Articles

Profiting from the Poor: Offender-Funded Probation in the USA

Published
15/03/2016
Type
Article
Author(s)
Michael Teague
Corresponding Authors
Michael Teague, Senior Lecturer in Criminology, University of Derby
DOA
DOI

Abstract

The privatisation of probation provision in England and Wales is now neither tentative nor experimental. Offender-funded probation in America is an inevitable by-product of the introduction of market forces into probation, and a significant growth area. A comparative analysis of the delivery of privatised, offender-funded probation in the USA is employed in order to illuminate one possible future trajectory for probation in England and Wales. The experience of service users in southern US states is considered, as is the evidence indicating that an insufficiently regulated and privatised system is primarily driven by revenue generation rather than rehabilitation. While many US privatised probation companies operate in a principled way, a number of cases involving these companies have culminated in the incarceration of service users who were unable to afford supervision fees. When a privatised company’s survival depends on its ability to raise revenue, this may impact on the quality of intervention and the experience of service users. We are not yet at a point where offender-funded intervention is advocated in England. Nevertheless, there is a need to further reflect upon ethical, fiscal, political and practice issues before we irrevocably commit probation further down its current path.

Introduction
The study of cross-cultural and cross-national criminology and penology has the potential to offer a range of insights into our own system of criminal and community justice (Nelken, 2010; Pakes, 2015). With the advent of globalization, the speed of interchange in penal developments has accelerated (Nelken, 2011). This involves not just the exchange of academic and practice ideas, but also the ability of multi-national global corporations to become active players in criminal and community justice systems around the world. Cavadino and Dignan’s (2005) definitive comparative study of international penal systems analysed the key differences in punitiveness between countries with neoliberal, corporatist or social democratic political systems. They viewed the USA and the UK (along with Australia and New Zealand) as exemplars of neoliberalism, and mounted a persuasive argument that neoliberal countries have the highest incarceration rates, not least because of the impact of their political and economic structures.

An area in comparative criminology which has attracted substantial academic interest is the ‘apparent convergence of penal policy between ‘neoliberal’ Anglophone jurisdictions (which is) exemplified by the adoption of a punitive and politicized approach to crime and punishment’ (Jones & Newburn, 2013:439). Attention has been focused on the way in which crime control policies have been imported to the UK from the USA (Newburn, 2002; Jones & Newburn, 2006, 2013). To achieve insight into how probation may operate in future years in England and Wales, it is worth turning to our neoliberal American counterparts for a comparative vision of probation in different jurisdictions. Some southern US states (for example, Georgia) offer a dystopian vision of how for-profit probation may function without proper regulation. An example of probation delivery from California is also examined.

Garland (2002) argued that the penal welfarist philosophy underpinning our criminal and community system was being supplanted by popular, and populist, punitiveness. His analysis of the culture of control noted the increased focus on risk assessment and public protection, both of which paralleled the embracing of incarceration as the answer to crime control. As the shift to punitivism gained purchase in USA during the 1970s and 1980s, probation’s rehabilitative impetus waned and political support for a more punitive, ‘tougher’ orientation grew. The result of this was as unsurprising as it was inevitable: towards the end of the twentieth century, more weight was accorded to probation’s law enforcement role, while rehabilitation and reintegration were deprioritised.

The American probation system
While it is inherently difficult to measure punitiveness, it is common currency amongst criminologists that, if imprisonment rates are employed as a barometer, America is the most punitive country in the world (for example, Teague, 2008; Pratt, 2009; Travis, Western et al., 2014). Though mass incarceration has been an intrinsic part of the nation’s penal culture for around four decades (Gottschalk, 2006, 2015), the punishment imperative has also firmly expressed itself within probation. Phelps (2013) analyses the upsurge of community supervision as a US criminal justice sanction and considers its relationship to mass incarceration. Her theoretical model locates probation within the wider continuum of punishment, and concludes that the paradoxical impact of probation is that it ‘exerts both a prison alternative and net-widener effect, with the two forces often cancelling one another out’ (2013:72). ‘Net widening’ refers to the potential of community sentences to convey the unintended consequence of widening the overall net of social control and punishment, resulting in those who might otherwise have been dealt with informally being channelled into the justice and penal systems (McMahon, 1990).

