neces­sary reform to come in time to help these people caught up in a system of debt­ors’ pris­ons that bears more resemb­lance to Dick­ensian England than we’ve previ­ously thought.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.

[1]  In Ferguson, remem­ber, city offi­cials used their muni­cipal court as a money-making enter­prise. In Clan­ton, the alleg­a­tion is differ­ent—that city offi­cials sought to save the costs of proba­tion services, and jail costs, by allow­ing a private company to take over muni­cipal cases with evid­ently no mean­ing­ful over­sight. In each instance, however, those least likely to be able to exer­cise polit­ical or legal power were the targets.

(Photo: Think­stock)