Tuesday, July 03, 2012

Courts as revenue centers: Mounting probation and court fees

The New York Times today has a front-page story titled, "Poor land in jail as companies add huge fees for probation," and the story mentioned a couple of recent studies that focused in part on Texas' situation regarding probation and court fees:
Here are a few Texas-related tidbits from the Brennan Center study:

"In Texas, a preliminary study by the Texas Office of Court Administration showed that people released to parole owe anywhere from $500 to $2,000 in offense-related debt (not including restitution). A chart used by court clerks in Texas inventories at least 39 different categories of court costs in misdemeanor cases and 35 types of costs in felony cases."

Texas is one of eight states that allow suspension of drivers licenses for unpaid fees. (See footnote 159, and here.) According to the Texas Office of Court Administration (see below) "In practice, this enforcement tool is currently only used when the offender has been convicted of a Class C misdemeanor."

Texas is one of 13 states that allow extension of probation term for nonpayment of fees. (See footnote 176.)

"[S]ome states – including Louisiana, North Carolina, and Texas – disenfranchise people on probation, while also allowing the court to extend probation if a defendant has not paid off his or her debt by the expiration of the probation term. By extending individuals’ probation terms due to unpaid debt, courts also effectively continue to deny the right to vote."

Here's an aspect of Texas law praised by the Brennan Center: "In Texas, one fee statute explicitly takes into account child support commitments, requiring the court to consider “the defendant’s employment status, earning ability, and financial resources” and “any other special circumstances that may affect the defendant’s ability to pay, including child support obligations and including any financial responsibilities owed by the defendant to dependents or restitution payments owed by the defendant to a victim.” This provision should be a model for other Texas fee statutes – and other states should follow its lead."

The report from the Council of State Court Administrators' analysis opened with a quote from the Texas Supreme Court: "If the right to obtain justice freely is to be a meaningful guarantee, it must preclude the legislature from raising general welfare through charges assessed to those who would utilize our courts."

The Texas-specific items in that document were presaged in a more detailed 2009 study from the Texas Office of Court Administration titled, "A Framework to Improve How Fines, Fees, Restitution, and Child Support are Assessed and Collected from People Convicted of Crimes," which framed the issue thusly:
Judges presiding over these cases frequently observe that these court-imposed financial obligations are significant. It is not unusual for someone who is unemployed and is without marketable job skills to be leaving jail or prison owing thousands of dollars in fines and fees and surcharges – and, on top of that amount, owe tens of thousands of dollars more in child support. Without realistic payment arrangements, state and local agencies often end up competing for a share of small payments, and much of the original debt imposed is never paid. In other cases, people are over-whelmed with the financial obligations they owe and they stop making payments altogether.
This situation frustrates the various parties who expect to receive, and depend on, these payments. Courts, correction departments, local probation departments, and other agencies increasingly rely on this revenue to cover their expenses. For example, in 2006 probation fees made up 46 percent of the Travis County (Texas) Community Supervision and Corrections Department’s $18.3 million budget. Families depend on child support payments to help cover the costs of child rearing. Restitution provides victims some reimbursement for their financial losses.

Policies governing the collection of these financial obligations are often at odds, causing considerable confusion among judges and criminal justice agency administrators.
Another notable observation from the 2009 OCA report:
Because no one entity is tracking the financial obligations a person convicted of a crime owes to state and local government agencies and private vendors, judges, clerks, and supervision officers are unable to determine how much that person can reasonably be expected to pay. Policymakers seeking to generate revenue for new or existing initiatives are unable to project how any new fines or fees will affect the collection of the myriad financial obligations a judge can already impose under existing law.

27 comments:

Don Dickson said...

I used to think to myself "hmm, says a lot about my client's character that he'd rather be in jail than on probation." But not any more. It's not just the poor. More and more of my clients are asking me to negotiate jail recs from prosecutors to resolve their cases. And for a lot of misdemeanor offenses, I can't say it doesn't make sense or that I might not feel the same as they do about it. Given a choice between 30 days (which might turn out to be 10 or even fewer), or eighteen months of fees, classes, pee tests, office visits to snarky and cynical POs, and assorted other BS...yeah, I might myself prefer to go to jail.

Kerrville Commentary said...
This comment has been removed by the author.
Anonymous said...

Good time credit + work credit = 3/1 in county jail. No brainer.

Prison Doc said...

