Private Probation Costs, Compliance, and the Proportionality of Punishment: Evidence from Georgia and Missouri
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Private Probation Costs, Compliance, and the Proportionality of Punishment: Evidence from Georgia and Missouri Be t h M. Hu ebn er a n d Sa r ah K.S. Sha n non Probation is the most commonly imposed correctional sanction, is often accompanied by supplementary costs, and can be operated by the state or private companies. Private probation is a unique sanction used in lower courts, most often for misdemeanor offenses, and is managed by third-party actors. We focus on docu- menting the process and unique costs of private probation, including the rituals of compliance and propor- tionality of punishment. We use data from interviews with individuals on private probation and local crimi- nal justice officials as well as evidence from court ethnographies in Georgia and Missouri. For individuals on private probation, payment of monetary sanctions is a crucial way of demonstrating compliance. Yet the fi- nancial burden of added costs for supervision and monitoring creates substantial challenges. Keywords: monetary sanctions, community corrections, municipal courts, private probation, punishment The scope of probation is wide and deep and increase in the costs assessed by the criminal currently—as of the 2020 census—includes 3.5 legal system overall (Martin et al. 2018; Fer- million people, or one in every seventy-t wo nandes et al. 2019) and for probation supervi- adults in the United States (Kaeble and Alper sion more specifically (Bannon, Nagrecha, and 2020). The number of people on probation has Diller 2010; Ruhland 2019; Brett, Khoshkhoo, increased fourfold in the past four decades, and Nagrecha 2020). Costs assessed to individ- which has led some to term the current era as uals on probation are commonplace and can one of mass probation (Phelps 2020). Concom- include a monthly supervision fee, as well as itant with the growth of probation has been an expenses associated with conditions of supervi- Beth M. Huebner is a professor in the Department of Criminology and Criminal Justice at the University of Missouri–St. Louis, United States. Sarah K.S. Shannon is an associate professor of sociology at the University of Georgia, United States. © 2022 Russell Sage Foundation. Huebner, Beth M., and Sarah K.S. Shannon. 2022. “Private Probation Costs, Compliance, and the Proportionality of Punishment: Evidence from Georgia and Missouri.” RSF: The Russell Sage Foundation Journal of the Social Sciences 8(1): 179–99. DOI: 10.7758/RSF.2022.8.1.08. This research was funded by a grant to the University of Washington from Arnold Ventures (Alexes Harris, PI). Partial support for this research came from a Eunice Kennedy Shriver National Institute of Child Health and Human Development research infrastructure grant, P2C HD042828, to the Center for Studies in Demography & Ecology at the Uni- versity of Washington. We thank the faculty and graduate student collaborators of the Multi-State Study of Monetary Sanctions for their intellectual contributions to the project. Direct correspondence to: Beth M. Hueb- ner, at huebnerb@umsl.edu, UMSL, One University Blvd., St. Louis, MO 63121, United States. Open Access Policy: RSF: The Russell Sage Foundation Journal of the Social Sciences is an open access journal. This article is published under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported Li- cense.
180 state mon eta ry sa nctions a n d the costs of the cr imina l lega l system
sion. Evidence is emerging to suggest that com- monetary sanctions and mass probation by
pliance with these costs can pose challenges documenting the process and related costs of
(Brett, Khoshkhoo, and Nagrecha 2020), and private probation in two states, Georgia and
failure to pay fines and probation costs can lead Missouri. Data for the study come from a series
to additional sanctions including the extension of qualitative interviews conducted with indi-
of supervision and incarceration for noncom- viduals with legal debt and criminal justice
pliance, among other outcomes (Friedman et decision-makers as well as court observations.
al. 2022, this volume; Ruhland 2019). Three prominent themes emerge. First, the
During this time, there has been a growth in costs for private probation are often consider-
the use of private probation, a practice not of- able, layered, and hidden. Second, the rituals
ten captured in studies of probation or official of compliance are opaque and cumbersome,
correctional statistics (Phelps 2020). Private particularly for those without economic means.
probation is unique and separate from state or Third, given the barriers to compliance, indi-
felony probation systems and is used predom- viduals are often sentenced to disproportionate
inantly for individuals convicted of misde- punishment relative to those on felony proba-
meanor, traffic, or ordinance offenses under tion. Taken together, our findings show that the
the purview of local courts. Private probation conditions of private probation are multilay-
is also distinctive in that it is managed by third- ered and insufficiently regulated, resulting in
party, for-profit entities and often accompanied punishments that are disproportionate to the
by conditions of compliance including drug severity of the offense.
testing, electronic monitoring, and specialty
classes (Bellacicco 2013; Albin-Lackey 2014). C o s t s o f P r o b at i o n
Unlike traditional probation, which was de- More than half of people under correctional
signed to provide community supervision in control are serving a term of probation (Marus-
lieu of incarceration and based on a peer sup- chak and Minton 2020). Like the mass growth
port model, many argue that private probation in prison populations over the past four de-
has become instead another way in which crim- cades, probation has grown to be common-
inal legal institutions make money (Harris, place, particularly among young Black men
Smith, and Obara 2019), as the burden to fund (Phelps 2020). Concomitantly, there has been a
the system falls on system users (Rosenthal considerable increase in the use of private pro-
and Weissman 2007; Appleman 2016). Although bation companies in the lower courts, which
state probation systems certainly charge peo- largely govern individuals charged with minor
ple on probation for supervision and addi- offenses such as misdemeanors and ordinance
tional costs of compliance, these entities are violations (Bellacicco 2013; Albin-Lackey 2014).
typically funded more substantially by state tax Nationally, statistics on misdemeanor cases are
revenues. Private probation companies, how- lacking, but estimates show that the system is
ever, promise local jurisdictions that they will enormous, some 13.2 million misdemeanor
pay nothing for these services because all costs cases are filed every year (Stevenson and May-
of supervising misdemeanor probationers will son 2018). Despite the long reach of misde-
be covered by fees charged to those under su- meanor probation generally and private proba-
pervision (Schloss and Alarid 2007). This dy- tion specifically these systems are rarely
namic highlights the distinct profit motive un- studied. As a result, our review of the literature
derlying private probation that is less on probation costs focuses largely on state (fel-
pronounced for state agencies. Moreover, these ony) probation, except where noted.
costs of private probation are often hidden The growth in probation has also been par-
from view and are assessed without traditional alleled with an increase in the frequency of as-
due process protections, making them a part sessment and costs associated with legal finan-
of the ever-growing shadow carceral state cial obligations (LFOs). The use of fines
(Beckett and Murakawa 2012; Friedman et al. associated with probation has grown, though
2022, this volume). the true scope of the phenomenon is unclear.
