Probation Co. Falls Flat In Suing Judges For Amnesty Program

By Emma Cueto | August 4, 2019, 8:02 PM EDT

Amid growing scrutiny of the fees that private companies charge for probation services, one company took a drastic step after a local amnesty program put it out of business: it sued the judges that it saw as responsible for the loss of revenue.

As tactics go, however, it was not very successful.

On July 26, the Eighth Circuit ruled that Arkansas state Judges David Bowling and Tommy Fowler were immune to a suit by The Justice Network Inc. thanks to a doctrine that protects judges from decisions they make in their official role as judges.

It also refused to revive claims against Craighead County and several municipalities served by the judges, saying that the various jurisdictions weren't liable for the judges' actions.

Although the court's reasoning did not delve into the merits of the amnesty program that Judge Bowling and Judge Fowler implemented in Craighead County or the role of private companies like Justice Network in the criminal justice system, the ruling comes at a time when such companies are increasingly under fire and many cities and states are rethinking their relationships with them.

In Craighead County, Justice Network started offering services in 1997, providing services to people on probation such as drug screening, curfew monitoring, coordinating counseling and monitoring community service work, according to court documents. Like many such companies, the company was not paid by the courts or the local governments for its work but instead made money by charging monthly fees to people on probation.

The typical fee was $35 per month and an extra $15 per month if the person required community service supervision, according to court documents. The company also charged fees for late payment and required probationers to pay the company's costs if it had to hire a collection agency, court documents said.

According to a 2018 report on private probation companies by Human Rights Watch, this type of setup is common, and the fees can be disastrous for low-income people, especially those with dependents, living on a fixed income or working for minimum wage.

"Many courts routinely make payment of court costs and private probation fees a condition of probation," the report said. "Failure to pay is then grounds for the private probation officer to issue a violation of probation, considered a technical violation."

Those violations typically lead to a hearing before a judge who decides whether to revoke probation and impose a jail or prison sentence, according to the report. Since the company employees often testify in such hearings, probationers worry that the company may retaliate for their failure to pay by recommending incarceration, the report found.

The report found that it was rare for people to be jailed solely for failure to pay, but that people were often locked back up for failing to meet all of the conditions for parole because they could not pay the fees associated with the requirements, such as monitoring equipment or classes.

In Craighead County, Judge Bowling and Judge Fowler campaigned in 2016 on making changes to the probation system, especially the fees it charged, according to the decision. And once elected, they established an amnesty program that forgave the fees of many of the people on probation in the county.

Justice Network lost revenue, closed its local office and let 12 employees go.

In its 2017 suit, Justice Network argued that the judges had unilaterally decided to implement the amnesty program, and that their decision to nullify fees owed to the company illegally interfered with the company's contracts with probationers.

"Fowler and Boling have used their judicial office and powers to unlawfully take The Justice Network's substantial property rights without due process of law," the company said.

The suit was dismissed by the trial court due to judicial immunity. On appeal, Justice Network argued that the implementation of the amnesty program was not a part of the judges' official duties, and thus they were not immune from suit. The appellate court disagreed, saying that the judges' actions were related to their general duties as judges and fell under their authorized powers.

Counsel for Justice Network and the other parties did not respond to a request for comment.

Lisa Foster of the Fines and Fees Justice Center said that although she has never seen a company try to sue judges for preventing them from collecting fees, many companies are trying to find their footing amid growing criticism of private probation companies.

Counties and cities often also charge fees, she said, but unlike government entities, private companies are looking to turn a profit, so their fees are higher.

"Often the contracts with the local court or the county ... [allow] the private probation company to set fees at whatever it thinks is reasonable," she said. "These are for-profit entities, so they're clearly charging more than it costs them to do the work — otherwise they wouldn't make any money."

This has led to a backlash, she said, and many state and local officials are making an effort to move away from these arrangements or to rethink them. In other places, lawsuits by advocacy groups, such as a challenge in Georgia by the Southern Center for Human Rights, have spurred changes.

And that new sense of skepticism also applies to judges like Judge Bowling and Judge Fowler, she added. "We are seeing places where judges are paying more attention," she said.

--Editing by Brian Baresch.

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