As in the UK, the role of the US probation practitioner was originally designed to promote rehabilitation, and provide social support geared to prevent reoffending. However, as Clear and Frost (2014:156) ruefully conclude, the punishment imperative imposed a more nuanced effect, that of ‘distorting the role of the probation or parole officer’. This distortion facilitated a shift in probation’s role, leading them to conclude that probation and parole practitioners in the USA now ‘mostly function as community surveillance workers’ (2014:157). While this may be contested - it has, for example, been argued that the role of contemporary US probation practitioners is less law enforcement-oriented than it was two decades earlier (Hsieh, Hafoka et al., 2015) - there has been a broad shift in correctional ideology away from rehabilitation oriented intervention.

The criminal and community justice system in the United States is not a monolithic or homogenous entity, and attitudes to - and levels of - correctional intervention vary at a local, state, and national level. The decentralised and sometimes fragmented nature of contemporary US probation can mean that large cities, for example, have two or three probation agencies. The first manifestations of what we would now recognise as probation intervention appeared in America in the mid to late 1800s, though it was not a national phenomenon, evident in every state, until 1956 (Petersilia, 1997; Barton-Bellessa & Hanser, 2011). Phillips (2010) offers comparative insight into the origins of probation in England and Wales and the USA, and way in which these origins have influenced the agency’s organisational structure, value base, and professional practice. Teague (2012a) provides a comparative assessment of the contemporary position of probation in both countries within the context of neoliberal political and economic structures. It is evident that probation in both nations has become progressively more concerned with what we might label as ‘managerialism’ (Garland, 2002). The target and audit culture of key performance indicators, efficiency, measurable outcomes and cost-effectiveness (Whitehead, 2007; Ashworth, 2009; Phillips, 2011) which manifested itself in England and Wales was equally evident in America.

There are areas of US practice that will immediately resonate with UK probation workers. For example, American probation practitioners have confronted ‘enormous challenges in their work, including large caseloads, limited resources, offender management difficulties, and criticism of high recidivism rates and the related threat to public safety’ (Hsieh, Hafoka et al., 2015:2). Even so, there is evidence that the role of the probation officer supervising service users in the community has evolved in recent years from that of ‘a condition-driven brokerage and monitoring specialist to a risk-focused direct-service interventionist that uses behavioural change strategies to promote public safety and reduced victimization’ (Robinson, Lowenkamp et al., 2015:3). What this appears to mean in practice is that US probation workers are now required to score and utilize validated risk and needs assessment instruments in order to measure risk factors and needs that, if addressed, may lower the prospect of reoffending. This would also be recognisable to the UK practitioner.

The qualifications to practice as a probation officer in the USA differ according to the specific state in which they train, but a degree in criminal justice, social work, or an associated field is generally required (Clear, Reisig et al., 2016). In addition, some states seek previous practice experience in either criminal justice or a treatment related field. This is not dissimilar to the way in which UK probation officers have been trained. While the UK observer may recognise some of the intervention in the USA, other spheres of practice remain difficult to reconcile with the value base to which many UK practitioners adhere. One example of this is the degree of physical force that is officially sanctioned in some jurisdictions for probation practitioners to use with non-compliant services users (Teague 2011). Another factor which has played a significant role in the development of US probation has been the carrying of firearms by some staff (Phillips, 2010). Some states classify probation officers as peace officers. They are therefore required to engage in training which reflects that status, which may include physical training and firearms proficiency. The seismic changes taking place in probation in England and Wales today notwithstanding, neither the use of physical force on service users nor armed intervention seem likely to ever manifest themselves in UK probation practice.