In this article, we build on existing work on For example, Katherine Beckett and Alexes Har-
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciencesp r o ba t i o n c o s t s , c o mp l i a n c e , a n d t h e p r o p o r t i o n a l i t y 181
ris (2011) find that forty-four states charge pro- “offender-funded system” (Ramachandra 2018).
bation fees for felony supervision. Costs for Some state statutes explicitly mandate that the
probation vary widely, some probation depart- costs of probation should only be paid by the
ments charge a monthly fee for supervision individual—without support from the state,
that can range from $10 to $150, and others as- which is different from felony probation and
sess a one-time fee ranging from $30 to $600 often leads to higher supervision costs for cli-
(Brett, Khoshkhoo, and Nagrecha 2020). ents (Schloss and Alarid 2007). In Missouri, for
Probation sanctions and associated costs example, state law indicates that “neither the
can be a barrier to success for people under su- state of Missouri nor any county of the state
pervision for either a felony or misdemeanor shall be required to pay any part of the cost of
conviction (Diller, Greene, and Jacobs 2009; probation and rehabilitation services provided
Ruhland 2019). The emerging research suggests to misdemeanor offenders.”1 Scholars contend
that many individuals on probation do not have that the costs for private probation are larger
the economic means to pay for monetary sanc- than those of traditional probation, but most
tions and that the costs associated with proba- courts do not track the amount private proba-
tion are stressful, given that nonpayment can tion companies collect in fees or mandate re-
be used as evidence of noncompliance (Ruh- porting by agencies (Teague 2011; Albin-Lackey
land 2019; Ruhland, Holmes, and Petkus 2020). 2014).
The assessment of indigence is also not consis- Second, although supervision costs are com-
tent and waivers do not appear to be granted mon to probation, evidence is emerging to sug-
routinely (Harris et al. 2017; Link, Hyatt, and gest that individuals supervised by private pro-
Ruhland 2020). Unpaid costs can lead to incar- bation companies are more likely to be assessed
ceration or additional sanctions (Colgan 2014; specialty fees for elements of supervision such
Heaton, Mayson, and Stevenson 2017; Ruhland as mandated treatment, electronic monitoring,
2019). Further, time requirements are consider- and drug testing (Albin-Lackey 2014; Latessa
able because individuals must attend regular and Lovins 2019). Individuals supervised by pri-
meetings with correctional staff, judges, and vate probation departments have reported that
clerks (Evans 2014; Doherty 2016). In short, pro- they felt that they were being threatened with
bation costs can exacerbate the harms of com- revocation and additional sanctions for the in-
munity supervision and are magnified for ability to pay and subject to inappropriately ag-
those without financial means (Brett, Khoshk- gressive and hostile collection tactics (Albin-
hoo, and Nagrecha 2020). Lackey 2014; Shannon 2020).2
These dynamics are intensified in misde- Third, individuals on private probation are
meanor courts, where private probation com- not offered the same procedural protections as
panies provide supervision in at least a dozen those under state supervision. Misdemeanor
states (see table 1). Private probation departs cases are typically not covered by Bearden v.
from traditional state-run probation systems Georgia, which prohibits probation revocation
in several ways. First, individuals sentenced to solely for failure to make payment (Williams,
private probation are responsible for all Schiraldi, and Bradner 2019).3 In addition, indi-
probation-related costs, including any courses viduals in municipal courts are rarely afforded
or treatment services required as conditions of the services of a public defender given that
supervision, resulting in what some call an cases that typically do not result in incarcera-
1. Revised Statutes of Missouri (RSMo) § 559.604 (2017). In Georgia and Missouri, some municipalities have
made the decision to manage their own probation services locally, but the lack of state funds for these services
makes the two systems fundamentally different.
2. This focus on collections with the threat of extended sanctions and disciplinary control is not dissimilar to the
nineteenth-century history of working-class industrial life insurance in Britain that involved agents of private
fraternal insurance companies extracting premiums from poor families while ostensibly, though debatably, in-
culcating them with the value of thrift (see O’Malley 1998).
3. Bearden v. Georgia, 461 U.S. 660 (1983).
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciences182 state mon eta ry sa nctions a n d the costs of the cr imina l lega l system
tion, like those on private probation, are not plinary lacuna, but the result is an often mis-
afforded representation (Alarid and Schloss guided and poorly adjudicated series of sen-
2009). Finally, oversight of private probation tences that fail to rehabilitate the individual
companies is far less than of traditional state- effectively. Probation was originally designed
run systems (Albin-Lackey 2014; Harris, Smith, as an alternative to prison and a way to provide
and Obara 2019; Montes and Mears 2019). Even rehabilitative services to people in the commu-
in states with a formal state oversight system nity (Corbett 2015). The net of probation, how-
in place, such as Georgia and Tennessee, evi- ever, has widened bringing people under the
dence suggests that further structure is needed supervision of the carceral state who would
and that the current private probation system have never been subject to incarceration
puts individuals on probation at risk (Wilson (Phelps 2020).
