IN THE SUPREME COURT STATE OF GEORGIA

RICHARD L. ANDERSON,

Appellant,

vs.

SENTINEL OFFENDER SERVICES, LLC,

Appellee.

))) CASE NO. S15Q1816 )) [Certified Question from the ) U.S. District Court for the) Southern District of Georgia,) Case No. 2:13-CV-00022- ) LGW-JEG]))

BRIEF OF AMICI, LARRY SCHWARTZTOL, PROFESSOR CAROL STEIKER AND PROFESSOR ALEX WHITING

Lauren Sudeall Lucas, Esq.Georgia State Bar No. 149882Georgia State University College of Law85 Park Place NE, Room 222Atlanta, GA 30303404.413.9258Counsel for Amici Larry Schwartztol, Carol Steiker, and Alex Whiting

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

Cases ..................................................................................................................... iii

Statutes.................................................................................................................. vi

Secondary Sources............................................................................................... vii

INTEREST OF AMICI..............................................................................................1

PRELIMINARY STATEMENT ...............................................................................3

ARGUMENT .............................................................................................................6

I. THE TOLLING OF PRIVATELY SUPERVISED MISDEMEANOR PROBATION IS NOT AUTHORIZED UNDER GEORGIA LAW.................6

A. The Georgia Legislature, Not the Common Law, Has Set the Parameters of Probation in Georgia. ..................................................................................6

1. Probation in Georgia is a Creature of Statute. .......................................7

2. Tolling Procedures in the Probation Context Have Been Established by Statute Rather than Common Law. ............................................................10

3. The Authority Sentinel Relies on Underscores the Limits on Judicial Authority to Toll Privately Supervised Misdemeanor Probation. .............11

B. Privately Supervised Misdemeanor Probation Is a Modern Invention that Has Been Addressed by the Legislature but Not the Common Law.............14

1. Privately Supervised Misdemeanor Probation Is Susceptible to Abuse by Private Companies Incentivized by Debt-Collection, not Law Enforcement or Rehabilitation. ..................................................................14

a. The Offender-Funded Model ............................................................16

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b. Incentives to Maximize the Period of Supervision...........................17

2. House Bill 310 Reflects the Importance of Balancing Authority to Toll Privately Supervised Misdemeanor Probation with Necessary Procedural Safeguards. .................................................................................................22

II. EVEN IF GEORGIA COMMON LAW PERMITTED TOLLING OF PRIVATELY SUPERVISED MISDEMEANOR PROBATION, IT WOULD BE ABROGATED BY THE STATE-WIDE PROBATION ACT ..................28

iii

TABLE OF AUTHORITIES

Cases

Affronti v. United States,350 U.S. 79 (1955) ................................................................................................... 8

Anderson v. Corall,263 U.S.193 (1923) ................................................................................................. 26

Barnett v. Fulton County,255 Ga. 419 (1986) .................................................................................................. 7

Bearden v. Georgia,461 U.S. 660 (1983) ............................................................................................... 20

Chan v. Ellis,296 Ga. 838 (2015) ................................................................................................ 29

Conrad v. Evridge,315 S.W.3d 313 (Ky. 2010) ..................................................................................... 8

Couch v. Red Roof Inns, Inc.,291 Ga. 356 (2012) ................................................................................................ 29

Delta Airlines, Inc. v. Townsend,279 Ga. 511 (2005) ................................................................................................ 29

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Gordon v. Johnson,126 Ga. 584 (1906) ............................................................................................ 8, 12

Harrelson v. Jones,No. 08-RCHM-00006 (Dec. 2, 2008) ............................................................... 17–18

Henrique v. U.S. Marshall,476 F. Supp. 618 (N.D. Cal. 1979) ........................................................................ 26

Johnson v. Rogers,297 Ga. 413 (2015) ................................................................................................ 28

MacNeill v. Wertz,198 Ga. 47 (1944) .................................................................................................... 8

Neal v. State,104 Ga. 509 (1898) ................................................................................................ 11