Probation is another really dark side of our criminal justice system. I once counseled a man to take 5 years probation instead of 90 days in jail. My motivation was for him to be able to keep his job and maintain his work history. Boy, was I wrong! Probation and its fees and requirements have been far more devastating to his life than 90 days in the clink would begin to be.

This is just another area where the general public has no idea of what is going on in criminal justice. The public thinks that "probation" is synonymous with "getting off Scott-free" Nothing could be farther from the truth. Probation policies and personnel are a real barrier to successful re-entry for people who have been in trouble.

The public is cluless--but I doubt that they care.

Anonymous said...

Apparently you were clueless at the time too...lol

Hook Em Horns said...
This comment has been removed by the author.
Lee said...

Ovious enough.

Hook Em Horns said...

Prison Doc said probation policies and personnel are a real barrier to successful re-entry for people who have been in trouble. The public is cluless--but I doubt that they care.

I concur. I would add that the sex offender registry which, to date, has ensnared 70,000 people in Texas is also a barrier to re-entry.

Red Leatherman said...

A common colloquialism is "A probation officer works to get you in jail but a parole officer works to keep you out".
While "parole" isn't mentioned in the article the language still applies.

Anonymous said...

I agree with Don Dickson. I have a pending case against me and I plan on sitting it out in jail. Probation is a set up for failure and is very time consuming. I'd just rather plan my vacation at the Travis County Bed and Breakfast - lay low and be done with it.

John David Galt said...

I would think the extension of probation can be challenged under the 24th Amendment ("the right to vote ... shall not be denied by reason of failure to pay any poll tax or other tax").

rodsmith said...

well prison doc the problem is we have taken two diff things and made them one. At the beginning you had a Prison Sentence or Probation. there was on parole. That only came in afer prison senteces just got so damn long they had to do something. But on the original probation you were just the same as any other citizen except if during that time you were a probationary city if you violated the law they had an extra hook to hold you while dealing with the new crime. You didnt' have probation officers or report dates or anything else. Was just an extra hook if you messed up. But now those on parole or probation are basically interchangeable Probation has basically become the TRAP where they shove you when they KNOW THEY CAN'T MAKE A CASE in front of a jury. So they offer probation KNOWING there is a major chance you will screw up and at that point they can then hit you with MUCH MORE then you would have gotten if you took it to trial and LOST!

sex offender registry is the same. It has become with all it's little add-on's become LIFETIME PAROLE that being done AFTER the fact is ILLEGAL under our constution

Anonymous said...

Pot/kettle
OCA has led the charge to establish
County collection, or Judicial Enforcement,
departments, becauce the district and county
clerks weren't effective enough.

They send out teams of state employees to
'audit' the county collection collection departments
to make sure they are being effective at collecting.

They teach these County collection departments
how to withdraw funds from inmate trust accounts,
garnish wages, etc.

OCA needs to look in the mirror.

The Homeless Cowboy said...

Incarceration in my opinion has been a profit center for decades, people are simply becoming aware of it and think it is somehow brand new. In the 1970's Texas Prisons were probably the only prison system turning a profit. I remember going to peoples houses and they had canned vegetables with labels that said "Packed by inmates of the Texas Dept. of Corrections" .

Now in 2005 I drove a drunk car and received a misdemeanor DWI, I was sentenced to 40 days, probated for 2 years, I met with my probation officer and was told that I must pay $70 a month probation fee, $70 a month to have my Interlock system on my vehicle monitored, $140 to have the Interlock installed, $50 to MADD and various other fees. Added up it was over $7000 that I would give these people plus report weekly and pay $20 for a U/A each time. I was completely stunned. I told her she could keep the probation. I was arrested 3 months later and spent 20 days in jail, (they give you 2 for 1, who knew?) and was finished with it all I highly reccomend it to all misdemeanor defendants DO NOT GIVE THOSE PEOPLE YOUR MONEY. Maybe they will get the hint and get their money the old fashioned way, by convicting innocent people like usual. Sorry if I sound a bit bitter, I am.

Anonymous said...

The maximum amount a department can charge a defendant for probation fees is $60.00. That is statutory.

The prosecutor can't make his case so he offers probation knowing you will screw up so they can give you more time than you would have gotten in the first place. You can't say that and then say they give you 2 for 1. Not congruent at all.

I was on probation once. It helped save my life. If it wasn't for probation, I probably would have gone to prison or would be dead now.