2018). The challenge of proportionality is particu-
larly evident in misdemeanor courts, especially
R i t ua l s o f C o mp li a n c e those that engage private probation systems.
i n M u n i c i pa l C o u r t s Scholars have argued that private probation,
Emerging evidence suggests unique procedural when imposed on individuals with misde-
costs of punishment in municipal courts (Na- meanor convictions, is used for the wrong group
tapoff 2018; Mayson and Stevenson 2020). Re- of people and implemented in such a way that
searchers have documented an arduous pro- predictably leads to failure (Bellacicco 2013;
cess of punishment in misdemeanor courts Klingele 2013). In addition to the disproportion-
because people must undertake a significant ate costs of private probation, individuals un-
burden to comply with formal legal proceed- der this type of correctional control are not
ings, which often includes a performance to of- offered the same safeguards and services, in-
fer evidence that they take responsibility, or cluding housing or employment services,
display accountability for the offense (Kohler- something that is commonplace with tradi-
Hausmann 2013, 2018; Martin, Spencer-Suarez, tional felony probation (Bellacicco 2013). The
and Kirk 2022, this volume). The private proba- use of private probation is disproportionately
tion process is particularly opaque and the rit- harmful to individuals with fewer economic
uals of compliance are more involved (Teague means in that private probation agencies often
2011), yet oversight of the system is scant given criminalize such individuals’ inabilities to pay
what many perceive as the low-stakes nature of the fees associated with their probation terms
municipal courts (Huebner and Giuffre 2022, (Ramachandra 2018). The profit-driven nature
this volume; Mayson and Stevenson 2020). In- of this system, in which the survival of private
dividuals also face many barriers to adherence companies depends on the ability to raise rev-
to court mandates, such as transportation, enue, means that individuals are less likely to
which further complicate the process (Cadigan be given a reprieve when they cannot pay
and Kirk 2020). (Teague 2011). Moreover, the practices of private
probation companies are subject to very little
Proportionality of Private Punishment scrutiny or oversight in most states, allowing
One key goal of an equitable and appropriate profit motive to muddle access to reprieve when
criminal justice system should be to allocate individuals cannot pay (Ramachandra 2018).
sentences and judgments that are proportional One illustration of the disproportionate na-
to the gravity of the offense. Legal scholars Nor- ture of private probation is pay-only supervision,
val Morris and Michael Tonry (1990) argue that wherein individuals unable to pay their fines
a void separates probation and prison sen- and court costs immediately are placed on
tences in the United States in which individuals court-ordered probation solely for monitoring
on the fringe of these two sentences are not and collecting court debt. The longer it takes
appropriately considered (see also Petersilia individuals to pay off their debts, the more in-
2003). They contend that probation in general dividuals must pay in supervision fees and the
is an attempt to use community supervision to more time served on supervision, which in
account for individuals who occupy this disci- some cases can amount to more monetary
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciencesp r o ba t i o n c o s t s , c o mp l i a n c e , a n d t h e p r o p o r t i o n a l i t y 183
sanctions than originally ordered, inflicting some states, including Georgia, have imple-
great financial hardship (Albin-Lackey 2014). In mented oversight bodies. For example, Tennes-
this way, the payment process puts defendants’ see has developed a Private Probation Service
freedom on “layaway” until they have the finan- Council, the stated goal of which is ensuring
cial means to comply fully (Pattillo and Kirk that uniform professional and contract stan-
2021, 2). Private probation also has a burden- dards are practiced and maintained by private
some performative element in that individuals corporations, which are regularly audited.
are required to make multiple trips to the court- Most private probation agencies are allowed
room to comply, whereas those with more eco- to charge, at minimum, $30 per month, al-
nomic means can remedy debt in one trip (Bel- though two states, Tennessee and Alabama, al-
lacicco 2013). low for means-tested financial assessments.
Overall, the goal of this work is to build on The term of supervision traditionally lasts for
emerging scholarship on mass probation to two years, although variation is substantial.
document the role of private probation in lower Legislation rarely addresses the costs of ser-
courts, particularly around the economic and vices and treatment required by the court, and
procedural costs of compliance. Our research except for Michigan, little, if any state funding
question asks whether and how the dynamics is allocated to private probation services. Again,
of probation costs and rituals of compliance Missouri has designated in state statute that all
impact the proportionality of private probation costs of private probation should be covered by
sentences? We draw on evidence from inter- the defendant.”4 The following discussion de-
views with 130 individuals sentenced to proba- scribes how these elements manifest in the
tion, ninety court decision-makers, and more study communities.
than four hundred hours of court observations
across two states. Missouri
Individuals placed on probation for a felony are
S t u dy S i t e s supervised by the Missouri Department of Cor-
Data for this study come from two states, Geor- rections; individuals with misdemeanor or or-
gia and Missouri. Unlike other states in the dinance violations are disallowed by statute to
Multi-State Study of Monetary Sanctions, both be supervised by the state probation and parole
Georgia and Missouri operate private probation officers. In 1992, as a cost-saving measure, the
systems in the lower courts. Even so, the legal state of Missouri passed legislation allowing for
and procedural nature of these systems varies private entities to provide probation services in
between these two states, which allows for a municipal courts.5 Some municipal courts in
more nuanced understanding of the use of pri- the state have elected to partner with private
vate probation in practice. Although the true probation agencies; others use local municipal
scope of private probation is unknown, table 1 or county staff. No systematic accounting of the
provides insight into the nature of private pro- number of private probation organizations is
bation in the United States based on our survey undertaken.
of publicly available documentation of private Private organizations that wish to provide
probation systems. At the time of this analysis, probation services must make an application
only twelve states had documented private pro- with circuit courts, but the law provides no
bation systems. In our review, we find that most guidelines for the approval of an agency, leav-
of the systems are managed at the county or ing each court to develop its own. Contracts can
local level under little state or systematic over- be in place for three years, and there are no
sight. Many private agencies simply enter into statutory requirements for the qualifications of
private contracts with the court and have no program staff. The only caveat is that the
formal reporting requirements. In contrast, agency and a judge or elected official may not
4. For more information, see Intervention, “Criminal Justice Services,” 2021, https://www.int-cjs.org (accessed
August 10, 2021),
5. RSMo § 559.600.
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciencesTable 1. States with Authorized Private Probation Services
Legislation on
State Maximum Fee Cap Oversight Body Private Probation Maximum Supervision Length
Alabama $40 per month (25 percent of Contract with county and courts. None 2 years
gross monthly income cap).
Arkansas $35 per month No identified regulatory agency § 16-93-306 (8.C.2) 2 years
Colorado $50 per month Colorado Division of Probation Services CO Rev Stat § 18-1.3-202 1 year
(2016)
Florida No less than $40 per month Contract with courts. Private entities must 948.15(2) 1 year, if alcohol-related, 6
be registered with the board of county months for other charges
commissioners and file quarterly reports
(948.15(4))
Georgia None Individual contracts with county or HB 310 One year per charge
municipality governing body at the SB 367
request of a judge; oversight by the §OCGA 42-8-6
Georgia Department of Community
Supervision.
