Does a company have a constitutional right to contracts that judges find violate public policy or the Constitution itself? And, if so, can a company sue for money damages from those officials for whatever profits it lost from losing the right to enforce those contracts?The Marshall Project does a good job of making concrete how private probation first comes to a locale and can silently rack up charges for small crimes.
The story here isn’t that a private probation company engaged in predatory tactics. That’s become a commonplace feature of our justice system. The story is that a company that consigned many residents of Craighead County to hopelessness considers itself the victim.
To reduce public expenses on probation enforcement, local officials outsource the work to private probation companies. The companies have a monopoly; there is no “public option,” you might say. When a resident gets into a little trouble with the law — say a speeding ticket — the judge orders probation and a fine, and the company takes over. The defendant signs what amounts to a one-sided contract. If that original fine isn’t paid, the contract allows the company to impose new fees and fines using the threat of jail as a cudgel to force payment.One day in August 2016, Boling had 34 defendants before him and only six were accused of crimes; the rest all were there to deal with not complying with The Justice Network.
From 1997 until earlier this year The Justice Network had an exclusive deal, a very profitable one. The company, based in Tennessee, says it employed 12 people to handle the crush of business — millions of dollars in revenue over the years. The company says it charged defendants a $35 monthly fee for “probation services” and a $15 monthly fee for “the supervision of public service work.” In 2011, local media reported, the company collected $556,548 in fees.
Between court fees, fees paid to probation companies, and in some cases, fees for electronic monitors, defendants can end up paying two or three or five times what they would’ve originally owed in fines. Activists and legal advocates have started to pay attention to the growing industry.*And, lastly, the incomparable Sarah Stillman has a great article discussing the whole industry called "Get Out of Jail, Inc."