Norman v. Rehberg,12 Ga. App. 698 ((1913) ........................................................................................ 12

O'Dwyer v. Kelly,133 Ga. 824 (1910) ................................................................................................ 12

Plunkett v. Miller,161 Ga. 466 (1925) ................................................................................................ 13

Roberts v. Lowry,160 Ga. 494 (1925) .......................................................................................... 13, 14

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Roberts v. Wansley,137 Ga. 439 (1912) ................................................................................................ 12

Sentinel Offender Servs., L.L.C. v. Glover,296 Ga. 315 (2014) .......................................................................................... 14, 15

Shamblin v. Penn,148 Ga. 592 (1918) ................................................................................................ 13

United States v. Buchanan,638 F.3d 448 (4th Cir. 2011) ................................................................................. 26

United States v. Crane,979 F.2d 687 (9th Cir. 1992) ................................................................................. 26

United States v. Grant,727 F.3d 928 (9th Cir. 2013) ................................................................................. 26

United States v. Hernandez-Ferrer,599 F.3d 63 (1st Cir. 2010) .................................................................................... 26

United States v. Luck,664 F.2d 311 (D.C. Cir. 1981) ................................................................................27

United States v. Murguia-Oliveros,421 F.3d 951 (9th Cir. 2005) ................................................................................. 26

United States v. Watson,633 F.3d 929 (9th Cir. 2011) ................................................................................. 26

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Wall v. Jones,135 Ga. 425 (1910) ................................................................................................ 12

Whitworth v. State,275 Ga. App. 790 (2005) ......................................................................................... 9

Statutes

O.C.G.A. § 17-10-3 .................................................................................................. 9O.C.G.A. § 42-3-2(g)(2) ........................................................................................ 23O.C.G.A. § 42-3-52(a) ........................................................................................... 24O.C.G.A. § 42-8-20 .............................................................................................. 7, 8O.C.G.A. § 42-8-100 ................................................................................................ 9O.C.G.A. § 42-8-102(e)(2) .................................................................................... 24O.C.G.A. § 42-8-102(c)(3) .................................................................................... 24O.C.G.A. § 42-8-102(c)(1) .................................................................................... 24O.C.G.A. § 42-8-102(c)(4) .................................................................................... 24O.C.G.A. § 42-8-103(b) ......................................................................................... 22O.C.G.A. § 42-8-104 .............................................................................................. 10O.C.G.A. § 42-8-105 ........................................................................................ 10, 27O.C.G.A. § 42-8-105(b)(1) .............................................................................. 22, 25O.C.G.A. § 42-8-105(b)(1)(A) ................................................................................ 25 O.C.G.A. § 42-8-105(b)(1)(B) ............................................................................... 25O.C.G.A. § 42-8-105(b)(1)(C) ............................................................................... 25O.C.G.A. § 42-8-105(b)(1)(D) ............................................................................... 25O.C.G.A. § 42-8-105(b)(1)(E) ............................................................................... 25O.C.G.A. § 42-8-106 .............................................................................................. 30O.C.G.A. § 42-8-107(a) ......................................................................................... 30O.C.G.A. § 42-8-107(b)-(c) ................................................................................... 30

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O.C.G.A. § 42-8-108(a) ......................................................................................... 23O.C.G.A. § 42-8-109.2(b)(1)(A) ............................................................................ 23O.C.G.A. § 42-8-109.2(b)(1)(B) ............................................................................ 24Ga. L. 1913.......................................................................................................... 7, 13Ga. L. 1958................................................................................................................ 8Ga. L. 1960 ................................................................................................................ 8 Ga. L. 1966................................................................................................................. 8 Ga. L. 1984 ..............................................................................................................10Ga. L. 1986...............................................................................................................10Ga. L. 1991................................................................................................................ 9Ga. L. 1993................................................................................................................ 9Ga. L. 1995................................................................................................................ 9Ga. L. 1996................................................................................................................ 9

