Mar 16, 2014
At the single stoplight in Harpersville, Alabama, Debra Shoemaker Ford saw the police lights flash. On that January day in 2007, she steered her beat-up black Chevy Blazer into the parking lot, under the big red dot advertising Jack's restaurant. The officer said she had a taillight out. He asked to see her license.
Ford didn't have one. Her license had been revoked after she failed to pay a court judgment against her for a traffic ticket in a nearby town. She hadn't worked since a car wreck a decade earlier, surviving instead on disability payments of about $670 a month. That meant generic washing powder instead of Purex. Cigarettes, when she allowed herself, were rationed, each drag a pleasure measured in pennies. To pay the ticket, plus the fee to reinstate her license, would have meant going without essentials. Though she knew she shouldn't, Ford, a small white woman in her 50s with a fringe of bangs and a raspy voice, regularly climbed behind the wheel of the old Chevy. In rural Alabama, it's the only way to get around.
Ford left the parking lot with tickets for no proof of insurance and driving without a license, which would come to $745 with court costs. She didn't know it yet, but they would also cause her to spend years cycling through court, jail and the offices of a private probation company called Judicial Correction Services. JCS had contracted with the town of Harpersville several years earlier to help collect on court fines, and also to earn a little something extra for itself. It did this by charging probationers like Ford a monthly fee (typically between $35 and $45) while tacking on additional fees for court-mandated classes and electronic monitoring.
Ford tried to meet her mounting debt to Harpersville, but as the months passed and the fees added up, she fell behind and stopped paying. In June 2007, the company sent a letter telling her to pay $145 immediately or face jail. But the letter was returned as undeliverable--a fact that did not stop the Harpersville Municipal Court from issuing a warrant for her arrest. Almost two years later, in January 2009, Ford was arrested on that outstanding warrant and promptly booked in the county jail--where, to offset costs, the town charged her $31 a day for her stay.
Ford spent seven weeks in jail, during which time her debt grew into the thousands. She did not, however, see the inside of a courtroom. All the lawyer hired by her family managed to do was to eventually get her transferred to a work-release program, which stopped her jail fees from growing and allowed her to live in a closed facility, the Shelby County Work Release Center,while going to work. Ford found a minimum-wage job at a local thrift store, but after buying food and handing a cut to the work-release program--40 percent of her gross earnings--there wasn't much left to pay off the fines that kept her there. What had started as a simple traffic violation had become an indefinite sentence in a debtors' purgatory--one that would take years to pay her way out.
"It shouldn't have been that much punishment," Ford recalled later. "I was guilty--no license and no insurance--but I was trying to fix it. I was trying to make my wrong right, and there was no way they was gonna let me."
* * *
What happened to Ford in the small town of Harpersville was tangled and unconstitutional--but hardly unique. Similar tales have been playing out in more than 1,000 courts across the country, from Georgia to Idaho. In the face of strained budgets and cuts to public services, state and local governments have been stepping up their efforts to ensure that the criminal justice system pays for itself. They have increased fines and court costs, intensified law enforcement efforts, and passed so-called "pay-to-stay" laws that charge offenders daily jail fees. They have also begun contracting with "offender-funded" probation companies like JCS, which offer a particularly attractive solution--collection, at no cost to the court.
Harpersville's experiment with private probation began nearly ten years ago. In Alabama, people know Harpersville best as a speed trap, the stretch of country highway where the speed limit changes six times in roughly as many miles. Indeed, traffic is by far the biggest business in the town of 1,600, where there is little more than Big Man's BBQ, the Sudden Impact Collision Center and a dollar store. In 2005, the court's revenue was nearly three times the amount that the town received from a sales tax, Harpersville's second-largest source of income. Fines had become key to Harpersville's development, but it proved difficult to chase down those who did not pay. So, that year, Harpersville decided to follow in the footsteps of other Alabama cities and hire JCS to help collect.
JCS is considered a significant player within the private probation universe. Founded in Georgia in 2001 by a group of locals with backgrounds in law enforcement and the finance industry, the company has since expanded its operations to Florida, Mississippi and Alabama. Business has been good. Between 2006 and 2009, JCS more than doubled its revenue, to $13.6 million, according to a profile in Inc. magazine. And while recent revenue statements for the privately held company aren't available, what is known is that JCS operates in some 480 courts across the country. In larger courts, JCS can net as much as $1 million in probationers' fees each year, according to an estimate from Human Rights Watch.