There were one million people on probation in America in 1980. By 2010 this had risen to more than four million (Clear & Frost, 2014:18). The total probation caseload for England and Wales in September 2015 was 234,229 people (Ministry of Justice, 2016:11). This figure includes those subject to statutory supervision following release from prison. A rough calculation undertaken for this article indicates that if we made people subject to community supervision in England and Wales at the same rate as the USA, we would now have no fewer than 803,858 people on supervision. The reach of probation supervision in America is significantly greater than in the UK. The community supervision population (including both those on probation and those on parole) in the USA reached a peak of 5,119,000 supervisees in 2007. Since then, that total has been gradually falling by average of 1.2% each year. At the end of 2014, for example, approximately 7 in 10 people on correctional supervision were supervised in the community, either on probation (3,864,100 supervisees) or parole (856,900) (Kaeble, Glaze et al., 2016:2). The most common offence for which people are sentenced to probation supervision is a drug offence (Alexander, 2010:102).

Charging for supervision: offender-funded probation
Given that the privatised probation provision in England and Wales is no longer tentative or experimental, it is instructive to examine the delivery of for-profit intervention in America. The US embrace of private sector intervention in criminal and community justice has extended to jail book-in fees at the time of arrest, bail investigation fees, pre-sentence report fees, and probation supervision fees; all must be paid upfront by the offender (Alexander, 2010). While the number of US probation agencies charging service users fees for supervision has risen significantly in recent years, offender-funded probation is not new. The collection of fees from probation supervisees commenced in Michigan, in 1929. By 1990, at least 28 states were charging service users for probation supervision. Some agencies require multiple fees from individual offenders (APPA, 2011).

Two issues arise with the charging of fees. Firstly, whether or not fees are compatible with the philosophy and ethos of probation, and secondly, the more pragmatic fiscal question of whether or not charging impedes the successful conclusion of supervision. The classic argument against supervision fees is that charging creates an incentive for service users with limited financial resources to reoffend, as they must acquire funds to pay the fees. The American Probation and Parole Association state that fees effectively ‘put a price on probation which some offenders may not be able to pay’ (APPA, 2011:1). However, offender-funded supervision is an inevitable by-product of the introduction of market forces into probation. There are privatised companies delivering offender-funded probation services in the states of Georgia, Alabama, Mississippi, Florida, Tennessee, Colorado, Idaho, Utah, Washington, Missouri, Michigan, and Montana (Human Rights Watch, 2014); for-profit intervention is a growth area. When the survival of a private company depends on its ability to raise revenue, then this may impact on the nature of intervention (Teague, 2011).

The American justice system distinguishes between felonies and misdemeanours. Felonies, the most serious offences, generally attract lengthy prison sentences of over a year in a state or federal prison. The law restricts the severity of sentences which may be imposed for misdemeanour offences to a maximum of one year behind bars. The changes in probation structure in England and Wales introduced by Transforming Rehabilitation (Ministry of Justice, 2013; McNeill, 2013; Senior, 2013) led to around 70 percent of probation’s core work, relating to supervisees assessed as presenting a low or medium risk, being put out to tender. Interestingly, offender-funded supervision in America is widely used in misdemeanour cases; that is, cases presenting a lower or medium risk. Just as the public sector in England and Wales continue to work with those service users presenting the highest risk, it is notable that offender-funded probation in America appears to be less widely used with those who present the highest risk.

Cases involving private probation companies have previously culminated in the incarceration of service users that could not afford to pay those fees. The Southern Poverty Law Center (SPLC) (2016) in Alabama is currently conducting a vigorous campaign for the abolition of what they label as ‘the modern-day debtors’ prisons prevalent in the Deep South’. A key plank of this campaign is the drive to end government use of privatised probation funded from fees paid by service users for their own supervision. These fees are demanded by what the SPLC (2016) labels as ‘private, so-called “probation” companies that use the power of the justice system to extort payments from the poor’. Alexander (2010:155) observes that probation officers in a number of US states demand that offenders must surrender 35 percent of their income towards ‘fines, fees, surcharges and restitution’.

