Kentucky judges should stop ordering criminal defendants to report to private probation companies because the judicial branch does such a poor job of monitoring the companies’ performance, the ACLU of Kentucky said Wednesday.
In a new report, the ACLU said its investigators were unable to obtain basic information about the cost and reach of probation companies from the state Administrative Office of the Courts despite mandatory record-keeping rules enacted by the Kentucky Supreme Court. For example, the AOC could only provide the fee schedule for one of the six companies operating, the ACLU said.
A similar investigation of the probation companies in 2015 showed the same erratic record-keeping, the ACLU said.
“AOC is still unable to provide reliable data regarding which counties use private probation, how many cases are affected or the relative outcome of those cases compared to other forms of probation,” the ACLU wrote in its report.
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Under Supreme Court rules, probation companies are supposed to send updated information about their various fees, employee training, policies for accepting indigent defendants, complaint procedures, liability insurance and other matters to the AOC and to the judicial districts where they operate. This is the information the ACLU said often cannot be provided, either in Frankfort or in local courthouses.
District judges in roughly one-fourth of Kentucky’s 120 counties sentence low-level defendants to probation companies for community supervision, arguing that state probation offices in their area are too underfunded to handle more work. The first probation company, Kentucky Alternative Programs, was founded in 1989 by Terry Mann, a former state representative.
For defendants, costs can range from a monthly $25 fee to $65 for a drug test to $100 to have a monitoring bracelet attached.
The ACLU said it also requested information about probation companies from local judicial districts and from the companies themselves. “Responses varied greatly,” the ACLU wrote. Sometimes there were no responses, the group said; other times, the responses provided little if any detail.
“Another troubling element to the districts’ responses is particularly noteworthy,” the ACLU wrote. “Specifically, many of those districts that responded affirmatively to using Kentucky Alternative Programs sent in identical, or nearly identical, case-related documentation for that company even though those documents should have been specific to each judicial district.”
For instance, the ACLU said, several different judicial districts produced the same names of pro bono clients whom Kentucky Alternative Programs allegedly represented without charge in their separate counties. The Supreme Court requires the courts to monitor the status of cases that they refer to the probation companies when defendants cannot afford to pay.
“Thus, it appears that some districts simply referred our requests to the private probation companies for a response without having collected or maintained the district-specific information that has been mandated,” the ACLU wrote.
“As evidenced by our attempts to collect information directly from the judicial districts, inconsistent, incomplete and, in some instances, non-existent record-keeping prevents the public from from having an accurate picture of private probation throughout Kentucky,” the ACLU wrote.
Mann, founder of Kentucky Alternative Programs, said any duplicated names on different lists that his company provided might be the result of “overlap” from offices that serve more than one judicial district. His company has offices in Newport, Frankfort, Lawrenceburg, Elizabethtown, Richmond, Danville and Georgetown.
“If that’s the case, if that’s the problem, then we can change that,” Mann said.
Mann said his company provides its fee schedule and other required information to the district courts where it operates. He said it wasn’t his understanding that he also had to provide it to the Administrative Office of the Courts as well.
The ACLU’s real grievance with probation companies is that it doesn’t believe a for-profit business should be performing a state function, Mann added.
“I think you have a basic philosophical difference of opinion here rather than this perceived problem over whether we’re supposed to be turning in our paperwork at the local courthouse or at the AOC,” Mann said. “The question is really whether the taxpayers should have to pay these fees or whether it’s OK for our clients to pay them based on their ability to pay, which is how it works. We do have a sliding scale, and we don’t turn anyone away.”
The AOC reviewed the ACLU’s report and “agrees with many of its recommendations for increased transparency and oversight in this arena,” said agency spokeswoman Leigh Anne Hiatt. “The AOC also sees an enhanced role for other justice partners, including the Department of Corrections in the executive branch, which oversees all probation in Kentucky.”
The Supreme Court tightened its reporting requirements on probation companies as recently as last year, Hiatt said.
“Even with the rule changes, many private probation companies have not complied with their reporting obligations,” she said. “In March of this year, Chief Justice (John) Minton sent an email to all district court judges reminding them of the new Supreme Court rules and encouraging them to respond to the ACLU’s requests for information.”
Under the Supreme Court’s rules, probation companies cannot have financial or family ties to the judges who assign defendants to them. Judges must oversee the companies’ performance in each case to protect the rights of the defendants.
Given the continued lack of transparency with the probation companies, the wisest course would be for Kentucky courts to stop using them altogether, the ACLU said.
Some of the most populous counties, including Fayette, Kenton and Warren, do not use private probation, according to the ACLU’s report. In other counties, such as Daviess, one judge works with private probation while another judge does not, so defendants can get stuck with private monitoring fees depending at random on which courtroom they’re sent to.
If Kentucky chooses to keep private probation services, the ACLU said, considering the profit motive at stake, district judges should not get to decide whether to send defendants to a local company. Instead, to avoid financial conflicts, the state Supreme Court should choose which district courts need to use private probation companies, the ACLU said. And the high court should do a better job of enforcing its rules on record-keeping and public disclosure, the group added.