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Without funds to pay fines, minor incidents can mean jail time

April 12, 2014 at 11:00 AM EDT
Cities across the country are increasingly turning to what are known as private probation companies to collect unpaid fines. But are indigent people ending up in jail because they can't afford to pay? Special correspondent John Carlos Frey takes an in-depth look at what some are calling the return of the debtor's prison.

Timothy Fugatt, the minister of music at this church near Childersburg, Alabama, says that it’s his deep faith in God that got him through some tough times. His son, Cole, was born with a rare brain disease.

TIM FUGATT: The spheres in his brain didn’t divide properly. So pretty much when you look through a CT scan, it was nothin’ but fluid.

But life got even tougher after a seemingly minor incident in December of 2010 when he was pulled over by police and ticketed for an expired license plate tag.

TIM FUGATT: I was coming from the hospital where had been staying with Cole there in the hospital. And as I come into town, they had– a traffic checkpoint.

Timothy’s wife, Kristy, had also gotten tickets for two traffic infractions and both were ordered to appear in the Childersburg municipal court. The Fugatts told the judge about their hospitalized son and were both found “not guilty”, as these court documents show. But the judge ruled that the two still had to pay “court costs” of about $500.

During this period, Timothy Fugatt says he was spending so much time at the hospital with his son that he couldn’t hold down a job, and with his wife also not working, they couldn’t afford to pay the court costs… so their case was turned over to Judicial Corrections Services, a private company that collects fines for the city.

Fugatt says that Judicial Corrections Services, known as JCS, told him that he and his wife could be jailed if they didn’t pay what they owed.

TIM FUGATT: They would just plain out say, you know, // “If– if you can’t pay then they’ll issue you a warrant for your arrest.”

JOHN CARLOS FREY: Did that scare you?

TIM FUGATT: Of course.

Fugatt says he did the best he could to pay off his family’s fines, but says when he couldn’t continue to pay and he and his wife missed at least one court date, they were arrested and jailed.

TIM FUGATT: I felt completely like a criminal. I mean I didn’t sell drugs. I didn’t break into anyone’s home. I didn’t kill anybody. I had an expired tag.

JOHN CARLOS FREY: So you and your wife were found not guilty of the traffic violations. But still you were being arrested.

TIM FUGATT: We were being arrested, yes. I was very upset, very angry

They were released several hours later when a relative paid a portion of what they owed.

That incident contributed to the Fugatt’s decision to become part of a lawsuit against Judicial Corrections Services and the town of Childersburg. The suit alleges that incarcerating people who can’t pay their fines violates the constitution. Though some experts argue that jail time is legal for those who don’t make a good faith effort to pay their fines, In 1971 The Supreme Court ruled that the Constitution prohibits imposing “a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.”

DAVID DINELLI: That’s exactly what’s happening here.

David Dinelli is the deputy legal directory of the Southern Poverty Law Center, a non-profit civil rights organization that is not involved in the Fugatt’s lawsuit but has represented others in similar situations. Dinelli estimates a 1,000 people every month are going to jail in Alabama because they cannot afford to pay a fine.

DAVID DINELLI: Everyone thinks that debtor’s prison is over. It’s behind us. It isn’t. As a matter of practice, and in some cases, policy, the courts ask one question, “Can you pay the fine.” If you can’t then you have to what’s called “sit it out in jail.” That is unconstitutional unless the court first conducts an inquiry into whether they’re indigent and the causes for their inability to pay the fine. Routinely what’s happening here is that no such inquiry is undertaken.

JOHN CARLOS FREY: Did anyone in the court every try and assess whether or not you could afford the pay the fees?

private probation

TIM FUGATT: No, Sir. It was just pass and go. It was really fast. It was really fast.

Collecting fines is more important than ever because many cities face budget shortfalls. But these same cities don’t have the personnel to collect the fines. So increasingly they turn to what are known as private probation companies. That’s where Judicial Corrections Services comes in.

STEVEN BOONE: We were approached by the– the probation service. They found a niche.

Childersburg officials declined to speak with us, so we met with Steven Boone, the finance director for Mountain Brook, a city neighboring Childersburg that also hired Judicial Correction Services. Its court is one of over a 1,000, in at least 12 states across the country, that’s hired a private probation company, according to Human Rights Watch.

Judicial Correction Services collects fines at no cost to the cities it works for.

STEVEN BOONE: They’re helping us to become more efficient, and they’re helping us to ensure that we don’t get a backlog of delinquent accounts that may ultimately get so old and people move away that we’ll never collect it. So it’s– I think it’s a win/win.

SENATOR CAM WARD: I think private probation has a role.

Republican state senator Cam Ward is the chairman of the judiciary committee and has been following the growing trend of private probation. Not only does Ward support the use of such companies, he believes the industry will continue to grow.

SENATOR CAM WARD: Now, I will tell you this, I think the trend to privatization in– in the area of collections, I think that will continue all across the country until you see a concentrated effort to put more money into the collection services that the state runs.