Idaho $75 per month Contract with county and local courts 31-3201D(2) 2 years per charge
Kentucky $52 per month ($50 + 4 Contract with district courts. Guidelines are KRS 533.010(12) 2 years or until restitution
percent surcharge fee) provided in the Private Probation Agencies is paid
Requirements and Agreements form.
Michigan $135 per month Michigan Department of Corrections; Act 232 of 1953 allows for 2 years
county probation offices. “Field MDOC to “allow for the
Operations Administration (FOA)” is the operation of certain
branch of MDOC responsible for parole facilities by private
and probation supervision. Courts retain entities”
legal control over the defendant’s statusMississippi $55 per month Contracts with lower courts. No oversight None 2 years
board
Missouri $60 per month Contracts with lower courts. No oversight House Bill 80 559,600 2 years
board. 2019
Montana No less than $50 per month Contract with courts - must follow 46-23-1005(2) Montana 24 months for high-risk
guidelines required in 46-23-1011 of the Code Annotated 2019 offenses
Montana Code Annotated 2019 (46-23-
1001–46-23-1041)
Tennessee $30 per month (10 percent Private probation agencies are supervised § 16-3-901 2012 2 years
of net income). by the Private Probation Service Council
Tennessee code
established the creation
of the Private Probation
Services Council §§ 16-
3-901–16-3-911
Utah $30 per month Division of Administrative Rules R156-50. 1 year for most offenses, 3
Private Probation Provider years for a Class A
Licensing Act Rule misdemeanor
Source: Authors’ tabulation.186 state mon eta ry sa nctions a n d the costs of the cr imina l lega l system
have any relationship or mutual financial inter- owed at the time of sentencing.10 The only ser-
est. State statutes have changed very little since vice provided by probation officers, in this case,
the original legislation was passed, and Mis- is the collection of payments toward the debt.
souri does not require verification of fees col- The statute specifies that supervision fees for
lected. pay-only probation must not exceed three
months of ordinary probation supervision fees
Georgia and that collection of any probation supervi-
Georgia law requires that all felony-level proba- sion fee terminate as soon as all court-imposed
tioners be supervised by the state Department fines and surcharges are paid in full. A proba-
of Community Supervision but explicitly disal- tion officer must file a motion within thirty
lows the state from supervising misdemeanor days to terminate a defendant’s probation sen-
probationers, who must be supervised by local tence early once all money owed is paid.11
or private entities instead.6 Since 1991, Georgia
law has allowed judges of county and munici- Methods
pal courts to contract with private corporations Data for this study were obtained from in-depth
to provide probation supervision and collect interviews with individuals with legal debt and
money for misdemeanor probationers with un- criminal justice decision-makers as well as
paid monetary sanctions.7 Currently, twenty- court observations in Georgia and Missouri as
four private probation companies provide ser- part of a larger study of monetary sanctions
vices in Georgia counties and cities. 8 (Harris, Pattillo, and Sykes 2022, this volume).
Information is not publicly available on super- In total, 130 individuals with legal debt were
vision fees and other costs assessed by these interviewed; seventy in Missouri and sixty in
companies; however, media reports from Geor- Georgia. Interviews were conducted with forty
gia cite monthly supervision fees between $25 criminal justice stakeholders in Missouri and
and $45 in addition to start-up fees ($15) and fifty in Georgia and include defense attorneys
daily fees of $7 to $12 for electronic monitoring (nine in Missouri, ten in Georgia), prosecutors
(Rappleye and Riodian-Seville 2012). According (four in Missouri, six in Georgia), judges (thir-
to the Council of State Government Justice Cen- teen in Missouri, sixteen in Georgia), and court
ter (2016), private probation companies in Geor- clerks (eight in Missouri, seven in Georgia). We
gia collected $121 million in fines, fees, restitu- also interviewed probation and parole officers
tion, and other payments. In 2015, in response (twelve in Missouri, eleven in Georgia); two of
to the growing number of legal cases filed the interviews in Georgia and one in Missouri
against private probation companies in the were with individuals who supervised private
state, the Georgia legislature created the Board probation clients. More than two hundred
of Community Supervision to provide oversight hours of court observations were conducted at
to misdemeanor probation in the state.9 both research sites. Individuals with current le-
Georgia courts can sentence people con- gal debt were eligible for the study, and par-
victed of misdemeanors to pay-only probation ticipants were recruited using several method-
solely for the inability to pay the fines and fees ologies. The research teams developed flyers
6. Official Code of Georgia Annotated (O.C.G.A.) § 17-10-3 (2010). Exceptions are made if a person is under
felony supervision but also has misdemeanor convictions
7. O.C.G.A. § 42-8-100.
8. See Georgia Department of Community Supervision, “Misdemeanor Probation Oversight,” 2021, https://
sites.google.com/a/dcs.ga.gov/department-of-community-supervision2/provider-information-list (accessed
August 10, 2021).
9. State of Georgia, House Bill (HB) 310 (2015).
10. O.C.G.A. § 42-8-103.
11. O.C.G.A. § 42-8-103(b).
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciencesp r o ba t i o n c o s t s , c o mp l i a n c e , a n d t h e p r o p o r t i o n a l i t y 187
that were distributed to state probation offices 2006). We assigned pseudonyms for all partici-
and local service providers, and notices that pants.
were placed on Craigslist and Facebook. Inter-
views lasted approximately one hour and were C o s t o f P r i vat e P r o b at i o n
conducted at local service agencies, probation Probation agencies assess two classifications
and parole offices, libraries, and other local es- of costs: supervision fees and compliance
tablishments. Criminal justice decision-makers costs. For felony probation, many of these costs
were recruited through personal contacts and are set by statute or statewide policy. For ex-
snowball sampling (Biernacki and Waldorf ample, in Georgia, the monthly supervision fee
1981). is $32.12 In contrast, monthly costs for private
Individuals with legal debt and criminal jus- probation at the misdemeanor level, vary
tice stakeholders were interviewed using a widely, are set locally by courts and providers
semi-structured interview protocol (Harris, Pat- and do not cover the costs of treatment and re-
tillo, and Sykes 2022, this volume). We did not lated programming. Compliance costs include
query participants with legal debt or stakehold- fees for programming, such as substance abuse
ers specifically on the use of private probation, treatment and rehabilitative classes and drug
although we did ask about a range of sanction- testing, which are assessed by the judge as a
ing more broadly, including traditional felony condition of supervision. In both states, varia-
probation. The themes described here were tion was substantial in the frequency and the
identified organically as part of our probing on nature of programming ordered and the requi-
the costs of contact with the criminal justice site costs assessed by the misdemeanor courts.