To keep business booming, JCS representatives crisscross the South promoting the company as a free and effective "supervision services" program. ("Helping municipal court clerks kick their heels up in joy," JCS promises in one magazine ad.) And yet, if private probation has seemed like a solution for struggling Southern cities, it has been a disaster for the many poor residents who are increasingly trapped in a criminal justice system that demands money they do not have, then punishes them for failing to pay.
The Constitution ostensibly protects people from falling into this kind of debt-and-punishment trap. In the 1983 case Bearden v. Georgia, the Supreme Court ruled that to jail a probationer for failure to pay a fine without inquiring first into that person's ability to pay violates the equal protection clause of the Fourteenth Amendment. But if neither the company nor the court seeks to determine indigence--and that is common--then protections for the poor never kick in.
This is precisely what happened in Harpersville, where JCS's private probation model met a small-town court in which the letter of the law did not always apply. In Shelby County, the richest in Alabama, there remains a yawning gap between the haves and have-nots, yet neither the court nor JCS made any effort to determine if people could pay; it was simply not in their interest. At the same time, money collected from probationers went missing, leading to the indictment of a lead JCS probation officer. People were jailed for months for failure to pay without seeing a judge. And two people locked up for fines to Harpersville died while in custody.
It was a system of extraction and coercion so flagrant that Alabama Circuit Court Judge Hub Harrington likened it to a modern-day "debtors' prison." In a July 2012 ruling in a civil action brought on behalf of Debra Ford and three others, Harrington wrote: "The court notes that [debtors' prisons] generally fell into disfavor by the early 1800s, though the practice appears to have remained commonplace in Harpersville. From a fair reading of the defendants' testimony one might ascertain that a more apt description of the Harpersville Municipal Court practices is that of a judicially sanctioned extortion racket.... Disgraceful."
He then promptly seized control of the Harpersville Municipal Court.
* * *
Dana Burdette is a petite white woman with auburn hair and, at 37, a face that looks a decade younger. She has three kids and, like many other Harpersville residents, has worked most of her life in low-wage jobs.
In 2007, she was getting by running errands and taking care of a few older people in the area. On Thanksgiving night, one asked her to drive him to a relative's house for the holiday because he had been drinking.
Near the intersection in Harpersville, an officer pulled Burdette over and ticketed her for driving without a license--a common occurrence in Alabama, where an unpaid ticket can lead to automatic suspension. Although the car belonged to the man she was driving, she was also ticketed for an expired tag, no proof of insurance, and possession of drug paraphernalia after the officer found a pipe under the seat. "The car doesn't belong to me, it's not registered to me, none of that had nothing to do with me," Burdette said. "But here I am, in all this trouble."
By January 2007, Harpersville's crowded court had gone from convening monthly to every other week. Those who arrived early could claim a seat among the dozens of chairs in front of the dais; the rest stood as they waited for Judge Larry Ward to call their case.
Ward was the longest-serving judge in Alabama's 274 municipal courts, which are often homespun affairs: a folding table and chairs in a town hall. Appointed by the local governments, municipal judges are required to be licensed to practice law in the state, but they need not have much legal experience. Though Ward earned a law degree from the University of Alabama, he never practiced. Instead, he worked as a bond salesman for Morgan Keegan & Company, often selling bonds to the same small towns over whose courts he presided. At one time, he served as a judge in thirteen different municipal courts in central Alabama. He ruled in Harpersville's court for over a decade.
It was Ward whom Burdette faced that day in Harpersville's town hall. "He made us sign this paper saying we waived legal counsel at the time," she recalled. Burdette didn't think much of it: "I didn't know you could get a lawyer for a traffic ticket and didn't think I needed one--it was a traffic ticket."
Her fines for the three charges added up to $2,922, court papers show. Ward sentenced her--and others who said they couldn't pay their full fines that day--to probation. Once a means of allowing convicted offenders to stay out of jail on the condition of good behavior, probation had now become a court-sanctioned tool for debt collection.
Burdette shuffled into the mayor's office, where representatives from JCS processed the new probationers. She signed the paperwork and, several days later, reported to the JCS office in nearby Childersburg, where she paid her probation officer $100. Of that, $45 went toward her fine, $10 toward a one-time "start-up fee," and the last $45 went to JCS as a monthly fee for service.