The American Civil Liberties Union (ACLU) (2015) filed a federal lawsuit on behalf of Kevin Thompson, a young black man from DeKalb County in Georgia. This contested the debt collection techniques employed by a private 
to pay his supervision fees to the company, as well as court fees. Thompson’s account is instructive:

‘…the DeKalb County Recorder’s Court ordered me to pay $810 in fines… When I told the judge that I could not afford to pay $810 that day, she put me on "probation" with JCS and told me that I had 30 days to pay. Like other people who couldn't afford to pay fines on sentencing day, I was on "pay-only" probation… When my 30 days were almost up, I went to see my JCS officer. She charged me with violating probation for failure to pay court fines and JCS fees… I didn't have the money to pay... I hoped the judge might give me an extension of time to pay or community service because I was trying my best to pay. Instead, the judge immediately asked to hear from the JCS officer next to her, who recommended sentencing me to 10 days in jail if I couldn't pay my balance that day.’ (Thompson, 2015)

Thomson was not a high risk offender; his original offence involved a traffic ticket. The ACLU argued that the probation company’s debt collection activity was coercive. It is difficult to conclude that this practice promoted any meaningful rehabilitative or reintegrative experience; rather, it appears to be primarily geared to revenue generation and shareholder profit. However, there are no bleeding hearts at JCS, which is reaping the financial benefits of outsourcing probation. According to the chief executive and chief marketing officer discussing an earlier case: ‘We hear a lot of ‘I can’t pay the fee’ It is not our job to figure that out. Only the judge can make that determination’ (Bronner, 2012).

One of the most disquieting results of imposing the role of revenue generator on probation practitioners is that they have become embroiled in a system which appears to reinforce oppression in terms of race. In DeKalb County, for example, African Americans constitute 54 percent of the population. However, almost all of probation service users incarcerated by the courts as a consequence of their inability to pay the high probation supervision fees are African American. This disproportionality can be found in a range of courts in the Deep South. There are echoes here of the post-Civil War era, when former slaves were charged with minor offences, then had weighty financial penalties imposed upon them. Incarceration followed swiftly when they were unable to pay their debts (Alexander, 2010).

The Human Rights Watch (2014) campaigning group has undertaken research in the states of Georgia, Mississippi, and Alabama and pinpoints a range of cases that resulted from the outsourcing of probation intervention. In August 2013, the city of Greenwood in Mississippi had over 1,200 people who were subject to fee-driven probation supervision with JCS. The total population of Greenwood is 16,000 residents. In Harpersville, Alabama, a judge publicly stated that a private probation company and its local government partner were operating what he bluntly labelled as a ‘judicially sanctioned extortion racket’ (Human Rights Watch, 2014:47). Local government is attracted to privatised probation because, in most cases, it costs them precisely nothing. The company picks up the responsibility for, and delivery of, supervision, and collects the revenue. This has appeal for cash-strapped local government, trying to fund services in a climate of continuing financial austerity. The Judicial Inquiry Commission, part of Alabama state’s Supreme Court, stated that judges, not privatised probation companies, must decide who is (and is not) capable of paying. This is a critical point when the inability to pay results in incarceration.

In Bearden v. Georgia (1983), the US Supreme Court ruled that probation supervisees may not be incarcerated solely because of their inability to pay a financial penalty, because this would contradict the values of fairness and justice enshrined in the 14th Amendment to the American Constitution. While sentencers are guided to consider the supervisee’s ability to pay before incarceration for non-payment is considered, the reality appears to be that many southern local courts all too readily allow private probation companies to influence their decisions. This is problematic, not least because of the potential conflict of interest that may arise when companies provide monetary bonuses to probation staff which are calculated according to the fees they have collected from supervisees. This may involve setting ‘specific monetary targets for fee collections and (the payment of) bonuses to probation officers…who meet or exceed them’ (Human Rights Watch, 2014:43). In an extreme scenario, the collection of fees in a target-focused organisation may even be viewed as a barometer of both the response of the service user and of the professional success of the individual probation officer.

In August 2013, the state of Georgia had 34 private probation companies registered with the state. Approximately 175,000 people in the state of Georgia are subject to probation supervision for misdemeanour offences. They pay around $125 million each year in fines and surcharges. The rate of people subject to probation supervision in Georgia for misdemeanours is more than four times the national average (Fiftal Alarid, 2015:282), and private providers supervise 80 percent of people on probation. An official state report concluded that ‘some providers’ reporting and payment policies were likely to increase probationer non-compliance’ (Griffin & McGuire, 2014:1). What happens in essence is that people convicted for misdemeanour offences who lack the financial resources to pay hefty fines then find themselves immediately subject to sizeable monthly supervision fees charged by a privatised probation company. This is unequivocally probation for profit, not for reintegration.