system. Compliance costs were the most noted by
participants. Municipal courts contract with
A n a lys i s third-party agencies to provide court-ordered
We analyzed all of the data using a modified treatment classes and other mandated services,
grounded theory approach, relying on both de- and the costs can be substantial. In the lower
ductive and inductive coding strategies (Lo- courts in both states, we observed individuals
fland et al. 2005). We began by identifying key being sentenced for misdemeanor offenses to
themes for consideration including community a host of programs and treatment modalities
supervision, court-ordered programming, dis- including anger management classes, GPS
cretion, and consequences of nonpayment. We monitoring, drug treatment, safe driving
also did a keyword search for private probation. classes, community service, among others. For
Following the initial round of coding, we con- instance, one participant in Missouri reported
structed memos to identify themes and pat- paying $800 for anger management classes for
terns (Charmaz 2006). Through this coding pro- a misdemeanor assault conviction. In Missouri,
cess, three primary themes emerged: the most classes, like participation in a victim im-
hidden costs of private probation, proportion- pact panel, would cost $50 per session and have
ality, and the rituals of compliance. We also no agreed-upon duration. Other costs, such as
used narrative and observational data to docu- a urinalysis, vary widely; in one Missouri mu-
ment the high cost and cumulative nature of nicipality each screening was $20 and some
probation, overall, that provides context to the participants were mandated to provide a sam-
two main themes. During further rounds of ple biweekly. In Georgia, such costs also vary
coding, we identified additional themes that substantially. In one misdemeanor court, ten
centered on the performative nature of compli- days on electronic monitoring cost the defen-
ance and the collateral consequences of private dant $10.50 per day. Driving school for traffic
probation. We achieved interrater agreement convictions typically costs defendants $40 or
through the consensus-building approach and $50 for a six-hour course, depending on the ju-
documented counterfactuals to dominant risdiction. Anger management courses run $35
themes (Miles and Huberman 1993; Charmaz per session and total $700 for a ten-week, twice
12. O.C.G.A. § 17-15-13; O.C.G.A. § 42-8-34.
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciences188 state mon eta ry sa nctions a n d the costs of the cr imina l lega l system
per week course, as required in one of the Geor- Missouri included numerous mandated fees
gia municipal courts we observed. and was a challenge to balance everyday costs
Individuals are often sentenced to multiple and compliance: “I mean like, the supervision
sanctions, all with different costs and require- fees and stuff are what, because that’s $30 a
ments for compliance. During our observations month and I have it for five years, so that’s
of a Missouri municipal court, we documented $1,800 alone. So it’s just, for being someone like
the case of a forty-year-old female. She indi- me that can’t get a job, it’s really hard, especially
cated to the judge that she was on disability, having three kids, being a single mom.”
but a waiver of fees was not offered. The com- Cade echoed Caroline’s challenges in paying
plicated nature of punishment is detailed in costs given childcare responsibilities. Cade
this court observation. knew that he wouldn’t be discharged from pri-
vate probation until he paid the full amount of
The defendant pled guilty to trespassing and his fine, but he often had to choose between
stealing, had priors, and asked the judge making financial payments and providing for
whether she could get on a payment plan be- family: “Yeah, he [the judge] was just, ‘Why you
cause she was on disability. For the trespass- ain’t paid?’ ‘Man, I got four kids. I’m paying
ing case, the defendant was sentenced to pay bills and it’s hard. It’s rough.’ He like, ‘Well, try
a $250.50 fine. For the stealing case, the de- to get it something paid. Blah, blah, blah, if you
fendant was sentenced to two years’ unsuper- want to get off probation. That the key to get-
vised probation. The defendant, as a condi- ting off is paying your fine.’ Life is a struggle.”
tion of probation, was ordered to pay a $350 Even small fees were hard to pay given that
fine plus court cost, complete forty hours of participants were often juggling multiple finan-
community service (which could be set up cial responsibilities, common themes that
by the court, through the city or a nonprofit emerge in other studies of individuals under
organization), and return to court in Novem- correctional control (Pleggenkuhle 2018; Link
ber, not violate probation, notify court of 2019; Shannon 2020).
change of address, not to go to Walmart, at-
tend shoplifting class, and pay $50 a month Hidden Costs
for supervision costs. Individuals on supervision and decision-
makers we interviewed argued that because pri-
The exchange was one example of the lay- vate probation companies were profit focused,
ered nature of sentencing in municipal court. conditions of compliance were ordered to help
The participant will be responsible for $1,200 cover the costs of operations or increase profits,
in supervision fees over the term of the sen- or both. The costs for private programming,
tence, costs associated with shoplifting classes, particularly treatment classes and services,
and fines and court costs, which altogether will were often not described to participants at the
likely total more than $2,000 and be paid on a time of sentencing. For example, many courts
disability stipend. Compliance also required a had a list of go-to programs, which potentially
substantial time commitment, which included limits competition in this space and may in-
attendance at classes and forty hours of com- crease the potential for conflicts of interest.
munity service, and the failure to consider the Drug treatment was the most common sen-
physical needs of the participant is a common tenced sanction associated with private proba-
theme echoed in work of this type (Cadigan and tion. A local attorney in Missouri discussed the
Smith 2021). frequent use of private probation for “virtually
Participants also expressed challenges com- any” municipal drug case, which often involves
plying with supervision costs. Even small fees the possession of a small amount of marijuana.