Burdette didn't think she was guilty of all of her charges, but probation seemed easier than mustering the energy it would take to fight them. She was already struggling to keep working and to care for her kids and her sick parents. She didn't need one more thing on her plate.
By February 2008, however, Burdette was in arrears, prompting JCS to send her a letter stating that if she did not pay $400 immediately, her probation could be revoked and she could go to jail. Following that letter, in a hearing Burdette did not attend--she said she'd never received notification in the mail--Judge Ward revoked her probation and signed a warrant for her arrest.
* * *
By most accounts, the first private probation efforts started in Florida in the 1970s, when the state allowed the Salvation Army to run misdemeanor probation services in an effort to curb growing criminal justice costs. The idea took hold slowly at first, with Tennessee and Missouri passing laws to allow the practice in the late 1980s. Companies now operate in small-government states in the Mountain West--Idaho, Montana, Colorado--but in the past decade, the practice has taken particular hold in the South, with dozens of companies in states like Mississippi, Alabama, Tennessee, Florida and Georgia. Today, private probation companies operate in at least twelve states, although it is difficult to estimate how many people are sentenced to private probation each year.
Each system is slightly different, but controversy--and legal challenges--have followed many of them. "One of the darker realities of this whole business is that some of the poorest communities and counties in the country are among the best opportunities," said Chris Albin-Lackey, a Human Rights Watch senior researcher on business and human rights and the author of a critical report on the industry released in February. "Where you have a lot of people who are struggling to pay down relatively small financial penalties they owe to their local courts, probation companies can come in and get large volumes of people under their supervision."
In July 2012, a New York Times story and Judge Harrington's scathing ruling in the Harpersville case brought national attention to the industry. JCS subsequently hired a former associate justice of the Alabama Supreme Court, Bernard Harwood, to review its practices. He found that the company was doing its job, and also that any jailing for debt was not the fault of JCS, because private probation companies do not have the legal authority to jail people directly or to determine indigency. That, Harwood found, was the purview of the court.
JCS did not respond to The Nation's repeated requests for an interview. Yet an analysis by The Nation, based on court documents, interviews and jail records, offered a more complicated portrait of JCS's close working relationship with Harpersville's municipal court. In depositions, court and probation staffers described how, when a probationer did not pay, JCS would send a letter demanding that the person make an immediate payment or face jail time, much as what happened with Ford and Burdette. If no payment was made, the company would then petition the court to revoke that person's probation. The court would follow up with a hearing, and if the probationer did not appear, Judge Ward issued a warrant for arrest. These warrants were filed for a variety of charges--failure to appear, probation violation and contempt of court--yet they stemmed from a failure to report to JCS to pay fines and fees.
The Alabama attorney general has seized the records of the Harpersville Municipal Court in an ongoing criminal investigation, which means that until those records are released, an exact count of the number of people imprisoned for failure to pay will be impossible. But The Nation's investigation found that Harpersville punished the failure to pay fines both frequently and heavily. In fact, people arrested on those charges often remained in jail far longer than those charged with more serious offenses, such as drunk driving or assault.
Of the more than 320 people booked on DUI charges between January 2008 and September 2012, under 20 percent spent more than a night in jail. Meanwhile, during that time, about 75 percent of the nearly 390 people booked on charges commonly linked to not keeping up with fines--failure to appear, contempt of court and alias warrants--spent at least one night behind bars. And some spent much more than that: jail records show one individual locked up for forty-one days for failure to pay fines, another for seventy-eight days for contempt of court, and a third for thirty-six days for a probation violation--that is, not keeping up with the payments to JCS.
It's unclear how much JCS reaped from its ventures in Harpersville, since its financial information is private. But the company did take a slice out of nearly every payment collected on Harpersville's behalf. In 2009, as enforcement escalated, city budgets show that Harpersville's municipal court collected $1.06 million in fees and fines--more than the $892,000 earned from all other sources of revenue.
Yet this system, meant to be "free to taxpayers," came at a cost. In 2009, the town spent a record $100,000 reimbursing jail fees to Shelby County--$31 a day for each inmate it boarded there. Interviews, depositions and documents show the city then charged most or all of that cost back to those incarcerated, pushing people ever deeper into debt. Both the city and its residents paid a premium for this new debt collection model.
