Report addresses concerns about private probation company JCS
by Chris Norwood
BIRMINGHAM — Former Alabama Supreme Court Associate Justice Bernard Harwood unveiled a special report Thursday that he has completed regarding concerns about Judicial Corrections Service, a private probation company that works with many municipalities in Alabama, including Talladega, Lincoln and Childersburg.

The controversy surrounding the company and its services has drawn national attention, including a two-part series in the New York Times.

According to a 2010 lawsuit against the city of Harpersville, which is also a JCS client, the company was jailing and levying expensive fines against people convicted of misdemeanor charges. Shelby County Circuit Judge Hub Herrington issued an order on July 11 raising a dozen different issues by the complaint, and the Harpersville Municipal Court was abolished at least partially as a result.

Harwood said he was commissioned to study the concerns listed in Herrington’s order, and declined to comment on the Shelby County suit or a subsequent federal class action suit that also includes a plaintiff from Childersburg.

Harwood said he had requested copies of all court filings, depositions and other discovery items, interviewed the JCS senior official in Alabama and researched relevant case law and attorney general’s opinions. He was also paid for his time by JCS.

After establishing the legality of private probation companies, Harwood addressed each of Herrington’s concerns. First, Herrington said that “fines and fees charged to the plaintiffs … reached into thousands upon thousands of dollars.”

Harwood said he found “no evidence in the materials that the probation fees of JCS ever reached such levels. The determination of the amount of any fine originally and the determination of any increase in fines and costs based on the assessment of jail fees and warrant fees was solely the domain of the municipal court.”

This finding set the tone for most of the other findings in Harwood’s report, saying essentially that the allegations were more properly against the Harpersville Municipal Court than against JCS.

The second concern states that “defendants were charged unconscionable fines and fees,” which Harwood answered similarly by pointing out that the municipal court judge “sets the fine and court cost. JCS has no control over the amount of jail fees assessed and they do not affect the amount of its fees.”

Similarly, the Shelby County order said “defendants were incarcerated for failure to appear in court, although only ‘ordered’ to do so through JCS.” Harwood responded that “in ordering a defendant to return to court for a particular setting, JCS was only relaying the docket setting information provided for it by the magistrate.”

Next, Harwood addressed the allegation that “defendants were placed on probation without an adjudication or sentencing order and/or without receiving a suspended sentence.”

He found that “whether an order placing a defendant on probation is preceded by a properly formal adjudication/sentencing order/suspended sentence does not appear to be a function or responsibility of JCS under its client agreement with the town or under any applicable statutes or the Alabama Rules of Criminal Procedure. It does not appear that JCS had any responsibility to determine independently whether an order of probation duly signed by (the municipal court judge) had all the necessary adjudicatory underpinnings.”

Next, the Shelby County order said “defendants were placed on probation with JCS only when unable to pay the entire amount of assessed fines and court costs on the day of trial.”

Again, Harwood said, determination of whether or not a defendant is placed on probation or given an extended time to pay was up to the judge, not the company.

Next, Herrington raised the concern that “defendants were incarcerated for a probation violation (failure to pay, failure to appear, contempt of court) without an adjudication or sentencing order.” Once again, Harwood determined that JCS did not have a duty or responsibility to determine if the proper paperwork was in order, and the decision regarding incarceration was up to the court, not the company.

Next, “a defendant’s failure to appear or failure to pay often results in a new criminal contempt charge with incarceration and additional fines and fees with no valid court order or adjudication,” to which Harwood said was exclusively “the prerogative and function of the municipal court. … Any subsequent involvement of JCS is simply with respect to implementing any directives issued to it by the municipal court.”

The next item on Herrington’s list was “defendants not afforded a hearing as required by the … Alabama Rules of Criminal Procedure.” Once again, enforcement of the rules of criminal procedure is up to the court, not the company.

Next, the Shelby County order referred to “defendants placed on extended probation for many years beyond the two year maximum.”

Harwood found that “it is the policy of the municipal court to place all defendants on probation for an initial term of 24 months. The common practice is continual extension of the probation until the fine is paid in full. There is no showing that JCS is consulted by the municipal court or has any participation otherwise in the extension of a probation term beyond 24 months.”

“Defendants are interminably held in the county work release program until all fines are paid in full,” according to the next finding. Here, Harwood pointed out that “the payments the municipal court receives from the work release program do not come through JCS, but come direct(ly) to the municipal court. JCS is not informed when a work release payment is made, because once a defendant is ‘out of JCS,’ they no longer have control. They send it back to the court and they’re out of it,” he said, quoting one of the documents stemming from his interviews. “A defendant in work release is not under JCS supervision.”

The longest allegation from the Shelby County order says that “defendants placed on probation are charged with an initial set-up fee of $10 and a monthly probation fee of $35, which is charged as long as the defendant is on probation. For example, under the Harpersville JCS contract, a defendant who is unable to pay a fine of $200 on the day of the trial is placed on probation. If that defendant paid $50 per month to the JCS probation office, the defendant will not have satisfied his probation for 14 months and $700.” If the payment to JCS was $45 per month, which it is in most larger cities, the first two months would only cover JCS payments and it would take an additional 40 months and $2,100 to cover the fines.

Harwood concluded that “the monthly probation fee is specified in each order of probation. I am not able to respond to the ‘example’ in an informed manner, other than to say that it would appear that JCS does not, in all, if any situations, deduct from payments received from its full probation fee before any part of the payment is allocated to the municipal court.” In other words, the company pays the court first and then collects its fee.

Lastly, Harwell addressed the finding that “multiple incarcerations were imposed upon the plaintiffs in the case at bar with no adjudication or imposition of sentence and for probation violations over which the court had absolutely no jurisdiction.”

In response to this, Harwell said, “Any order of incarceration would be exclusively the prerogative and function of the municipal court and whether that court had ordered the same with no adjudication or imposition of sentence would have been a matter for the court to determine. There is no indication in the materials before me that JCS had any responsibility under the client agreement for investigating ‘behind’ orders of incarceration to see if all the paperwork was in order or to ascertain whether for some reason the municipal court did not have jurisdiction to order the incarceration in question.”

Although Harwood studied the concerns raised in the Shelby County order in detail, he declined to give any opinion on the pending suits.

© 2012