But these private debt collectors are by definition in business to make money. And even though they don’t charge the city anything, they charge offenders, like Timothy Fugatt, $45 a month plus a $10 start-up fee, until a debt is fully paid off. This on top of the $500 in court costs that Fugatt already owed.

JOHN CARLOS FREY: Can you tell me if you were making an effort to pay these off?

TIM FUGATT: We were. Yes, Sir. Even though, you know, I was makin’ the effort, I wasn’t gettin’ very far with it. It was– it was till all these fees adding up. So I wasn’t gaining much ground.

Still, 4 months after their initial court date, documents show that the Fugatt’s scraped together enough to pay off almost $300 of the $500 they owed in court costs.

But then things went from bad to worse.. in June of 2011, their son, Cole, died. A month later their house that had been in the family for generations was foreclosed upon. At this point the Fugatts say they were consumed with grief and were missing their appointments with JCS. Timothy says he explained the difficult circumstances his family was under, but he says the JCS probation officer wouldn’t work with him at all.

TIM FUGATT: It was all at one time, just– just hit us all at once. And I explained it all to them. But we– you know, it was either pay or go to jail.

JOHN CARLOS FREY: Being threatened with a jail sentence, did that help you to come up with the money?

TIM FUGATT: It helped to try a little harder. But, you know, still. I mean, as the old saying goes, you know, you can’t squeeze blood from a turnip.

Over the next 8 months with JCS monthly fees adding up, the couple missed at least one court date each and were fined additional fees for failure to appear. Then a warrant for their arrest was issued. By the time of their arrest in February of 2012, the Fugatt’s had racked up $2,500 in additional court fines. Remember all this began with three traffic violations for which they were found not guilty.

JOHN CARLOS FREY: If– if you would’ve come up with the money that you owed Judicial Correction Services and you would’ve shown up for all of your appointments with them and to the courts, none of this would have ever happened?

TIM FUGATT: You’re right. It– it wouldn’t have happened. But, you know, the situation I was in, I was doin’ what I could do, you know? I had– a dying child, // no steady job at that point because we were back and forth to the hospital, I was doin’ what I could do.

David Dinelli of the Southern Poverty Law center says that people like the Fugatts end up paying JCS off for years because of all the additional fees and added fines that they often accrue.

DAVID DINELLI: They’re in a system in which all they are doing is paying JCS, Judicial Collection Services on a monthly basis for the privilege of staying out of jail.

We asked legal scholar and Columbia Law professor Gillian Metzger to take a look at the lawsuit and to evaluate the constitutionality of private companies, like Judicial Correction Services, collecting fines for cities like Childersburg. She has no involvement in the case.

GILLIAN METZGER: Part of what due process requires– is that you have an impartial decision maker. And if the company that is imposing the fees and continuing your supervision has a financial interest in your staying under supervision, then that really calls– calls their– impartiality into question. And they have a financial motive. So there is, I think, a real constitutional issue here simply on that arrangement.

Metzger also says the court is obligated to provide alternative options for an individual to pay off a debt to society, such as community service, if he or she is indigent.

GILLIAN METZGER: If you’re not paying because you’re just too poor to pay, then the court can’t automatically imprison you. They have to do an investigation about alternative arrangements in order to– to allow you to work off the fine in some other way.

We reached out to JCS multiple times for an interview, but we never received a reply. But on its website JCS says the lawsuit is “baseless.” We also tried unsuccessfully several times to ask the mayor of Childersburg, “BJ” Meeks, if he was satisfied with the services JCS has been providing the city, but city hall never responded to our request. So we went to a city council meeting to ask.

JOHN CARLOS FREY: After speaking to some of the residents here, they feel like they’ve been threatened with a jail sentence if they don’t pay their fines and I wonder if you had a comment.

MAYOR MEEKS: Well Then that’s up to the court system. Is, you know..

JOHN CARLOS FREY: I mean, is it not unconstitutional to jail somebody who cannot pay their fee?

MAYOR MEEKS: I don’t know, again, if the court system is satisfied with it under state Supreme Court jurisdiction…I know that we contract, we are one of the many many cities in Alabama that uses contract service, and the reason being because of not having enough personnel, we have…
Even State Senator Cam Ward, who supports the private probation industry, has concerns.

STATE SENATOR CAM WARD: What’s currently in existence is almost like the Wild West. There is no regulation. If you’re gonna create a system that, quote/unquote, is a “debtors prison,” all you’re doing is inviting yourself to a federal lawsuit, is what you’re doing.

As for the Fugatts, after being charged an initial court cost of about $500 for traffic violations of which they were found not guilty… court documents provided by the Fugatt’s lawyers show that they’ve paid almost $1,300 to the Childersburg Court. It’s a number that doesn’t even include all the additional monthly fees they paid to Judicial Correction Services… a figure the City of Childersburg declined to provide us due to pending litigation.

Timothy Fugatt says that his family still owes more money to Judicial Corrections Services. How much? He’s not sure. He says JCS stopped contacting him after the lawsuit was filed.