Hump Day Hall of Shame: The Privatization of the Justice System Beyond Prisons

Welcome to The Hump Day Hall of Shame:  Every Wednesday we highlight the private prison industry’s influence on public policy through campaign contributions, lobbying, and the revolving door of public and private corrections.

In a recent blog post on GEO Care’s potentional take over of Kerrville State Hospital and private prison companies getting into the business of mental health care, Jim Rigby, a well-known progressive Presbyterian minister in Austin, wrote, “When one lives in a capitalist culture where everything is for sale, one get(s) used to privatization.”

This led to me wonder where else privatization and profit are driving forces in the justice system beyond the movement to privatize prisons and immigration detention centers.   Per Rigby’s statement, I found myself looking at two issues that are rarely scrutinized for the private aspects of their practice; the businesses of debt collection and writing bail bonds.  It seems as though, in our culture, we have accepted as a norm the delivery of these services as being in the purview of business and not core government functions.   As it turns out, just like prisons, both debt collection and bail bonds have been built into industries in which private businesses are able to make a profit off of individuals’ interaction with the criminal justice system, and so their interest is in ensuring a consistent flow of “customers” in their direction.  It also turns out that there are alternatives.

Just this week the New York Times published an expose on the relationship between district attorney’s offices and debt collection companies.  According to the article, it is common practice for D.A.’s offices to authorize the use of their letterhead for debt collection agents to send threatening letters of prosecution to individuals who have written “bad” checks, even for negligible amounts of money.  The article profiles a woman who accidentally wrote a bad check for less than fifty dollars to Walmart, and was pursued by debt collectors to pay nearly $300.  Why so much money?  Because debt collectors also charge the check writer a fee for “financial accountability” classes which they are led to believe they must take or face the possibility of jail time.  A portion of the class fee goes to the D.A.’s office, the publicly-funded office that is responsible for the resolution of these disputes.  The lion’s share of these fees goes directly back to the private for-profit debt collection company.  It’s also worth noting that this mechanism by-passes the legal process of first convicting a person of a crime, so check writers are being asked to “comply” with their “sentence” preemptively, which has been challenged by lawyers in courts across the country.

In the criminal justice advocacy world, the ongoing debate around the practice of using money for bail is a common one.  As an antiquated and almost internationally extinct mechanism for ensuring individuals comply with the criminal justice process, one that only the United States and the Philippines still rely on, there are many reports of how the practice disproportionately disadvantages low-income people and people of color, and how statistically the practice informs the sentencing process; those who can’t post bail are more likely to receive harsher sentences.

It’s no surprise that bail is also for sale.  Bail bond companies are private, for-profit businesses that post bail for their clients in exchange for a non-refundable fee of 10% of what bail is set at (and sometimes also require other collateral).  If the client’s case drags on for more than a year, the bond company can charge more.  If a client is acquitted or the charges against them are dropped, they are not entitled to a refund on their 10% fee.  And therein lies the profit, which is why bondsmen are very discerning about who they take on as clients.  “It’s really the only place in the criminal justice system where a liberty decision is governed by a profit-making businessman who will or will not take your business,” John Goldkamp, a professor of criminal justice at Temple University, told the New York Times in a 2008 interview.

And since it’s a (big) business, it is in bail bond companies’ interests to protect their profit by ensuring that they receive a steady stream of individuals seeking their services.  In very similar ways to what we’ve seen in prison privatization, through national, state, and county-level professional associations, bond companies have invested large sums of money in lobby efforts, the most prominent of which have been the attacks on pre-trial services which are cost-effective, publicly-funded programs that interview and investigate defendants who are awaiting a bail hearing, assess the defendant’s risks of danger to the community and reduce the number of people waiting in jail for their hearings.  These legislatislative efforts are all modeled on the innocuous-sounding Citizens Right to Know Act, which is promulgated by the American Legislative Exchange Council (ALEC), a group that is infamous for its agenda of promoting the privatization of government services and assets for the sake of profit , and of which the Corrections Corporation of America, the largest private prison company in the world, was a member.

Rigby’s point is well-taken, because not getting used to privatization gives us a starting place to advance alternatives that are more just and in the public interest; not in the interest of lining a private individual’s pockets.  Perhaps district attorney’s offices would not feel compelled to outsource the resolution of bad check writing to a private, for-profit company if there were greater investment by local governments in properly funding public functions.  In the case of bail bonds, Illinois, Kentucky, Oregon and Wisconsin have abolished the practice of money for bail entirely.