Secondary Sources

Sarah Dolisca Bellacicco, Safe Haven No Longer: The Role of Georgia Courts and Private Probation Companies in Sustaining a De Facto Debtors’ Prison System,48 Ga. L. Rev. 227, 238 (2013) ....................................................................9, 17, 19

S. Taylor, Penal Institutions: Prisons and Pardons/Paroles Reform,6 GA. ST. U.L. REV. 287, 293 (1989) ...................................................................... 10

Georgia Dep’t of Audits and Accounts, Performance Audit Division, Misdemeanor Probation Operations,Report No. 12-06, April 2014 ..................................................................... 15, 18, 19

Human Rights Watch, Profiting from Probation: America’s “Offender-Funded” Probation Industry, (February 5, 2014)...........................................16, 17, 18, 19, 20

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Southern Center For Human Rights, Profiting from the Poor: A Report on Predatory Probation Companies in Georgia,6 (July 2008) ...........................................................................................................19

Complaint, Rodriguez et al. v. Providence Community Corrections, Inc. et al., No. 3:15-cv-01048 (M. D. Tenn., Oct. 1, 2015) ............................................................19

Complaint, Edwards, et al. v. Red Hills Community Probation Company, LLC, et al., Dckt. No. 1:15-cv-00067 (M. D. Ga. Apr. 10, 2015) ....................................... 21

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INTEREST OF AMICI

Pursuant to Rule 23 of the Supreme Court of Georgia, Amici Larry

Schwartztol, Carol Steiker, and Alex Whiting submit the following brief to address

the questions certified by the federal district court in this matter. Amici are experts

in criminal justice and criminal justice reform efforts around the country. They

respectfully submit this brief because the questions certified to this Court may have

significant consequences for individuals in Georgia subject to privately supervised

probation, and Amici believe this case raises important issues regarding appropriate

judicial oversight of private probation companies.

Larry Schwartztol is the executive director of the Criminal Justice Program

of Study, Research & Advocacy at Harvard Law School. Previously, Mr.

Schwartztol was an attorney for over seven years with the national office of the

American Civil Liberties Union. Prior to that, he was a Liman Fellow at the

Brennan Center for Justice at New York University School of Law. He clerked for

Judge Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit. Mr.

Schwartztol graduated from Yale Law School and received his B.A. from the

University of Chicago.

Carol Steiker is the Henry J. Friendly Professor of Law at Harvard Law

School and faculty co-director of the Criminal Justice Program of Study, Research

& Advocacy. Her primary interest is the broad field of criminal justice, where her

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work ranges from substantive criminal law to criminal procedure to institutional

design, with a special focus on issues related to capital punishment. Recent

publications address topics such as the relationship of criminal justice scholarship

to law reform, the role of mercy in the institutions of criminal justice, and the

likelihood of nationwide abolition of capital punishment. Professor Steiker is a

graduate of Harvard-Radcliffe Colleges and Harvard Law School, where she

served as president of the Harvard Law Review, the second woman to hold that

position in its then 99-year history. After clerking for Judge J. Skelly Wright of the

D.C. Circuit Court of Appeals and Justice Thurgood Marshall of the U.S. Supreme

Court, she worked as a staff attorney for the Public Defender Service for the

District of Columbia, where she represented indigent defendants at all stages of the

criminal process. She has been a member of the Harvard Law School faculty since

1992, where she was Associate Dean for Academic Affairs from 1998-2001 and

where she currently serves as the Dean’s Special Advisor for Public Service.

Alex Whiting is Professor of Practice at Harvard Law School and faculty co-

director of the Criminal Justice Program of Study, Research & Advocacy.