were hard to pay when individuals were juggling He explained, “if you get locked up on a drug
multiple financial responsibilities. Compliance charge, more than likely than not you’re going
with these rituals compound on themselves and to have at very minimum a requirement that
conflicts with other obligations. Caroline de- you sign up for the random drug screening pro-
scribed how her experience on probation in gram with private correctional services.” Indi-
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciencesp r o ba t i o n c o s t s , c o mp l i a n c e , a n d t h e p r o p o r t i o n a l i t y 189
viduals are randomly screened and can be ment via incarceration if violated. A state pro-
called six days a week and asked to provide a bation officer in Missouri believed that the pri-
sample within a three-hour window. If they are vate probation companies used this assessment
not able to provide a sample or the test is posi- process to add conditions for supervision that
tive, the infraction is reported to the judge and came with costs. As noted, private probation
a violation hearing is scheduled. Further, in companies in Missouri are limited to charging
both states, we observed that many partici- $50 per month for supervision fees; they can,
pants were ordered to complete regular drug however, assess additional costs for drug test-
testing, even if the crime was not drug related ing and other supervision elements that in-
or the individual did not indicate that sub- crease the cost of supervision to the individual
stance use motivated the crime. and potential profits for the company. A local
In both states, the process of determining state probation officer described the process:
substance abuse treatment is outsourced to a “There is a limit, but how they get around it
private treatment provider who has the ulti- . . . let’s say for example a guy is on probation
mate authority to mandate the length and na- for petty larceny. What private probations do,
ture of the treatment and requisite costs. This they say okay you’re on private probation now,
assessment process was unclear to litigants, we’re administering . . . you have to do drug
and most agreed to participate without the as- screen, and you have to do drug screen through
sistance of legal counsel. A municipal court us. And they add on all these additional ser-
judge from a midsize community in Missouri vices that the client is responsible for. And if
described the process he uses to order individ- the client doesn’t partake in that stuff then
uals to treatment: “If they see somebody they they’re in violation of their probation. And
think has an issue that needs to be addressed, the next thing you know, they’re going back to
then we’ll send them to get an assessment. court.”
There’s three or four providers around here As the participant explained, the costs of pri-
close. Get an assessment and sometimes it says vate probation are many and involve several
come back and just do some extra counseling. requisites for compliance. This theme is echoed
Sometimes it says, kind of like, you need to by individuals under private control. Charles,
maybe have a weekend intervention or some of a participant from Georgia, expressed cynicism
that. Occasionally it’ll come back that this per- with the process and felt that the sanctions
son’s got issues and needs long-term treat- were economically focused: “They try to make
ment, so they try to find a treatment program you go through a whole bunch of stuff that you
that can do that.” don’t need to be going through, like anger man-
This judge perceived it as his duty to address agement, other classes . . . All that extra stuff
the needs of individuals who came before him, that you don’t need to do all that. It was break-
even those apart from the nature of the crimi- ing a lamp. Why do I have to do all the extra
nal conviction. In practice, however, regardless stuff? They just trying to make money off you.
of potential benefit from treatment, the pro- That’s all they try to do.”
grams were quite coercive and come with finan- One Missouri defense attorney explained
cial and time costs (Phelps and Ruhland 2021). how this works relative to felony probation,
The forceful nature of such “care” is even which is run entirely by the state:
more pronounced when individuals are super-
vised by private agencies that may be more in- The private company, because they get paid
clined to enforce compliance for the sake of for every violation report, they are com-
economic gain. Private probation also creates pletely out to get my clients. They will violate
perverse incentives for increasing total punish- them for any little slip they find, they’ll file
ment through its payment structures. In Mis- a violation report. The felony violation is
souri, for example, private probation compa- probation and parole. So, they actually lose
nies are paid for violation reports, which leads their funding if they violate a person, that
to increased scrutiny of probationers’ behavior person goes to the penitentiary. Then, the
and a greater likelihood of additional punish- state funding that was going to probation
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciences190 state mon eta ry sa nctions a n d the costs of the cr imina l lega l system
and parole goes to the Department of Cor- ance with reporting) relates to ensuring mon-
rections. They lose money if they violate etary sanctions are paid: “I don’t think it’s that
someone. It’s in their best interest to work their behavior needs to be monitored. It’s just
with them and not violate them when some- so that they’re keeping in touch and they’re let-
thing small, when there are small transgres- ting us know what’s going on with getting the
sions. That’s one of the things that was very fines paid. . . . Usually it’s gonna be, ‘All right,
interesting to me was that felony probation have you sent your payment? When are you
is just a better probation to be on than mis- gonna do that? What amount can you send? Are
demeanor (probation). you having trouble with this, what do we need
to do?’ Just to make sure that the case gets
The attorney contended that the private pro- taken care of and closed out.”
bation company was incentivized to violate cli- However, judges often set so many param-
ents, different from state probation. Given the eters of the probation sentence, which can po-
potential personal and financial costs of a vio- tentially increase the challenges for the defen-
lation report, individuals being sanctioned for dant. Evidence from court observations in
misdemeanors or ordinance violations poten- Georgia highlighted this theme.
tially face an increased likelihood of failure All of the defendants were sentenced to com-
simply because of the nature of the supervision plete module 2 (the teen driving course), “a
regime. The findings comport with others of driving improvement program.” The judge
this type that warn against the use of private noted that the program should only take three
correctional systems that introduce financial weekends, though he gave all defendants four
incentives that may undermine the primary months to complete the program. He then gave
goals of correctional and increase the potential possible excuses for not completing the pro-
negative outcomes for individuals under super- gram (“my dog died,” “I had a demanding pro-
vision (Harris, Smith, and Obara 2019; Montes fessor,” “I had fall training,” “I had spring re-
and Morgan 2020). hearsals”). He went on to say that none of those
Overall, the costs of private probation are excuses are valid given the amount of time he
substantial. The complete cost of probation su- is allowing to complete the program.
pervision is seldom announced in court, thus The judge in this case minimized the time
the full financial burden for low-level offenses it would take to complete the course, which was
often comes as a surprise to defendants, who the equivalent of six working days, for a mu-
are afforded little due process and provided nicipal traffic infraction. In another observed
even less clarity in this opaque system of mul- court interaction in Missouri, the judge re-
tilayered costs. quired thirty hours of community service
within sixty days, as a condition of private pro-
R i t ua l s o f C o mp li a n c e bation, for a probation violation. The individual
Participants on private probation also found it had yet to meet those requirements and the
difficult to comply with sanctions that were of- judge repeated the requirement and threatened
ten multilayered, time-delimited, and required jail time for noncompliance. In Georgia, we ob-
frequent trips to court. A clerk in a rural Mis- served two judges in different jurisdictions who
souri municipal court described the procedural indicated that the defendant should buy a
hassles that come with private probation: toothbrush to use in jail if they did not comply.
