In the long-awaited decision regarding the constitutionality of private misdemeanor probation, the Supreme Court issued a unanimous decision Monday affirming that private probation is legal, though in several other instances the court found against Sentinel Offender Services, the private probation company at the center of the private probation controversy here in Georgia and in a growing number of states across the country.
The decision is a blow to opponents of private probation, who don’t believe for-profit companies should be administering probation services.
Opponents like local attorneys Jack Long and John Bell believe that private probation should be found unconstitutional because companies like Sentinel are allowed to use the legal system to collect fees. And because companies like Sentinel pay bonuses, there is a financial incentive for employees to issue more warrants.
More warrants, they say, equals more money for Sentinel and less freedom for those on probation.
Historically, the state administered probation services, but a controversial law passed in 2000 transferred state probation services to the counties, and most counties decided to contract with private probation companies, which are typically paid through fees assigned to the probationers.
Even though the law was tainted by the conviction of the former head of the state Board of Pardons and Paroles, who went to prison for taking a $75,000 bribe from a private probation company that would later be purchased by Sentinel, the concept of private probation was quickly adopted by much of the state.
Monday’s decision clearly states that the court disagrees with the argument that by permitting courts to outsource probation services, misdemeanor probationers are deprived of their constitutional right to due process and equal protection under the law.
“While the supervision of probation is a function historically provided by state probation officers, the mere act of privatizing these services does not violate due process,” the decision reads. “The due process clause does not prohibit the state from entering into a contract with a private entity for the provision of probation supervision services but requires that when it chooses to do so the state continue to provide due process to individuals under its supervision.”
Under the framework, the court said, the sentencing court decides whether or not to probate a defendant’s sentence and determines the conditions under which the probation occurs.
In other words, the Supreme Court found that the structure of private misdemeanor probation continued to give the sentencing court the power to control the probation process, even if it didn’t always use it properly. Though the court may have found the practice constitutional, it didn’t find it flawless, and the flaws it found were with Sentinel.
“As found by the trial court, most of the injuries alleged by the plaintiffs in these cases occurred not because of Sentinel’s compliance with the restrictions placed upon it by the private probation statutory framework,” he decision reads, “but because of Sentinel’s failure or the failure of its employees to abide by the limited statutory authority granted.”
According to the former deputy, who requested anonymity, normal procedure would require a deputy or law enforcement officer to briefly explain the reason the warrant was being requested. Sentinel, the former deputy alleged, simply hands the judge a stack of warrants and waits for the judge to sign them.
Poor practice, perhaps, but according to the Supreme Court, not unconstitutional.
The court also found that electronic monitoring as a condition of probation does not require explicit statutory authority to be imposed because “a sentencing judge can suspend or probate all or any part of a defendant’s sentence ‘under such rules and regulations as the judge deems proper.’”
The only restriction on a sentencing court, the court found, is that the conditions of probation it imposes must be reasonable, and as long as the sentencing court retains control, the Supreme Court seemed content not to interfere.
However, the court did find that in Columbia County, where Sentinel operated without a valid contract, the private probation company had no right to collect probation supervision fees. It also found that payments made under a void contract are recoverable, which sets up a potentially expensive scenario in which those who made payments to Sentinel demand reimbursement.
The court also decided that the practice of tolling is not permitted.
“With respect to a misdemeanor conviction, sentences are fixed at one year and once a sentence has been served, jurisdiction over the defendant ceases,” the decision reads.