The Silence Surrounding Alabama’s Debtors’ Prisons

You can draw a straight line from Sarah Stillman’s brilliant expose of Alabama’s private probation industry last June in The New Yorker magazine to the filing late Thursday of a federal civil rights complaint alleging a racketeering conspiracy between a probation company and officials in the Alabama city of Clanton. What lies between is Ferguson, Missouri.

The police shooting death of Michael Brown last August, the resulting protests, and the awakening of some white Americans to the fact that tens of millions of their fellow citizens still live under the cloud of Jim Crow have made us all to look differently about the many broken justice systems in our midst. The sad fact is that America is a nation where too often our judges either countenance predatory economic behavior toward indigent citizens or actively participate in it with the approval of local politicians.

It is sobering in this context to read the allegations in the new lawsuit filed by the Southern Poverty Law Center and styled Reynolds v. Judicial Correction Services. They tell a story (one side of the story, anyway) of how a bad idea — the outsourcing a portion of the justice system to a private entity — inevitably turned into a disaster for countless of the most vulnerable citizens of the state. If the material allegations in the complaint are true, the plaintiffs weren’t just victimized financially they also were subject to a form of emotional torture. They were threatened and cajoled into paying what they did not have while at the same time being continuously deprived of information critical to the exercise of their constitutional rights that would have helped protect them from the scheme.[1]

The deal between the city of Clanton and the private company, as alleged in the complaint, was a curious one for the uninitiated. The company promised not to charge Clanton for the probation services it was providing. And the City promised to provide the company with an evidently endless supply of defendants with speeding tickets and other minor infractions. Employees evidently called themselves “probation officers” (even though nothing in Alabama law seems to give them the right to do so) and operated under a logo designed to look like a badge even though they did not do many of the functions one associates with a probation officer. These employees were there to collect the fees and fines and penalties imposed by the court.

If you were wealthy enough to pay your fine in Clanton you surely did so as quickly as you could and probably had nothing to do with the private probationers. But if you didn’t have enough money, and many defendants didn’t, you routinely were dispatched to a form of third-world justice system. The municipal judge, according to the complaint, did not routinely disclose to the defendants in his court that community service (as opposed to fines) was often an option for some of them or that they had a right not to be jailed if they could not afford their fines (which reportedly were higher than they were supposed to be in the first place). These people were not given the option of having a lawyer (since their cases were not supposed to result in jail anyway).

So indigent defendants, routinely deprived of the critical information they need to make informed choices about their payment options, were shunted off to the private company to make payment arrangements to satisfy the debt imposed upon them by the court. At that point, by design, these defendants were subject to a private form of justice system. Employees of the private company wielded enormous power over citizens, not just in determining how much the defendants were supposed to pay each month but also in determining which ones might be sent to jail for failing to pay those often exorbitant amounts. The complaint also alleges that no one at the municipal court ever audited the money received by the private probation company.

What’s remarkable is not just the claim that there was a continuing conspiracy to extort money from people who couldn’t afford to pay it using jail as the hammer. Cast as a racketeering case or not, (and I hope the “racketeering” element to the complaint doesn’t overshadow and thus undermine the more pedestrian causes of action) , we’ve seen similar allegations unfold elsewhere in Alabama, and in Georgia, and in several of the ten other jurisdictions that have privatized probation for misdemeanor.

What’s remarkable is the way public officials in Clanton just handed over the reins of their justice system without any evident concern about oversight. The judge named in the complaint, described as “part-time judge,” comes off as oblivious to what was happening to the litigants before him — either that, or willfully ignorant to the breakdown in basic due process that was occurring in and around his courtroom. How can it be that no one sought to look at how JCS was handling these cases? How could the obvious monetizing of justice not be the subject of intense public debate?

Allegations are not proof, of course, and soon JCS and city officials (and hopefully that municipal judge, too) will have their opportunity to respond to the SPLC’s complaint. Surely this response, whether it is a motion to dismiss predicated on the concept of immunity or something else, will aggressively defend the policies and practices in place. JCS has a history of such assertive defenses. And surely the narrative the defendants offer for public consumption will at the very least complicate the narrative set forth by the plaintiffs and their advocates. There always is another side to this story that can be told.

But so far missing from this story is any news of a larger, broader response to these allegations from Alabama’s political power structure. Such a response is occurring now in neighboring Georgia, which to its credit is seriously contemplating legislation that would significantly rein in the power of private probation companies in that state. The political reform that may be coming to Georgia no doubt has been buoyed by a middling Georgia Supreme Court ruling last fall that raised serious concerns about the sort of “no-cost” private probation arrangement that exists in Clanton, Alabama. Such a ruling from Chief Justice Roy Moore’s Supreme Court in Alabama is hard to fathom, which probably explains why the Clanton case was filed in federal court.

One would think, in a state like Alabama that emphasizes the concept of individual freedom in other areas of contentious public policy, that there would be an outcry at the manner in which the individual freedom of these low-income citizens was taken away. But so far there has mostly been silence. No protests in the streets. No scrambling in the state legislature to prohibit the sorts of deal allegedly made by this city and this company. It has been nearly three years now since Circuit Judge Hub Harrington courageously shut down another scheme like this in Harpersville, Alabama, but so far the state judiciary has been silent about Clanton.

The pervasive, structural problems of Ferguson’s court systems may truly “be everywhere,” as so many people are beginning to realize, but that doesn’t necessarily mean that similar broken justice systems will be remedied anywhere anytime soon. This Alabama case will be a good one to watch for proof of how hard it will be for the necessary reform to come in time to help these people caught up in a system of debtors’ prisons that bears more resemblance to Dickensian England than we’ve previously thought.

[1] In Ferguson, remember, city officials used their municipal court as a money-making enterprise. In Clanton, the allegation is different— that city officials sought to save the costs of probation services, and jail costs, by allowing a private company to take over municipal cases with evidently no meaningful oversight. In each instance, however, those least likely to be able to exercise political or legal power were the targets.