Outsourcing Rights

La prisión, by SantiMB.Photos, courtesy Flickr Creative Commons

La prisión, by SantiMB.Photos, courtesy Flickr Creative Commons

Collaboration, as you may have heard recently, is a very good thing.  It allows two or more people (or institutions) to accomplish more together than they could independently.  Pooling resources allows work to be done effectively and efficiently.  Even the government gets in on the act, utilizing a variety of public-private partnerships to achieve important goals and support the common good.  Indeed, without such partnerships, the digital age would be rather analog.

However, as beneficial as these partnerships can be, we must remain wary.  Effective and efficient provision of government service can be a great boon to the common good; it can, unfortunately, also lead to a dangerous weakening of our civil rights and other legal protections.

In the criminal justice system, the injection of private interests often erodes legal protections.  Bail bondsmen have long been a controversial part of criminal trials, allowing defendants who otherwise could not post bond to have some freedom pending a trial.  Now, Max Ehrenfreund in the Washington Post reports that such bondsmen have been given access to defendants after trial.

Under this system, adopted in several states and with proposals open in several more, a defendant could be released from custody upon payment of a fee.  He or she would then be required to complete certain terms, similar to probation or parole, and, once the sentence was complete, would get the fee back.  When a defendant is unable to pay the fee, the private bondsman pays it and — here is the concerning part — that private bondsman is then given the ability to supervise the defendant. Ordinarily, supervision entails regular meetings, drug testing, employment verification, payment of restitution, home monitoring, and similar attempts at rehabilitation.  Also, supervision is usually done by government agents.  Now, however, probation and parole have been outsourced, privatized.

Private probation has long been controversial.  The growth of post-conviction bail raises many of the same concerns.  It is true that the system can allow for more non-prison sentences, can help reduce prison overcrowding.  However, it can also lead to many abuses.1 Often the poor are directly affected and their own poverty may mean a return to jail or prison.  Those out on bond are required to pay fees for their own release.  If they don’t pay, they will be returned to jail.  Imagine a collection agency with the power to send you to jail.  Supporters justify it as taking the burden off taxpayers and putting it onto criminals.  Critics point out that this could lead to a perverse situation where poverty leads to jail, which leads to more poverty and more jail.

“There may be a constitutional problem with the whole system,” said Ron Wright, a law professor at Wake Forest University. “You’re enforcing the financial arrangement with the threat of sending someone to prison.”

Such a threat is likely unconstitutional under Supreme Court precedent.2   But, even so, the threat of jail to an unsophisticated individual can be enough to force compliance that would otherwise be excused.  And, as the report notes, many judges and attorneys may be unaware (or just not care) what the Supreme Court has said.3

The problem here isn’t that private corporations are bad actors.  Or that bail bondsmen are villains.  The problems is that private actors have different interests than the government.  Government, ideally, is focused on the common good.  Cooperation with the private sector can help bring that about.  However, when entering into such agreements, the government must make sure to prioritize the common good.  It should work to ensure that private interests, particularly the profit motive, are secondary to the primary goal — in this case the rehabilitation of prisoners, community protection, and preservation of constitutional and civil liberties.  Collaboration  is a useful tool, but it must always be done for the service of the community being served.

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Cover image La prisión, by SantiMB.Photos, courtesy Flickr Creative Commons, found here.

  1. As the story notes, the bail bond industry is effectively illegal in the U.K., Canada, and certain other countries due to these kinds of abuses.
  2. The Supreme Court in Bearden v. Georgia, 461 U.S. 660 (1983) held that a person could not be punished for being poor.  Before revoking probation and  returning a defendant to jail for failure to pay a fine, the Court required a hearing on ability to pay and, if unable to pay, alternative punishment must be found.
  3. The Washington Post story notes that this was exactly the case in Ferguson, according to the Department of Justice’s report on the situation.

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