* * *
In the spring of 2009, Burdette was doing well. For a year she had worked at the Piggly Wiggly in Childersburg, another small town near Harpersville, where nearly a quarter of the 5,200 citizens live in poverty. Burdette's cashier job did not pay much, but it helped her get by.
One May afternoon, she was ringing up customers when a Shelby County sheriff's deputy approached the register and asked to speak to her outside. "He said, 'I don't want to make you look bad or lose your job,'" Burdette remembered. In the parking lot, he told her he had a warrant for her arrest.
After she was booked into jail, Burdette thought she'd see a judge within seventy-two hours, as required by law. That never happened. "Nobody ever came and talked to me," she remembered. "I didn't have no clue of how I could get out."
As the drowsy Alabama summer wore on, Burdette's debt of over $2,000 grew with the daily jail fee that Harpersville added to her bill. Her family managed to rustle up $2,500, but Burdette said they were told by Penny Hall, Harpersville's clerk, that her debt was now about $5,000, and that they would have to pay all of it for Burdette to be released. "It was either pay all the money," Burdette said, "or stay."
So she remained.
Her fellow inmates pressed her for details of her crime. "'How long have you been here?' 'Months.' 'What did you do?' 'A traffic ticket.' And they'd just laugh: 'Are you serious?'" As she recounted the story, Burdette's voice rose. "There's a lady in there killing folks, and they get a bond. They get to go to court."
At the beginning of September, a voice came over the intercom: "Dana Burdette, pack up." No explanation, no court hearing. Just freedom, suddenly. She had spent 113 days in jail.
Once out, Burdette began to hear pieces of the story from people around town who had also tangled with Harpersville and JCS. Lawyers were starting to get interested in what was happening. It seemed to have started with Terrance Datcher.
* * *
The Datchers' roots in Shelby County trace back to Albert and Lucy Wallace Baker. Once enslaved on the plantations around Harpersville, the two purchased 100 acres of land in 1879. Albert tilled while Lucy became a prominent midwife.
The couple's story is one of survival in an otherwise tragic period. While slavery had been abolished, Reconstruction brought the rise of convict-leasing, which ensured that the stream of cheap labor continued. Blacks were routinely arrested for petty crimes like loitering and hit with fines they could not pay. Judges then sentenced the convicts to work off their debts in privately owned mines and plantations, where they were controlled with savage violence. As their debts accrued, a year-long sentence could turn indefinite, ended only by cash--or death.
Throughout this troubled time, however, the Datchers raised children and tended their farm--still the largest black-owned farm in Shelby County.
Terrance Datcher lives in a small cabin on the family compound, a few hundred feet from his mother's home off Datcher Way. The 34-year-old has a history of psychiatric problems and has tangled with the law over the years--for things like disorderly conduct, speeding, reckless driving--racking up debts and stints in jail. In 2007, after the town brought on JCS, Judge Ward sentenced Datcher to probation in the hopes of collecting those back fees. But Datcher, who lives off monthly government disability payments, didn't keep up. In late 2008, the company asked the court for a warrant, after which Datcher was booked again into the county jail.
That summer, after Harpersville told Datcher's mother that she would have to pay thousands to free her son from jail, she called Jim Pino and Associates, a law firm in a wealthy Birmingham suburb that had done some work for the family before. An attorney there said he would call down to the court to see what he could do. Penny Hall, the court clerk, answered the phone.
Hall had served as the city magistrate, or court clerk, for Harpersville since 2000. She worked alongside Judge Ward nearly every court day; when she couldn't, her mother--who served as a part-time court clerk--filled in.
Hall declined to comment for this story, but interviews and court records illuminate the heavy hand that the clerk exercised in a debtor's fate. Probationers described sitting in jail for weeks or months until they received a visit from Hall, who sometimes offered them a transfer to work release. Others recalled their families battling over the rapidly changing debt balances calculated by Hall. According to testimony offered during a deposition, Hall signed off on all of Harpersville's warrants and was responsible for holding the seventy-two-hour hearings for Harpersville inmates at the Shelby County Jail. But despite the twice-monthly court sessions, Harpersville's debtors could languish in jail for months.