From a fiscal standpoint, probation departments are dependent on fees from defendants, it makes up 40-60% of their total combined budgets. That is crazy. Adult Probation is the only entity in the TDCJ umbrella whose funding is that messed up!

Probation collects fines and attorneys fees for the Court. But, that isn't revenue for probation, that is revenue for the County. I guess all the lawyers would prefer their clients get prison time or jail time instead of probation. Well, then there wouldn't be those fancy Courtrooms to posture with one another. What then?

If you were to put every probationer in jail of prison instead of community supervision, the State would break. There isn't enough prison space. There never will be.

Other than the fiscal debacle with funding for probation departments, too much behavior is criminalized causing too many probationers. Also, what causes too many probationers is lawyers afraid to go to trial, and judges rubber-stamping weak plea agreements. Many cases should simply not be filed, or someone with enough courage should dismiss, or a Judge should reject the plea agreement if it is a bs case. Not to mention, a DA's Office will bring the same case before the Grand Jury no matter how many times it is no-billed.

Defense attorneys should take cases to trial if the case is weak instead of allowing someone not needing community supervision be placed on probation. The lawyers are the problem, not the probation officers.

Anyone who thinks they are better off in prison than on probation, probably hasn't been to prison, and if they have been to prison, I don't believe for one moment, they liked it there.

Why a prosecutor would offer the choice 30 days jail or 2 years probation is beyond me. If the jail time is going to be miniscule, make the probation time miniscule. Why not 30 days jail or 6 months probation.

When it comes to revocation, offering a defendant little jail time, little prison time, etc. is also weak from the prosecutor and when the judge approves such agreements, it makes the system a sham. It takes integrity away from everyone involved and gives too much power the defendant.

Who really pays is the law abiding citizen. That is who pays for the County Jail and all those salaries of the jail personnel. The citizenry also pays for the prisons through taxation, etc.

Any attorney who talks their client into going to prison is misrepresenting their client. You go to prison Mr. or Ms. Attorney, see how easy and "no-brainerish" you feel like after a few days in prison.

Quit prosecuting cases that are non-winnable. Quit offering sweet deals to defendants instead of probation. Quit letting the defendant have his way with the system. Quit rubber-stamping plea agreements. Provide more funding for probation departments so they are able to make ends meet.

I could go on all day. Ignorance is bliss, but to truly believe probation isn't a viable alternative is ludicrous.

Read the Sunset Commission Report about TDCJ and CJAD. Get a grip.

John McGuire said...

I take great exception to the notion that probation is a "trap". In our department, we take the attitude that the judge placed the person on probation in lieu of jail because he/she felt it was more appropriate. Accordingly, we do our best to get folks to the finish line successfully. Our regular caseload officers supervise approx 125 offenders each-- about double what the American Probation and Parole Association says is the optimal caseload size. And remember -- we don't get to pick and choose our customers.

The monthly supervision fee is $60 per month. That comes out to about $2 per day. Is freedom worth $2 per day? I would say yes, but your mileage may vary.

We provide greatly discounted outpatient drug and anger management counseling, and believe me, if you went to a lab and paid the going rate for a drug test it would be 5-6 times what we charge. Our starting salaries for officers are far less what a teacher or police officer starts at. And because the state has a bad habit of falling short of its appropriated funding, we have to maintain a reserve in order to keep the doors open.

We work closely with the prosecutors to keep technical revocations (revocations for anything but new offenses) down, but if an offender absconds for a lengthy period, we are likely to recommend revocation.

So what must an offender generally do to avoid getting his/her probation revoked? Don't commit new crimes, report to your officer for agreed upon appointments, pay your fees, do your community service, don't use drugs, and attend counseling if required. Does that sound unreasonable? We give "second and third" chances like candy. We try to help folks turn around their lives, but the offender must want to do it as much as us.

I'm not saying there aren't problems with probation, nor am I putting our department on a pedestal as the gold standard-- I know plenty of departments that work the philosophy as we do. But some of the statements about probation made here are way off the mark. I invite you to come by for a visit and a chat, here at Brazos County CSCD.

Anonymous said...