Professor Whiting teaches, writes, and consults on domestic and international

criminal prosecution issues. From 2010 until 2013, he was in the Office of the

Prosecutor at the International Criminal Court (ICC) in The Hague where he

served first as the Investigations Coordinator, overseeing all of the investigations

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in the office, and then as Prosecutions Coordinator, overseeing all of the office’s

ongoing prosecutions. Before going to the ICC, Whiting taught for more than three

years as an Assistant Clinical Professor of Law at Harvard Law School, again with

a focus on prosecution subjects. From 2002-2007, he was a Trial Attorney and then

a Senior Trial Attorney with the International Criminal Tribunal for the Former

Yugoslavia (ICTY) in The Hague. He was lead prosecution counsel in Prosecutor

v. Fatmir Limaj, Isak Musliu, and Haradin Bala; Prosecutor v. Milan Martic; and

Prosecutor v. Dragomir Miloševic. Before going to the ICTY, he was a U.S.

federal prosecutor for ten years, first with the Criminal Section of the Civil Rights

Division in Washington, D.C., and then with the U.S. Attorney’s Office in Boston

where he focused on organized crime and corruption cases. Whiting attended Yale

College and Yale Law School, and clerked for Judge Eugene H. Nickerson of the

Eastern District of New York.

PRELIMINARY STATEMENT

In 1913, the General Assembly devised, and has since continually molded,

the authority of trial courts to issue sentences of probation. A creature of statute,

probation did not exist as a matter of common law in Georgia before that

legislation was enacted. Privately supervised misdemeanor probation emerged

almost eighty years later, also as a matter of statutory enactment. Like the

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traditional system of government-supervised probation, privately supervised

misdemeanor probation has operated within a detailed statutory framework. In

periodically revisiting this legal framework – including the statutory provisions

relating to tolling – the legislature has guided the development of probation in

Georgia.

In light of the legislature’s well-established role in shaping the law of

probation, the common law is an unlikely source of authority for trial courts to toll

privately supervised misdemeanor probation. Case law predating the 1913

probation statute displayed a deep skepticism of trial courts’ authority to modify

sentences beyond what existing law permits. Since the 1913 probation act, this

Court has looked to statutory authority when delineating judicial power relating to

probation. In recent decades, legislative action in this area has become even more

pronounced. Beginning with the 1956 State-Wide Probation Act, and continuing

through many rounds of amendment in subsequent decades, the legislature has

actively shaped the legal framework governing probation. This energetic

legislative engagement continues to the present: in 2015, the legislature enacted

House Bill 310, which brought about significant changes to how private probation

operates in Georgia.

Privately supervised misdemeanor probation is especially far-removed from

any common law principle that could be seen as providing inherent tolling

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authority. Privately supervised misdemeanor probation is a very recent invention,

first established by law in 1991 and only becoming widespread since the early

2000s. In addition to being new, private probation raises distinctly complex

regulatory concerns. For example, its business model is based on collecting fees

from misdemeanor probationers; often, that disproportionately includes people

who are on probation solely because they could not afford to pay fees or fines

immediately at sentencing, which means the companies’ profits derive from fees

they collect from impoverished misdemeanor defendants. As numerous reports and

lawsuits have shown, this poses very serious due process concerns and threatens

the integrity of the misdemeanor probation system. These concerns have also

attracted legislative attention. The 2015 legislation is addressed in large measure to

these concerns, providing a new regulatory framework tailored to several of the

harms that have been documented.

In light of the complex regulatory questions raised by private probation, it

is unsurprising that the Appellee in this case, Sentinel Offender Services LLC

(“Sentinel”), has been unable to identify any authority directly supporting its

assertion that the common law empowers trial courts to toll privately supervised

misdemeanor probation. Amici are aware of no such authority. Given the long

history of probation as a creature of statutory law, and the distinctive regulatory

needs generated by the recent invention of private probation, the common law is an

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unlikely source of authority. Sentinel devotes much of its brief to emphasizing a

policy argument in favor of the authority to toll privately supervised misdemeanor

probation, focusing as an abstract matter on whether tolling authority is necessary

to prevent probationers from abusing the system by strategically absconding from

probation supervision. Amici take no position on that policy question; however,

Amici do note that the legislature has recently enacted provisions authorizing such

tolling. As a practical matter, then, the question before this Court is whether a

limited number of misdemeanor probationers, who were sentenced without the

benefit of recently-enacted procedural safeguards, may face the risk of future

arrest, extended probation supervision, or other extended-in-time criminal

sanctions. The common law simply does not authorize such an outcome.

