American Bar Association

ABA urges 6th Circuit to forbid private probation company’s jail-or-pay scheme

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The American Bar Association filed an amicus brief Tuesday condemning a private probation system that jails defendants who are unable to pay their fines.

In Rodriguez v. Providence Community Corrections Inc., the ABA is urging the Cincinnati-based 6th U.S. Circuit Court of Appeals to uphold the lower court’s injunction against the practice. Cindy Rodriguez and other probationers, all convicted of misdemeanors, argue that private contractor Providence Community Corrections Inc. jailed them for failure to pay fines regardless of whether they could afford the fines, and without a hearing beforehand.

According to the Murfreesboro Post, Providence charges fees to probationers who come in for a court-ordered meeting or drug test, even when they’re indigent. Plaintiffs say some have lost homes, gone without food or other necessities or sold plasma in order to pay the fees—but have stayed on probation for years.

Equal Justice Under Law, a Washington, D.C.-based nonprofit, filed the lawsuit under the Racketeering Influenced and Corrupt Organizations Act, arguing that Rutherford County and Providence conspired to extract as much money as possible from people on probation. Providence has a conflict of interests because it has a direct financial stake in the outcomes of probation cases, the lawsuit said. A Nashville federal judge enjoined the practice and the defendants appealed.

In its amicus brief, the ABA argues that “bail schedules”—lists of preset dollar amounts to be charged as bail for specified offenses—violate the defendant’s rights to due process and equal protection under the Fourteenth Amendment. The ABA Standards for Criminal Justice, the organization’s nonbinding guidelines on criminal justice practices, currently suggest that jurisdictions use financial bail only after a court considers the circumstances of the individual defendant before it.

“Under our system of justice, the right of any individual to liberty, as well as the right to mount an effective defense to criminal charges, should not depend on that person’s ability to pay,” the brief (PDF) says.

Equal Justice Under Law, the nonprofit that brought the suit, was co-founded by Alec Karkatsanis, a co-chair of the ABA Criminal Justice Section’s committee on pretrial matters. The nonprofit has sued several other jurisdictions for using the threat of jail to generate court costs and fees from indigent defendants. One such suit, in New Orleans, survived a challenge last month and is expected to go to trial in August.

As the ABA Journal detailed last month, it has also sued several jurisdictions that use bail schedules without regard for the defendant’s ability to pay. Like the ABA brief, Equal Justice Under Law has argued that bail schedules are unconstitutional. Many of those lawsuits settled, but pretrial motions are ongoing in one filed against the City and County of San Francisco.

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