The privatisation of probation in Georgia has handed an extraordinary degree of law enforcement power over the lives of poor people to private companies. Focused on the collection of inflated monthly supervision fees aimed at the maximisation of profit, these companies do not prioritise rehabilitation. While monthly reporting is the norm, the role of supervision is marginal, and would hardly be recognisable to UK practitioners. Service users pay prior to meeting their supervising officer, and often, the sole aim of the session is revenue generation. The glaring omission is any attempt to engage with relevant criminogenic issues. Employment, housing, domestic abuse or alcohol or drug use are not at the forefront of the supervisor’s agenda, not least because they are not lucrative areas of endeavour. If the primary goal of service provision is revenue generation, the likelihood is that these needs remain unmet. Probation officers’ salaries and bonuses may be linked to the income they generate from service users, which has led to allegations that staff have resorted to confronting service users with the threat of arrest if they attend for supervision without sufficient funds to pay the supervision fee in full (Southern Center for Human Rights, 2008).

CASC: an alternative model of intervention
The US justice system is not embodied in a monolithic, all-encompassing institution. Reflecting this diverse structure, probation functions within a varied network of federal, state, and local community justice systems. This diversity permits a broad range of approaches to intervention; practice in southern states such as Alabama or Georgia may be dissimilar to practice in, for example, New York or California. How probation operates in different geographical areas may be a function of the jurisdiction in charge of that area. An account of an alternative model of a public/private probation partnership in California offers a demonstration of how such intervention may enhance the experience of service users. California has an extensive history of providing a range of innovative alternatives to imprisonment, and the 2011 Public Safety Realignment Act devolved responsibilities for supervising offenders and parolees assessed as relatively low risk from California State’s Department of Corrections and Rehabilitation to the local county level (Owen & Mobley, 2012). Signing the legislation, the state Governor labelled the prison system as ‘a revolving door for lower-level offenders… Cycling these offenders through state prisons wastes money, aggravates crowded conditions, (and) thwarts rehabilitation…’ (Brown, 2011).

Realignment altered California’s probation system, and encouraged counties to develop and implement alternatives to incarceration. The legislation ensured those counties enjoyed a degree of autonomy in planning, designing and allocating community supervision and support services. This led the San Francisco Adult Probation Department (SFAPD) to expand its existing practice model with a range of strategies, including the creation of the Community Assessment and Services Center (CASC). On an academic trip to California in 2015, I spent a day at CASC. It is an innovative one-stop community corrections hub which opened in 2013 in the centre of San Francisco. CASC incorporates principles of restorative justice and utilises an approach rooted in accountability, responsibility and opportunities for long-term change (Still, Adachi et al., 2015). Its model of intervention employs a strong focus on collaborative case management. It serves an average of 600 former prisoners every year, with the declared aim of providing service users with ‘transformative and motivational opportunities that keep them from recycling back through the criminal justice system’ (Adachi, Garcia et al., 2012:20).

On-site probation supervision was provided in a welcoming, inclusive and informal social setting. Supervisees met with their probation officers and were also able to use other CASC services in separate areas of the building. An impressively comprehensive range of services, including education, anger management, employment readiness, parenting, substance misuse and relapse prevention, and gender responsive programmes, was on offer. It was evident that CASC’s work assists service users to develop their resiliency and the self-sufficiency skills needed to complete their community reintegration. As a visitor, I was struck by the enthusiastic and responsive manner with which the practitioners engaged the service users. They radiated a sense of openness and availability for those users. (It should be said that I was also struck by the whole-hearted support for arming probation officers articulated by those same practitioners.)