ARGUMENT

I. THE TOLLING OF PRIVATELY SUPERVISED MISDEMEANOR PROBATION IS NOT AUTHORIZED UNDER GEORGIA LAW

A. The Georgia Legislature, Not the Common Law, Has Set the Parameters of Probation in Georgia.

The common law does not provide authority to toll sentences issued

pursuant to the State’s extensive legislative framework governing privately

supervised misdemeanor probation. In responding to the certified questions,

Sentinel encourages the Court to focus on cases in a variety of contexts where a

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person’s sentence is interrupted – through court action or because the person

absconds – and then later reinstated by an appellate court. Sentinel asks the Court

to perceive an overarching common law principle applicable here. But it never

identifies a plausible source for such a generally applicable principle.

1. Probation in Georgia is a Creature of Statute.

Georgia law did not provide for probation until 1913. That year, the Georgia

legislature authorized trial courts to “mold [a] sentence so as to allow the defendant

to serve same outside the confines of the chaingang, jail, or other place of

detention, under the supervision of the court, and in such manner and on such

conditions as it may see fit.” Ga. L. 1913, pp. 112–13, §1. The legislature

elaborated the judiciary’s powers over probation when it enacted the State-Wide

Probation Act of 1956, Ga. L. 1956, p. 27 (codified at O.C.G.A. §42-8-20 et seq.),

which the legislature has periodically revised since its original enactment. This

Court has recognized that Georgia courts were not authorized to impose probation

before these statutory authorizations. See Barnett v. Fulton County, 255 Ga. 419,

420 (1986) (citing the 1913 law and the 1956 Act as original sources of authority

for probation in Georgia).

This Court has explicitly held – in cases issued before and after the

legislature established probation – that any judicial authority to impose probation

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must be conferred by statute.1 For example, in Gordon v. Johnson, 126 Ga. 584

(1906), a trial court sentenced a defendant to six months of service on a chain gang

or sixty days in detention; the defendant could avoid this sentence, however, for a

fine of $500, with $400 suspended on good behavior. Id. at 584–85. This Court

struck down the sentence, holding that, without statutory authorization, which did

not exist at the time, the sentencing court had no legal authority to suspend a

defendant’s sentence. Id. at 585. Similarly, in MacNeill v. Wertz, 198 Ga. 47, 50

(1944), this Court noted that the 1913 statute was the sole source of court authority

over probation. Based on that statutory framework, it found that “the judge of the

superior court did not have authority to appoint a probation officer . . . unless and

until the grand jury had so recommended.” Id.

Having created the legal framework for probation in Georgia, the legislature

has periodically revised that framework. The legislature passed the 1956 State-

Wide Probation Act to provide a coordinated alternative to incarceration within the

state’s penal system. O.C.G.A. §42-8-20 et seq. Between 1956 and the late 1980s,

1 The approach in Georgia is consistent with experience around the country. The United States Supreme Court has explained that “[f]ederal judicial power to permit probation springs solely from legislative action.” Affronti v. United States, 350 U.S. 79, 83 (1955) (citing Ex parte United States, 242 U.S. 27 (1916)). Other state supreme courts have recognized that probation emerges from legislative, rather than common law, authority. See, e.g., Conrad v. Evridge, 315 S.W.3d 313, 316 (Ky. 2010) (explaining that the ability to “grant[] and revok[e] probation is not an inherent power in the courts, but is a power vested in the courts by statute”).

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the probation statute was amended multiple times. See, e.g., Ga. L. 1958, pp. 21–

22, § 9; Ga. L. 1960, pp. 857–58; Ga. L. 1966, pp. 440–41. In the 1990s, the

Georgia legislature introduced a number of additional probation conditions and

programs associated with specific charges. See Ga. L. 1991, p. 1751, § 1; Ga. L.