“They can put you on supervised private proba- The judge addressed one defendant, a young
tion. They can make you take drug tests every Black woman, saying that he had the ability to
week, they can make you do 250 hours of com- fine her up to $1,000 and twelve months in jail.
munity service, they can make you wear, maybe, He then said, “if you come back having not
electronic equipment. In other words, proba- completed the program, you don’t have to
tion can make you do things and restrict move- worry about the fine, but you do need to bring
ment and activity.” a toothbrush.”
A private probation officer in Georgia de- Dale described a similar experience that he
scribed how much of this performance (compli- characterized as “harassment” as part of his
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciencesp r o ba t i o n c o s t s , c o mp l i a n c e , a n d t h e p r o p o r t i o n a l i t y 191
regular check-in with the judge: “If you ain’t demeanor offenses in the same jurisdiction,
complying with everything they say you had to they are frequently supervised by the state. But
do for the paying a lot of money or doing all if convictions occur in different jurisdictions,
your community service hours, by they stan- such coordination is less likely. Chris described
dards, like in a certain time, they make it, like, how having to report to multiple supervising
they be harassing you. Threatening you going agencies, both public and private, creates an
to jail and doing, they taking you to court. untenable situation:
That’s fine. Take me to court. Ain’t nothing go-
ing to change. You take me to court today, I’m At one time I had state probation, misde-
still in the same situation. So you feel?” meanor probation running at the same time.
Dale was mandated to attend multiple court They wanted me to make payments here and
dates, which he found extremely stressful be- they wanted me to make payments there, and
cause he was having trouble paying the requi- I explained it to them, “I barely have enough
site supervision fees and completing the com- money to pay you but they want me to pay
munity service hours. He felt that he could not them too. They want me to report here and
possibly comply with community service and they also want me to report over there. Both
keep his job, and the time costs of attending of y’all want me to be working.” It’s impos-
court further diminished his available time. As sible to actually please everybody. Even if I
his observations suggest, the numerous, some- was just reporting to one, again it’s impos-
times competing conditions of supervision cre- sible to please your employer and the proba-
ate a “piling on” effect by which probation and tion office at the same time. It’s a big strain.
LFO sentences become onerous (Bing, Pettit,
and Slavinski 2022, this volume; Uggen and They point out that some people who have
Stewart 2015). Although he felt that the judge an understanding employer can find ways to
was trying to use jail time to encourage pay- manage the difficult balancing act. Chris cap-
ment, he felt that without a fundamental tured the feeling of being torn between myriad
change to his current life situation that he could competing expectations not only from multiple
not meet the time-delimited request (Martin, supervising agencies but also from employers
Spencer-Suarez, and Kirk 2022, this issue). as “like a constant burning torturous feeling.”
This participant expressed a willingness to Maintaining employment is often a condition
accept some punishment for their wrongdoing of probation and necessary for having the abil-
but felt that being under subsequent supervi- ity to pay off LFO debt. Yet, as participants ex-
sion and paying LFOs was “ridiculous.” We have plain, these conflicting pressures create a situ-
many such examples from participants who ation in which fulfilling these sentences is out
said that one form of punishment is fair (such of reach because “it is impossible to actually
as fines only), but once they receive more than please everybody.”
one punishment, such as a fine plus commu- The process of compliance includes perfor-
nity service or jail, their punishment is out of mative requirements which can also be taxing
proportion to what they had done. Many, like a to defendants (Kohler-Hausmann 2013). Judges
participant from Georgia, felt that it should be weighed heavily compliance with LFOs as a key
“one or the other.” “I don’t like the fact that it’s consideration in deciding outcomes on proba-
community service and the fine. I think they tion. Paying LFOs is a significant indicator of
should make it one or the other.” overall compliance with probation, but “just
This “piling on” effect can become even paying something” can be sufficient (see also
more cumbersome when an individual is under Pattillo and Kirk 2021). An individual on proba-
supervision by more than one probation tion in Georgia described their experience.
agency. In Georgia, this is possible because fel- “They want you to pay something no matter
ony probation supervision is state run but mis- what. They don’t care if it’s $10 to $100 but as
demeanor probation is locally administered, long as you put something toward your fine or
often by private probation companies. If an in- restitution it shows that you’re trying.” A simi-
dividual is sentenced to both felony and mis- lar event was observed in court in Missouri,
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciences192 state mon eta ry sa nctions a n d the costs of the cr imina l lega l system
where attorneys frequently use adherence to D i s pr o p o r t i o n a li t y o f
probation guidelines as a signal for compli- P r i vat e P r o b at i o n
ance. In court observations, a defense attorney Our data reveal that the principle of propor-
asked that their client be released from private tionality in punishment is compromised by the
probation given his compliance with electronic combination of probation and LFO sentences
monitoring: “[My client] says from May to July along three dimensions, especially when pri-
2009 is when all of these priors took place. He vate probation supervision is involved: in-
cannot explain why the defendant did these creased sentence length for nonpayment, col-
during this time, must have ‘gone crazy,’ but lateral consequences, and exploitation. In
he pled guilty and went to prison for those. He misdemeanor courts, the intersection of pri-
has been on (electronic) monitoring for two vate probation and LFO sentences compro-
months now with no violations and has a job mises proportionality when it leads to longer
working 8 hours a day. He has shown the Court sentences overall, particularly for petty offenses
he should be dismissed from probation as he such as traffic violations or possession of a
“can follow rules and be a productive member small amount of marijuana, for example. In
of society.” both states, individuals who have money and
Adherence to other conditions that also in- can readily pay LFOs spend less time on super-
cur financial costs, such as electronic monitor- vision (if any) than those who cannot pay im-
ing, is even more important for demonstrating mediately. As a result, several mechanisms en-
compliance. At the same time, noncompliance able sentence length to be extended in order to
with the same conditions due to high costs or ensure payment of LFOs.