I echo John's comments. After so many years of watching people screw up their lives by looking for the easy way out, sitting out sentences in jail seems to be a continuation of that same bad judgement. Probation is tough. No one has said any different. But we have turned more lives around than any jail or prison in the nation. You have to look past the end of your nose to see the benefits. If you believe getting a good job with a probation sentence on your record is hard, try getting one with a final conviction. And I also extend the offer for you to come by our department in Beaumont if you care to see what we do.

rodsmith said...

well john if that's what your doing GREAT! wish they all did that. Since that is the ideal. The problem like in all areas is the same. 1 bad apple can ruin the whole barrel! Which gets even worse when there is colusion between the judge, DA and probation to turn it into a money sink for the local area. Which seems to be happening more and more as the world and natinal economy TANKS!

Anonymous said...

John - why would I want to go on probation for 2 years and pay all that money on probation fees, classes, testing, community service? Why would I want to be threatened to revoke by a power hungry idiot on every vist? Why would I want to do that when I could just get it over with in 20-30 day? Why?

Thomas R. Griffith said...

Mr. (show me the money) McGuire, you my friend are either full of it or half full of it. At least you had the balls to type a name to go along with your piece. I'll be taking you up on your invite in the near future and look forward to interviewing you and your colleagues.

As a pre-cursor to that day, I'll ask this question. - *An adult probationer is three years into his / her five, having no negative instances, gets arrested (for a nonexistent outstanding traffic warrant) along with the person test driving his vehicle and charged with possession of a controlled substance because he (Buyer) had pills in his belongings. He / she is chosen to participate in a live Show-Up, positively picked out as a gunperson in a robbery where the buyer was also picked out. Subsequently charged with Agg Robbery w/ Deadly Weapon. A hired attorney stops the felony jury trial at lunch recess to plea bargain client away saying, "Guilty or Not, you are going to prison just for being arrested while on probation, take the ten to avoid 99. Is that a friggin lie or not. Is it abuse of the plea bargain loophole? YES or No? Thanks for playing.

A Texas PO said...

Thomas, I'm not exactly sure what your question to John has to do with probation since we have nothing to do with that scenario. A probationer gets arrested and charged with a new felony offense, we have to follow protocol and file a Motion to Revoke Community Supervision. We don't get involved in plea agreements or jury trials. That's a prosecution issue.

Anon 7/4 5:19pm, I'm glad you were able to make a positive change in your life and it sounds like you had a very supportive and helpful PO. I completely understand a lot of the negative comments about probation in Texas and POs in general. I've worked with a few who seemed to have the attitude that all probationers needed to go to prison. But those people are very few and rarely last in this field.

I've heard many people say they should have taken their time in jail, and sometimes I've recommended it, especially for someone on felony probation charged with a new misdemeanor offense. But what many people don't realize is that, with all the new rules and laws governing driver's license suspensions and the like, sometimes your PO is your best asset to making sure you complete everything DPS and the Legislature want you to complete in order to keep your DL from getting suspended and having additional surcharges/suspensions. We do a lot in probation departments in this state. Sure, I've had to threaten some people with prison or jail time, but 99.9% of my time has been spent coaching and encouraging probationers to make good, solid, and positive changes in their lives, obtain lasting and gainful employment, make better family relationships, and leave probation better than they entered it. That's the point, right? Isn't that why we agreed to this?

Yes, the fees can be burdensome, but I've trained many other POs that the fees are NOT set in stone. If a probationer can't afford the $60 max than most CSCDs are charging, then reduce those fees! Over the years, I've saved probationers thousands of dollars but reducing fines and probation fees to more reasonable levels. This can (and should) be done whenever needed.

John McGuire said...

Wow -- let me respond to each of those.

First. Mr. Rod Smith, the criminal justice process can be corrupted if the major players conspire to do so. However, I've worked in four different CSCDs since 1995, and none of them have been a party to such a thing. None of those four CSCDs were considered to be in collusion with judges or prosecutors. We work for the judiciary-- that's not colluding. And the judges I have worked for have never been shy about holding us accountable for doing professional work.

Mr. Anonymous 11:49, I grant you that there are certain folks for whom a conviction is no great stigma, and they will take the jail time. I would also propose that some of these folks have no desire to change their lives and their lifestyles, which may include illegal drug use and alcohol abuse or addiction. For this segment of the offender population, probation is in fact more onerous than a jail term. Now, there may be some "power-hungry idiots" that serve as probation officers; however, our department has several sets of eyeballs look at each recommendation for revocation, with careful scrutiny of the justification. Sometimes we have to file the MTR just to get the person arrested, and then we can recommend an alternative sanction in lieu of revocation. The offenders who consider us "power hungry" are often the ones most stubborn about compliance-- and they leave us little choice.