1993, p. 1543, § 4; Ga. L. 1995, p. 627, § 1; Ga. L. 1996, p. 1113, § 2. In 1991, the

statute was amended to introduce statutory regulation of the county and municipal

probation systems. O.C.G.A. §42-8-100 et seq. The amendment also explicitly

authorized contracts with private probation corporations, but restricted these

contracts to misdemeanor defendants. Id. § 42-8-100. The use of private probation

services for misdemeanant supervision significantly increased in the early 2000s,

when the legislature amended O.C.G.A. §17-10-3 to transition jurisdiction over

25,000 misdemeanor probationers from the Department of Corrections to

individual counties. See Whitworth v. State, 275 Ga. App. 790, 790 (Ga. Ct. App.

2005); Sarah Dolisca Bellacicco, Safe Haven No Longer: The Role of Georgia

Courts and Private Probation Companies in Sustaining a De Facto Debtors’

Prison System, 48 GA. L. REV. 227, 238 (2013). This burden on the counties led to

a dramatic increase in contracts with private probation companies. See Bellacicco,

48 GA. L. REV. at 238.

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2. Tolling Procedures in the Probation Context Have BeenEstablished by Statute Rather than Common Law.

The legislature included explicit statutory provisions for tolling probation

within its original framework for the statewide probation system and has not

hesitated to expand the availability of tolling authority. It first provided authority to

toll felony probation in 1958. Ga. L. 1958, p. 22. As with other elements of

Georgia’s probation system, the approach to tolling set out by statute has

developed over time through periodic legislative revision. After changing the

tolling procedures in 1984, see Ga L. 1984, p. 1317–18, and 1986, see Ga. L. 1986,

p. 492–93, the legislature in 1989 amended the tolling provision of § 42-8-36 to

allow tolling of a supervision term in cases where a probation supervisor had not

received a mandated check-in from his or her probationer. S. Taylor, Penal

Institutions: Prisons and Pardons/Paroles Reform, 6 GA. ST. U. L. REV. 287, 293

(1989).

Most recently, earlier this year, the Georgia legislature passed House Bill

310, again modifying the statute’s tolling provisions. See O.C.G.A. §§ 42-8-104,

105. (The statute’s expanded tolling provisions were enacted alongside more

sweeping reforms to the state’s private probation regime, discussed in more detail

infra.)

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3. The Authority Sentinel Relies on Underscores the Limits on Judicial Authority to Toll Privately Supervised Misdemeanor Probation.

Sentinel does not identify a single case that actually says that courts possess

inherent authority, absent statutory authorization, to toll privately supervised

misdemeanor probation sentences. Instead, Sentinel offers a puzzling argument in

support of its position. Seeking to support the proposition that the common law

authorizes courts to toll privately supervised misdemeanor probation, it relies

principally on cases emphasizing the limits on judicial power in the absence of

statutory authority.

For example, Sentinel emphasizes Neal v. State, 104 Ga. 509 (1898),

decided prior to the 1913 statutory authorization of probation, as a bedrock of

common law authority for courts to toll privately supervised misdemeanor

probation. See Appellee’s Br. at 8. In Neal, a trial judge had suspended a six-

month chain gang sentence, and then imposed the sentence a year later. Neal, 104

Ga. at 510. The prisoner contended that the judge had no authority to take such

action, and this Court agreed. Id. at 510–11. The Court reasoned, based on

separation of powers, that for a trial court to suspend the execution of a sentence

was “an unwarranted interference with the powers, duties, and functions of the

executive.” Id. at 511. The prisoner was ordered to serve his six-month sentence,

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despite the fact that it was past the date his sentence was originally set to expire,

because that was necessary to restore the state of affairs that the trial court’s

unauthorized action had disrupted. Id. at 519.

Sentinel relies on a string of cases that, like Neal, actually undercut the

proposition that courts enjoy common law authority to toll privately supervised

probation and, instead, highlight the limitations on judicial authority to modify

sentences beyond what the law authorizes. For example, in Norman v. Rehberg, 12

Ga. App. 698, 699 (1913) (cited in Appellee’s Br. at 7), the trial court suspended a

defendant’s sentence on a condition of good behavior. When the Georgia Court of

Appeals found that the trial court lacked jurisdiction to suspend the sentence, the

court ordered the defendant to serve the time originally ordered. Id. at 701-02.