Hall told one of Pino's attorneys it would take the full amount that Datcher owed to bond him out on the four misdemeanor charges that kept him in jail. According to court paperwork, his fines and fees had by that time grown to $9,720.43. His tab ballooned largely because of jail fees, but it also included warrant fees and a $629 public defender fee for a lawyer he was never given.
"What it amounts to is an interminable sentence," Pino said. "You're going into the hole every day. You're going backwards."
Datcher had remained in jail over the summer without seeing a judge because, as Hall testified in her deposition, she did not "get down" to the jail, about twenty miles away. He missed court dates that might have offered an opportunity to address his imprisonment, in one case because, Hall said, town police officers were attending a class and couldn't pick him up from jail. In Harpersville, personal convenience trumped due process, and Judge Ward appeared to exercise little oversight other than his twice-monthly appearances.
Many would call what happened in Harpersville a "comedy of errors," Pino said. "But 'error' implies a mistake. This is a deliberate attempt to extort money from people who can't defend themselves."
Discussing Datcher's case during a deposition, Judge Ward was asked how indigent probationers jailed for fines, then charged for their stay, could ever pay off their debt. His answer spoke to the impossibility: "You're losing ground mathematically," Ward testified, "but somebody could get a--some sort of unforeseen financial benefit and pay their way out."
Judge Ward did not respond to queries by The Nation. But in early March 2014, Alabama's Judicial Inquiry Commission, which investigates allegations of judicial misconduct, issued an advisory opinion prompted by complaints linked to Harpersville. It found that even part-time municipal judges "must be held to the same high standards [as] all other judges." That meant responsibility for following due process, for the actions of court employees, for protecting defendants' rights and for overseeing probation, public or private. Though it did not mention Ward by name, it was a scathing indictment of the practices in his court.
* * *
In jail, Debra Ford had the sense that eyes were everywhere: whenever she ate, showered or went to the bathroom, someone was watching.
Ford had been in trouble with the law before. She struggled with a methamphetamine addiction that eventually resulted in a drug conviction. For that, she had been sentenced to a stint in rehab, where the staff helped her piece her life back together. When Ford got out, fines--not serious crimes--put her back in the system. This time, it was an indefinite sentence in the Shelby County Jail, where her fines ballooned and nobody cared whether she could ever pay them.
The suggestion in March 2009 that Ford enter the county's work-release program seemed, like private probation before it, a solution to the growing problem of her fines. The warrant that landed her in jail had been issued for nonpayment of a $1,403 debt--a combination of fines and fees from her original traffic ticket and back fees to JCS. After forty-three days in custody, her bill had grown to $2,736. "Every day I thought, 'Thirty-one more dollars,'" she said.
Once in the program, Ford found a minimum-wage job working at a thrift store. But as she quickly realized, most of what she made each week went to cover the program's costs rather than her outstanding fines. With no official end to her sentence, it could be years before she was free.
In testimony offered at a deposition, Hall, the court clerk, acknowledged that the sentences Harpersville debtors served at the Shelby County Work Release Center were indefinite. Ford's sentence, Hall explained, was "up to her"; she could leave work release as soon as she paid off her fines. The sole function of work release was to collect outstanding debt, forgoing the rehabilitative underpinning of most work-release programs.
Around the time Ford entered the program, Bill Junior Hosey was arrested for public intoxication in Harpersville and booked into jail on that charge, as well as for failing to appear in court. Like Ford, he soon ended up in work release as a way to pay off his fines. Hosey used drugs and drank too much and, according to his sister, Linda Srygley, suffered from a degenerative bone disease that had withered his nearly six-foot frame down to 128 pounds.
"They picked him up for public drunkenness, but that's just a minor thing," Srygley said. "I couldn't understand why they put him in work release when he could hardly walk in the first place."
Less than a month later, Hosey was dead.
The death records show he died in work release of a "multiple drug overdose." Traces were found in his body of at least six different pharmaceuticals taken to address depression, pain and addiction. The manner of death was listed as "accident." The few worldly possessions Hosey left behind included two pieces of candy, one cigarette lighter, two quarters and one nickel.
News of Hosey's death leaked to Ford despite the strict separation of men and women at the work-release program. "It's not right," Ford said. "We're not animals--we're human beings. And if we're trying to pay our debt to society that we did owe, don't keep punishing us."