other factors was rarely considered. Thus, al- In Missouri, judges can use the length of
though the official reason for noncompliance probation to encourage full payment of mon-
is that they did not successfully complete their etary sanctions. As one probation officer put it,
class or treatment, the real reason is that they “There are some judges who are very conscious
could not afford to pay the fees. An attorney in of those costs. I’ve even had a judge tell me be-
Georgia highlighted this phenomenon: “Yeah, fore that they’re not going to let anybody off
because they were ordered to complete that, probation with owed fees, and that includes in-
and if it comes in that those classes come with tervention fees or court costs.” Cassie, a par-
fees and charges and they can’t pay that and ticipant from Missouri, describes how the
they get kicked out of class, well they’re violat- threat of extended probation led to borrowing
ing probation at that point.” money from her mother to pay off her LFOs:
Overall, we observed a bifurcated system. “The $2,000 I had to borrow money from my
Defendants without means are expected to dis- mom because it was pressing for me to be able
play contrition and accountability for their to get released early and not extend my proba-
crimes through regular court appearances tion. I borrowed the money from her and then
(Martin, Spencer-Suarez, and Kirk 2022, this whenever I got my taxes this year I paid it back.”
volume); we consistently observed that these Georgia statute prohibits “tolling” or ex-
procedural performances of compliance were tending probation sentences for nonpayment
in fact routinely waived or avoided by people of fines and fees. Nonetheless, we routinely ob-
with economic means or legal representation. served judges sentencing people with multiple
In fact, we observed people who were willing to misdemeanor charges to consecutive rather
pay more money for fines if it meant they could than concurrent terms of probation in order to
avoid the procedural hassle of coming to court give them more time to pay. This workaround
again. Such interactions were not universal, was often posed by court decision-makers as a
however. Practices vary, but we did observe form of mercy, as one Georgia judge explained:
judges reducing economic sanctions in re- “The judge indicates that she wants to make all
sponse to defendants’ compliance with other three probation sentences consecutive rather
terms of private probation. In neither state, was than concurrent (for a total of thirty-six
it clear when and how judges make the decision months) in order to ‘spread this money out’ be-
to reduce final obligations. cause of the defendant’s pregnancy.”
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciencesp r o ba t i o n c o s t s , c o mp l i a n c e , a n d t h e p r o p o r t i o n a l i t y 193
In both states, people convicted of misde- als in these courts did face the procedural has-
meanors can be placed on pay-only probation. sle of regularly returning to court, the addi-
This type of sentence is a way of de facto ex- tional third-party costs associated with private
tending time on probation supervision because probation were not assessed.
such individuals would otherwise not be placed Probation sentences can also increase an in-
on probation at all if they had the means to pay. dividual’s total punishment exposure by exac-
In Georgia, individuals can be sentenced to up erbating collateral consequences, including dif-
to twelve months on pay-only probation for ficulty securing employment or housing. Credit
each offense and stay on until they pay their problems are another byproduct of the pres-
LFOs in full or until twelve months expire. Be- sure to pay off LFOs to fulfill the conditions of
ing placed on pay-only probation was often probation. Caroline from Georgia explained:
framed by court actors, especially judges, as
setting people up to succeed by giving them I went ahead and put in for a credit card and
more time to pay. One judge in a high-volume I don’t want to do that. I don’t. But I feel like
municipal court we observed in Georgia said that’s my only option to kind of walk away
he was “glad to do it” after a defendant ac- from it. It’s not fair. And now I have to go
cepted his offer to be placed on private proba- through this whole situation where in two
tion supervision for twenty-four months be- weeks I gotta come back to her and see if I do
cause she could not pay her traffic fines that qualify for community service and if I don’t
day. However, for many, this system only served qualify for the community service, yeah I’m
to entangle people in the system for longer pe- probably just going to have to put it all on the
riods and often bound people to greater surveil- credit card and just let them. I’ll just pay it
lance and legal precarity (Pattillo and Kirk off on the credit card that way. And I don’t
2021). Our field notes in one Georgia jurisdic- want to do that cause I’m like, I’m trying my
tion provide an example: “Defendant pleads best to keep it clean and keep rising the score
guilty to both counts. He is charged with $256 cause I want to get a home.
for the speeding charge and $1,506 for the drug
charge. The case was processed quickly. ‘Is In this instance, and many others, both
twelve months enough time to get that paid credit and securing housing are compromised
off?’ the judge asks. ‘No, because I can’t work,’ as a result of having few options to pay LFOs in
the defendant responds. Judge says that he order to minimize time spent on probation
does not want to set anyone up for failure and (Pattillo et al. 2022, this volume). Lack of trans-
attorney and agrees to twenty-four months on portation due to license revocation as a condi-
probation to get the fine paid off.” tion of probation is another collateral conse-
In Georgia, probation agencies can charge quence that limits defendants’ ability to secure
supervision fees only for the first three months. and maintain employment. One judge in a
But, if fines are converted to community service Georgia court explained: “If you don’t finish
then the supervision fee is reinstated, which in your probation terms, it’s going to be harder to
practice contradicts the provision of commu- get your license back. It may be because there’s
nity service for those who are indigent. something substantive you haven’t done, like
The payment process can continue indefi- you haven’t taken your risk reduction class. But
nitely in Missouri. Individuals in some of the if you don’t show up for probation, and you
municipal courts we observed were regularly don’t pay your probation fines and fees, and
placed on pay-only dockets. As long as the in- you don’t do what you’re ordered to do, it’s go-
dividual appeared in court, no formal sanction- ing to be harder to get your license back, one
ing was applied beyond the continued “process way or the other.”
as the punishment,” whereby the individual is In both states, private probation is fre-
indefinitely tied to the courthouse. Pay-only quently viewed as a form of exploitation by par-
probation was not a universal feature in Mis- ticipants and even by some court actors. This
souri. Some municipal courts actors elected to aspect of private probation supervision under-
monitor payment in-house. Although individu- mines proportionality because the fees they
r sf: t he russell sage f ou n dat ion jou r na l of t he so ci a l sciencesYou can also read