Mr. Griffith, my offer for a conversational visit still stands. As for your example, I can't comment, except to say that in our jurisdiction, the probation department plays no role in the plea bargain process. And I will also say that last year, we invited our defense bar to our building for a "meet and greet", and to hear their concerns about our department. We hope to do it again this year, and every year after. And -- no complaint by any offender is taken lightly. I do ask for complaints in writing, and when we receive them, they are investigated thoroughly.

Anonymous said...

Wow....never knew probation could stir people up. Wonder how many people heard (and believed) their lawyer when they said "if we go to trial over this, it will cost you a lot more money." "Take the probation and all you have to do is report, pay and stay clean."

People come to our offices all the time after hearing this, believing all they have to do is report and pay. That is what is known as bullhockey. More than likely the lawyer didn't attend the probation class in law school.

What we always ask someone to do is read and comply with the conditions on their court order and they will be fine. While that may be difficult for some, it is required by all. And it is required whether you agree with it or not.

If you are not worried about having a conviction on your record and have no desire to stop the behavior that got you into trouble to begin with, take the jail time and be done with it. The defense lawyers will love you for it, since you will be a recurring client.

Do probation departments have staff who do not need to be probation officers because of power trips? Of course we do. If you have a PO who is requiring you to do things not on your court order, you should report that officer to the Director or a Supervisor with written detail on what you feel is unfair. It will be dealt with. My experience is that most people on probation are not used to having someone tell them what to do and they feel offended when they get confronted, but that is my opinion.

As probation directors, we do not want to see people fail, believe it or not. As departments, we get financially sanctioned when we have a lot of revocations. it is bad for business.

Anonymous said...

Has anybody actually gone to the OCA website and pulled down the schedule of fees that may be collected.

Probation collects only what is applicable to provide supervision and services on a case by case basis. Counties tack on every OCA listed fee regardless of whether or not any given case creates a cost that is supposed to be associated with levying a one of the listed OCA fees.

The irony is that "ability to pay" is supposed to come into play in courtroom. Blame defense attorneys who tell there client to agree to everything even if it costs 10K per month and their client only make $1500 per month.

Anonymous said...

Screw it.... just sit it out in jail and fill it up with a bunch of misd. offenders. They'll wise up soon and see how much that will cost them in the end.

sandra said...

I'm having a hard time . I'm 1600.00 behind on fees and I'm disabled I have no income and no transportation but I do not want to go to jail for 2 years what do I do.....

Mystical.One said...

I have really nothing nice to say about the Texas Judicial system. I sat in court all day today supporting a young man who had gotten in trouble back in 2009. At first I was ok, this judge is reasonable, then it came to this young man, mind you, the others before him had assault charges, aggravated assault with deadly weapon, multiple arrest and convictions, to say the least. But anyway when it was time for this young man to appear on bond after being in jail since September, no hearing before that, the judge slammed him, placed him back on probation for another 2 years, he was due to get off in February. I have another young man, for the same offense they were together when the crime was committed, yes he violated his terms of probation, however, he had turned his life around, and finally was able to find a job, after two years of looking daily, and his prick of a probation officer decides he was going to arrest him for motion to revoke probation. I don't see where the probation officer has helped him. If he was so concerned about his marijuana, "addiction" why wait to revoke his probation after he gets his life together? I really hate to say it, but this deferred adjudication, is Bull crap. According to the things I have researched and read about it, it is not suppose to be set up as they had been convicted of a felon, however, everytime he went for a job that was the only reason they said they could not hire him, at a call center? Then it says that they still can vote while on deferred adjudication, but no that is not true. This kid is a good kid, made a bad choice, so now he must be punished as the judge sees fit, because of past violations to his probation. I really wish I had known the kid back then I would of told him to fight it with a jury trial, these prosecutors are just ugly. I mean ugly, one told me today that in his eyes everyone is bad. I hope and pray that my son not biologically, but in terms of endearment, will be able to get out and today and still have his job. I feel so helpless. I wish I could afford a good attorney for him, but I am disabled and my funds are already allocated. I don't think the system is set up to help these guys. If you he violated his probation then they should have revoked it at that time not wait til he gets his life back on track.