Two years later, 45-year-old Rebecca Allred would die of liver failure in the Shelby County Jail, after spending five days locked up for nonpayment of fees associated with a car tag violation in Harpersville.
* * *
About a month after Hosey's death, while working her shift at the thrift store, Ford read a newspaper article about a woman who had been repeatedly jailed by a nearby town for failing to keep up with fines from her traffic tickets. Ford felt as if she were reading her own story, so she called the attorneys working on the woman's case; they put in her in touch with another lawyer, who offered to take her case pro bono.
By the spring of 2009, the lives of Burdette, Ford and Datcher were beginning to braid together. Independently, each had attracted the attention of attorneys who, incredulous at first, soon realized that something in Harpersville seemed very wrong.
Eventually, other courts began to realize it, too. That fall, Pino filed a writ of habeas corpus with Shelby County's Circuit Court contending that Terrance Datcher was being wrongfully imprisoned. In early September 2009, Judge Harrington granted it. That ruling validated what many who had been shuttled through the Harpersville system felt: the justice system was broken.
News of Datcher's release reached other attorneys working on similar cases, including those of Debra Ford and Dana Burdette. The attorneys filed suit against Harpersville in March 2010. Two years later, Judge Harrington published his ruling denouncing the system fostered there by JCS and court employees as a "judicially sanctioned extortion racket." Many of the same attorneys would file a federal lawsuit in 2012 against the neighboring town of Childersburg, where Ward also presided and many of the same alleged abuses by JCS took place. That lawsuit is pending, as are the key claims in the Harpersville case.
In addition to sharing a judge and a probation company, Harpersville and Childersburg for years shared a lead probation officer, Carol Chapman, who worked for JCS. She had served as a probation officer for Datcher, Ford, Burdette and countless others sentenced to probation with JCS in Shelby County. Described by many as harsh and unwilling to work with them when they were short on money, Chapman was also, the court documents show, a thief. For at least two years, she had been siphoning off the probationers' payments for their fees and fines and funneling them into her own bank account.
Chapman was arrested in late 2010 and booked into the Shelby County Jail, where many of her clients had ended up. All told, Chapman stole $57,246.90 from JCS, beginning in January 2009--the same month her client, Debra Ford, was booked into the Shelby County Jail, and the same month she petitioned to have Terrance Datcher's probation revoked. Chapman later pleaded guilty to theft of property in the first degree, received five years' probation overseen by the state, and agreed to pay back what she had stolen from JCS.
Last December, Judge Harrington ordered that the 930 people who had outstanding fines in Harpersville would have their violations considered paid in full, and any outstanding warrants associated with them voided. At the same time in Leflore County, a rural community in the Mississippi Delta, the board of supervisors voted to cancel its contract with JCS after nearly a year of debate.
Yet the private probation industry remains undeterred and, to a large degree, unscathed. An industry-supported bill introduced in Alabama last year would extend private probation, now limited to municipal courts, to state courts, thereby expanding the market for companies across the state.
Meanwhile, as the Harpersville case wound its way through the courts, a prison healthcare corporation called Correctional Healthcare Companies bought JCS, allowing its new parent company to expand into the supervision and enforcement industry. And six months after Judge Harrington's ruling, GTCR, a Chicago-based private equity firm, bought Correctional Healthcare Companies, including its wholly owned subsidiary JCS. It was a sign that the finance world believed criminal justice would remain good business.
* * *
Last spring, on a sunny afternoon in Childersburg, Dana Burdette sat in a booth at a local fast-food restaurant not far from her job as a store clerk.
"There's no way that I have the money to afford to pay nobody," she said, acknowledging that her troubles had not gone away. Judge Harrington's order had erased her fines in Harpersville, but subsequent tickets for driving on a suspended license mean she's still on probation with JCS in nearby Sylacauga.
"For the past four years, I have spent cleaning up all the mess I made," Burdette said. "Yet I still have all this over my head that I can't get free of."
After she finished her shift, she would climb back into her pickup, hoping to make it home without getting pulled over one more time. She didn't see any other option.
"I just have to take the risks myself," she said. "Which I know is probably wrong. But if you're a poor, minimum-wage working mother, you have to do what you have to do to make sure your kids--and my dad--is took care of. I don't have anyone else to depend on."
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