Similarly, in Gordon v. Johnson (cited in Appellee’s Br. at 8), a trial court judge

was held to lack authority to suspend part of a fine that had been imposed on the

defendant as an alternative to detention and then subsequently order that the

defendant be rearrested for “bad behavior.” 126 Ga. at 585. See also Roberts v.

Wansley, 137 Ga. 439, 439 (1912) (cited in Appellee’s Br. at 8) (holding that

Georgia superior court judge has no authority to suspend “the execution of” a

criminal sentence); Wall v. Jones, 135 Ga. 425 (1910) (cited in Appellee’s Br. at 8)

(same); O’Dwyer v. Kelly, 133 Ga. 824, 824 (1910) (cited in Appellee’s Br. at 8)

(trial court held to be “without jurisdiction to suspend the sentences”). These

13

decisions all rested on the limits of the trial court’s authority. They hardly support

the premise that the common law authorized trial courts to modify a term of

probation through tolling.

Finally, Sentinel also cites two cases interpreting the 1913 probation law, see

Appellee’s Br. at 8 (citing Shamblin v. Penn, 148 Ga. 592 (1918) and Roberts v.

Lowry, 160 Ga. 494 (1925)), but these cases reaffirm the principle that probation in

Georgia is governed by statute. See Plunkett v. Miller, 161 Ga. 466 (1925) (holding

that the method of probation revocation prescribed in the 1913 Act is “exclusive,

and cannot be dispensed with by provision in original sentence that probation shall

be ipso facto revoked by failure to observe prescribed rules”). Shamblin simply

reflects this Court’s efforts to apply the governing statute: the Court ruled that the

trial court “had authority under the [1913] act to revoke its leave” of probation

where a probationer was sentenced to an eight-month term of probation, became a

fugitive, and then had his probation revoked a year later. 148 Ga. at 593 (emphasis

added).2 Sentinel’s reliance on Roberts is even more unpersuasive. In Roberts, a

defendant received an eight month jail sentence; 35 days later she was released and

2 The Court in Shamblin applied a different statute than exists today. That statute provided that “[i]n case of failure to meet any of these requirements, and at any time prior to the final disposition of the case of any probationer in the custody of a probation officer, the officer may bring him without warrant before the court or the court may issue a warrant directing that he be arrested and brought before it.” Ga. L. 1913, pp. 112–13, §4 (emphasis added).

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sentenced to what appears to be an indefinite term of probation conditioned on her

leaving Georgia and living with her father in Alabama;3 after absconding and being

caught seven months after the imposition of her original eight-month jail term, she

was ordered to serve the rest of that sentence. 160 Ga. at 494. The trial court’s

action – revoking a term of indefinite probation and reinstating a jail sentence

before its original term had expired – sheds little light on the questions presented

here. Sentinel certainly fails to explain what it would have meant for the court in

Roberts to have tolled an indefinite term of probation.

B. Privately Supervised Misdemeanor Probation Is a Modern Invention that Has Been Addressed by the Legislature but Not the Common Law.

1. Privately Supervised Misdemeanor Probation Is Susceptible to Abuse by Private Companies Incentivized by Debt-Collection, not Law Enforcement or Rehabilitation.

Private probation is a thoroughly modern invention. “[T]he supervision of

probation is a function historically performed by state probation officers.” Sentinel

Offender Svcs., LLC v. Glover, 296 Ga. 315, 325 (2015). The business practices of

private probation companies are especially relevant to the questions certified in this

case, because those practices often incentivize private probation companies to

pursue probationers well past the term of supervision or to extend the terms of

3 Indeed, the Chief Justice, writing in concurrence, characterized the ostensible probation as “an attempted banishment to Alabama.” Roberts, 160 Ga. at 497(Russell, C.J., concurring).

