From the Editor - Prison Legal News

Cost Shifting (cont.)
legality of jail fees hinges on how courts
classify the fee – as punishment, a tax, or
a user fee. It also depends upon whether
procedural safeguards are in place to
ensure state officials do not abuse their
fee collection powers or take money from
someone other than a “bad guy.”
Still, the dissenting opinion in the
Washington Supreme Court case upholding
automatic deductions offers a
straightforward critique of the problem
with automatic deductions from prisoner
accounts that could easily apply to all
forms of cost-related assessments:
“I have scratched my head more than
once trying to determine what public good
is promoted by a statute that essentially
authorized the seizure of 35 percent of
every cent that a prison inmate’s spouse
sends to the inmate. While I do not know
this fact for certain, I feel comfortable
believing that many, if not most, of
the spouses of inmates are low income
individuals and that some may even be
beneficiaries of forms of public assistance.
Consequently, the money they send to the
prisons may not be easy for them to acquire.
When the State takes almost half of
this money from the grasp of the inmate,
the needs of the inmate will often have to
be met by another contribution from the
spouse. These spouses, who are mostly
women, must then dig deep again if they
are to offset the State’s cut. In doing so
they undoubtedly deprive themselves of
funds that could be devoted to the purchase
of necessities for them and their
children. Such a scheme strikes me as not
only unwise but unfair. 79 ”
The Cost of Staying Out of Jail
While there are currently no contemporary
studies of probation fee collection
practices, evidence of national trends,
most notably that documented by the
Vera Institute of Justice, 80 suggests the
number of jurisdictions charging probationer
supervision fees has grown since a
1986 NIC survey concluding that nearly
half of states then had probation supervision
fees in place. That survey found 24
states assessed fees for adult supervision
services, typically “rang[ing] from $10 to
$50 per month,” 5 states assessed fees for
adult investigations/pre-sentence reports,
typically “rang[ing] from $75 to $300
per report,” that 5 states assessed fees
for specific programs (e.g. drug/alcohol
April 2008
monitoring or treatment programs); and
3 states assessed fees for juvenile supervision
and investigation). 81 According to
the American Probation and Parole Association,
“[m]ost long-range economic
forecasts point to a continued increased
competition for declining public revenues.
In this economic environment, it
is reasonable to conclude that the trend
towards charging supervision fees will
continue.” 82
Probation administrators have expressed
differing opinions about the
use of probation service fees, with some
being “adamantly oppose[d]” to them,
while others believe supervision fees help
secure programs “central to fulfilling
[their] mission.” 83 The role of probation
departments in recouping fees from
probationers varies from jurisdiction to
jurisdiction. In some, probation agencies
may not be responsible for collection of
fees, in others, they may collect payments
on all economic sanctions -- from victim
restitution, to court costs, to probation
service fees. Payment of the range of
economic sanctions is often a condition
of successful probation.
One study has found that “[p]robation
officers generally believe that collecting
fees takes too much time and infringes
on their ability to do what they consider
to be important duties.” 84 To increase the
likelihood of fee recovery some counties
use collection of fees as a method of
evaluating their probation officers’ overall
performance. 85
The monthly payments sought by
probation are sometimes steep, as are the
consequences for their non-payment. In
Louisiana, for example, individuals on
probation may be required to pay a probation
supervision fee of up to $100 per
month, and a court can condition probation
on payments to various system-related
funds including those for indigent defense,
the criminal court, victim compensation
and privately funded crime stoppers organizations,
as well as reimbursement for
other court and law enforcement costs. 86
If a condition of probation is violated, the
individual is subject to arrest which can
lead to imposition of additional probation
conditions, increased supervision, incarceration,
or revocation. 87 In Ohio, a court
can order probationers to pay up to a $50
monthly supervision fee as a condition of
probation. Failure to pay may warrant
the imposition of additional community
control sanctions, 88 or a modification of
the offender’s sentence. 89 In Arizona, for
8
example, officials will extend a person’s
probationary period until restitution has
been fully paid off. 90 Non-payment or
late payment may lead to the imposition
of collections fees and interest creating a
financial hole for probationers. 91
A Texas study established that “70.8%
of those with unstable employment histories
. . . had negative probation outcomes.
. . .” 92 Paradoxically it also found that
Harris County judges were more likely
to impose miscellaneous fees and fines on
probationers with unstable employment
histories than those with stable histories. 93
Another study shows probationers in rural
counties have a higher chance of being
assessed probation supervision fees than
those in urban counties. 94
Arizona has made its county probation
agencies responsible for collecting
all economic sanctions, and has even
determined the precise order by which
sanctions are to be paid. Payment of
restitution, for example, is given the
highest priority, while payment of the
“prison construction and operations fee”
is number seven on the list. 95 Arizona discourages
court modification of payment
orders, instructing probation officers to
“neither request that the Court adjust the
payment amount or frequency of payment,
nor request that the Court delete
or exonerate any delinquency or order of
Probation Service Fee during the term of
probation.” 96 The American Probation
and Parole Association has noted that
“[o]f all factors affecting collections, the
degree of access to fee payments is the
most significant. Organizations which are
able to keep part or all of the supervision
fees collected, collect more.” 97
In 1997 the Georgia legislature passed
a law placing supervision of misdemeanor
probationers in the hands of private companies.
The supervision fee the company
charged contributed to Sabrina Byrd’s
jailing in 2003. Byrd, the single mother
of three, had never been involved in the
criminal justice system. That changed,
however, when she failed to pay misdemeanor
fines associated with failure to
leash her dogs. Unable to pay the fees,
which totaled $852, she was placed by the
court on probation and devised a payment
plan requiring her to both pay down fines
plus a monthly service fee of $39 charged
by a private probation supervision company.
The Court’s imposition of the $124
monthly payment was too much for Byrd
to pay. She stopped showing up for probation
meetings and was arrested and jailed
Prison Legal News