Investigations

The American Civil Liberties Union of Kentucky called Wednesday for an end to private probation arrangements in the commonwealth in light of a new report that found widespread discrepancies in the state’s probation system.

The ACLU’s report found that private companies routinely ignore disclosure requirements, charge inconsistent fees for offenders and operate largely without state oversight.

The Kentucky Supreme Court issued rule changes in January requiring more stringent record keeping and reporting wherever private companies supervise low-level offenders on probation. The change followed a 2016 investigation from the Kentucky Center for Investigative Reporting that revealed these companies operated without state monitoring, without legal agreements with the courts they serve or oversight on fees charged to probationers.

No one in the Kentucky Administrative Office of the Courts — the operations arms of the state’s judicial branch — knew how many such companies operate in the state or which counties they serve, the KyCIR investigation noted. (Read “Inside Kentucky’s Unregulated Private Probation Industry”)

The ACLU found that little has changed this year, and the AOC can’t say which counties use private probation, how many cases are affected or how those offenders fare compared to those on other forms of probation.

“The problem is that the criminal justice system is outsourcing a key component of the justice system to private actors, who are not accountable to the Kentucky Open Records Act and, based on past experience, haven’t been adequately monitored by the courts themselves,” said WIlliam Sharp, legal director of the ACLU in Kentucky.

Tens of thousands of cases in Kentucky each year include sentences of probation. But the responsibility for probation monitoring is a mixed bag.

In many counties, district judges simply schedule probationers for a future hearing in which they must prove they lived up to their end of a plea deal.

Judges can, under state law, put defendants under the watch of state probation offices. But the state Division of Probation and Parole says a tight budget means it can only do limited work in about 18 counties.

The remaining option for judges is to assign monitoring to private companies that charge fees.

Offenders with misdemeanor or traffic offenses are assigned supervised probation through private, for-profit companies in 13 of the state’s 60 judicial districts, according to the ACLU’s report. The AOC provided data to the ACLU with a disclaimer that it shouldn’t be considered a reliable indication of actual sentences.

Though the Administrative Office of the Courts is now required to collect a rundown of monitoring fees, it provided only one company’s prices to the ACLU. The courts don’t appear to be collecting most required monthly reports, and one company detailing its pro bono probation cases sent the same names for several different court districts, the ACLU found.

Since fees vary, offenders in a county served by one company may pay more than in a neighboring county using a different company for services like monitoring or drug testing. Those on private probation who can’t afford the fees may not be receiving the same access to free service than they would in a court-monitored system.

“The costs associated with this private probation monitoring often times has dramatic negative consequences for individuals who are least able to afford them,” Sharp said.

Komala Ramachandra, a senior researcher at Human Rights Watch who also contributed to the ACLU report, said Kentucky’s policies could be considered progressive compared with other states — but not unless those policies are actually implemented and followed.

“There is a lack of oversight at the state level,” Ramachandra said. “That’s a big shortcoming that needs to be addressed.”

In light of the findings, the ACLU is calling on the state to either abolish private probation in Kentucky or approve and track the companies at the state level, instead of allowing each district to decide for itself whether to use private companies and whom to hire. The ACLU also recommended a standard fee schedule, to be set by the AOC, and routine audits of the private probation company operations.

Leigh Anne Hiatt, spokeswoman for the AOC, said in an emailed statement that the agency agrees with many of the report’s recommendations for increased transparency and oversight.

Since the new regulations were enacted, Hiatt said some judges have refused to use private probation agencies and some private probation offices have closed.

“However, as the ACLU’s report points out, even with the rule changes many private probation companies have not complied with their reporting obligations,” Hiatt said.

The AOC will continue working with the Department of Corrections and other justice partners to seek improvements, Hiatt said.

Kate Howard can be reached at khoward@kycir.org and (502) 814.6546.

This story has been updated.

Kate Howard is a veteran investigative reporter specializing in government accountability and higher education issues.