Georgia’s Privatized Probation Statute Facially Constitutional, but Problems with Administration

by David M. Reutter

While declining to rule on the constitutionality of a state law authorizing privatized probation services, on November 24, 2014 the Georgia Supreme Court issued a 41-page decision that alters the administration of that statute.

The Court ruled in an appeal in consolidated cases filed by 13 misdemeanor probationers in Columbia and Richmond counties. The first issue the Court addressed was the statute’s constitutionality. As the trial court had not distinctly ruled on that claim, the Court said it could not consider arguments related to the issue; it did find the statute was not unconstitutional on its face, though.

The probationers also argued that their due process rights had been violated because the financial interests of private probation officers denied them fair and impartial tribunals, as the officers encouraged courts to impose excessive and improper terms of probation. The Supreme Court held the state was required to continue to provide due process to individuals under its supervision; however, due process does not prohibit it from contracting with private companies. The probationers conceded their claims arose from employees of the contractor, Sentinel Offender Services, failing “to abide by the limited statutory authority granted.”

Next, the Supreme Court held the practice of tolling a misdemeanant’s probation sentence was “not permitted.” With “respect to a misdemeanor conviction, sentences are fixed at one year, and once a sentence has been served, jurisdiction over the defendant ceases.” In regard to electronic monitoring, the Court found it was “a condition of probation which does not necessarily require explicit statutory authority in order to be imposed.”

Having settled those issues, the state Supreme Court considered whether the probationers had a “right of recovery” against Sentinel under the doctrine of “money had and received” for probation supervision fees collected by the company that were not lawfully imposed.

The Court found the contract between Sentinel and Columbia County was invalid because it had not been approved by the county’s governing authority as required by statute. Absent a valid contract, Sentinel “had no right to collect probation supervision fees from the plaintiffs.” The principle of equity, the Court held, did not protect Sentinel, and it must “disgorge probation supervision fees it collected from the Columbia County plaintiffs under an invalid contract.” Richmond County’s contract, on the other hand, had been properly approved and thus was valid.

The plaintiffs sought recovery for probation fees paid after the expiration of the terms of their original sentences or periods of electronic monitoring. As those additional unauthorized fees were collected pursuant to an appealable criminal court order, the Supreme Court held they could not be collaterally challenged. The sentences, however, could be challenged and found illegal in a habeas proceeding, which could allow recovery of the fees paid under an illegal sentence. Finally, the Court reversed the trial court’s finding that Sentinel could not collect electronic monitoring fees during the term of a probationer’s original sentence, though fees collected after expiration of the original sentence may be recoverable.

The lower court’s order was affirmed in part and reversed in part, and on remand the trial court was instructed to reconsider its conditional grant of class certification and grant of injunctive relief in the consolidated cases. See: Sentinel Offender Services v. Glover, 296 Ga. 315, 766 S.E.2d 456 (Ga. 2014).

PLN has previously reported on problems with privatized probation services both in Georgia and other states. [See: PLN, Jan. 2014, p.18; June 2010, p.22].

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