CASC does not operate an offender-funded model. It is a partnership between SFAPD and Leaders in Community Alternatives, Inc. (LCA), a private company which is one of California’s leading private providers of community-based services. Their services ‘are built on evidence-based and best practice designed to break the cycle of recidivism’ and their approach is ‘holistic… with programs addressing cognitive and behavioral issues, and alcohol and substance abuse’ (Leaders in Community Alternatives, 2015). However, CASC’s public sector partners also included the City’s Department of Public Health and Department of Child Support Services. These agencies attended CASC regularly, in order to assist service users in accessing health, income and other benefits. This highly effective joint operation by the SFAPD and LCA has benefitted service users, and fulfilled a range of needs which may otherwise have remained unmet. There is no doubt that many privatised probation companies in the USA operate in a principled and moral way, and CASC provides an example of the potential of a public sector/private sector partnership. CASC has been in existence for less than three years, and detailed academic research evaluating its effectiveness is awaited.

Conclusion
A comparative analysis of the delivery of privatised, offender-funded probation in the USA has been employed in order to illuminate the possible future trajectory of probation in England and Wales. It can be argued that the political realities in the UK starkly differ from those which prevail in the USA, and that offender-funded probation does not currently feature on any UK political party agenda. However, with no end in sight to the era of acute fiscal tightening, private probation’s perceived capacity to deliver efficiency and effectiveness while simultaneously saving taxpayers’ money will not lose its attraction for neoliberal governmental strategists. We have already noted that policy transfer in criminal and penal justice is a reality, particular in the arena of privatisation. Jones and Newburn (2006:14) observed that the strongest example of policy transfer from the USA to the UK in their research occurred in the area of the ‘commercialization of corrections’. England and Wales currently possess the most privatised prison system in Europe (Teague, 2012b). When the company then known as Group 4 Remand Services Limited opened the UK’s first private prison in 1992, no-one anticipated that 18 percent of the entire prison population of England and Wales (some 15,446 prisoners) would be held in privately managed prisons by 2015 (Prison Reform Trust, 2015:69). This compares to the 8 percent of the US federal and state prison population (124,100 inmates) who were held in privately run prisons in 2014 (Kaeble, Glaze et al., 2016:22). These figures confirm that we currently lock up a significantly higher proportion of inmates in private prisons than the USA, the nation that many view as the standard bearer for privatised justice.

Prisons have been at the forefront of the shift towards privatisation in the field of criminal and penal justice in England and Wales over the last two decades. Our national perspective on the acceptability of privatised imprisonment has undergone a sea change over this period, and there is, at the least, a possibility that our perspective on privatised probation may be similarly susceptible to change. The example of CASC in California indicates that adherence to the reintegrative values of probation and intervention premised on the rehabilitative ideal may be achievable within the framework of a public sector/private sector partnership. CASC’s construction of intervention is a world away from the ‘judicially sanctioned extortion racket’ (Human Rights Watch, 2014:47) that constitutes probation in Harpersville, Alabama. However, the evidence from a number of southern US states indicates that some of the poorest people in America have become a lucrative business opportunity for these companies. Some have argued that the notion of rehabilitation has been effectively jettisoned, lest it impedes shareholder profit (Human Rights Watch, 2014).

There is a pressing need to further reflect upon ethical, fiscal, political and practice issues before we irrevocably commit probation further down its current path in England and Wales. While we are not yet at the point where offender-funded intervention is advocated, much can change over a parliamentary term. From the perspective of the predominant neoliberal ethos, offender-funding is arguably a logical next step in the process of privatising probation. The worst case scenario for England and Wales is that we accelerate, full-tilt, down the American road of privatised intervention, where the justice system functions as a ‘self-sustaining cycle of gathering increasing numbers of poor people, mostly men and mostly black, into its clutches, profoundly damaging their life chances, and returning them to communities bereft of the capacity to absorb them’ (Clear & Frost, 2014:157). This would amount to nothing less than the betrayal of the rehabilitative ideal, and culminate in the deconstruction of over a century of creative and dedicated reintegrative intervention. Rather than proceed any further down the road of offender-funded intervention and outsourcing probation, we could choose to learn from those countries which have chosen not to delegate the delivery of probation to non-state entities, and which promote a transformative agenda of desistance.

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