15

supervision as long as possible, including through the use of tolling. A Georgia

Department of Audits and Accounting report issued last year described some of

these practices. See Georgia Dep’t of Audits and Accounts, Performance Audit

Division, Misdemeanor Probation Operations, Report No. 12-06, April 2014

(hereinafter “Misdemeanor Probation Operations”) [attached hereto as Ex. A]. The

audit revealed that five different probation companies had forced probationers to

continue complying with onerous requirements after their probation terms had

ended. Id. at 27. In one case, a probationer was forced to continue reporting to his

probation officer for eleven months after his probation had expired. During this

period, he reported 34 times and paid more than $1,500 to the company. Id.

Another company’s financial reports listed a category of probationers who were

“expired, but paying,” indicating that the company had a classification for

probationers who were required to continue paying supervision fees without the

approval or oversight of the courts. Id. For reasons described in greater detail

below, these kinds of abuses are not random – they grow naturally out of the

business model used by private probation companies in Georgia.

Because privately supervised misdemeanor probation is new, these

distinctive risks have emerged only in recent years. Even if common law principles

addressed the contours of traditional probation, the common law certainly did not

contemplate the abuses that flow from privately supervised misdemeanor

16

probation, nor did it provide the regulatory responses needed to ameliorate those

abuses.

a. The Offender-Funded Model

Private probation is starkly different from traditional state-run probation. In

Georgia, private probation is based on an “offender-funded” model, where private

probation companies pass the costs of probation on to the probationers they

supervise while charging the county nothing. See Human Rights Watch, Profiting

from Probation: America’s “Offender-Funded” Probation Industry, at 15 (2014)

(hereinafter HRW Report) [attached hereto as Ex. B]; see also Br. of Amici,

William Stephen Carter, et al., Ex. A at 1(Agreement to Provide Probation

Services to the Municipal Court of Brunswick Georgia). This model incentivizes

companies to keep people on probation longer, allocate probationers’ payments

toward paying off probation fees before the underlying court-imposed fines, and

avoid determining the indigency of probationers, because all of those practices

create greater profits. HRW Report at 3, 42, 51.

In Georgia, the offender-funded system is especially problematic because it

places the largest burdens on those who are least able to pay. One of the most

common reasons for putting a misdemeanor offender on private probation in

Georgia is because that individual is unable to pay a fine that is levied at the time

of sentencing. See HRW Report at 25. This practice is called “pay-only” probation

17

because the only reason the court imposes an ongoing term of supervision is to

ensure that the probationer pays off court-imposed fees and fines. Id. These

offenders would not have been placed on probation if they could afford the fine

and they are not being sentenced to probation for rehabilitative purposes or to

protect public safety. Id.; Bellacicco, supra, at 240. The combination of pay-only

probation with the high monthly fees charged by private probation companies

makes it so that poor probationers – only placed on pay-only probation due to an

inability to pay in the first place – end up paying significantly more than offenders

who can afford to pay the full fine levied at the time of sentencing. HRW Report at

28.

b. Incentives to Maximize the Period of Supervision

Private probation companies in Georgia are incentivized to keep

probationers under their supervision for as long as possible. This can have a direct

impact on how long a probationer is subject to supervision. As described in

testimony submitted in connection with one of the lawsuits that was consolidated

into the Glover case, Sentinel employees routinely request that defendants serve

their probation sentences consecutively, rather than concurrently, in order to

maximize the amount of time that a defendant spends on probation. Tr. of Record

at 72–73, Harrelson v. Jones, No. 08-RCHM-00006 (Richmond Cty .Sup. Ct. Dec.

2, 2008) (“We’re just requesting that the Court run the cases consecutive, and that

18

is just to allow the probationer more time to pay the fine. . . . [O]n those sentences

where individuals … are running concurrent, they just don’t have the financial

means to be able to pay high monthly payments.”) (testimony of Crystal Ann

Paige, Area Manager, Sentinel Offender Services) [attached hereto as Ex. C].

The probation officers may meet regularly with the probationers that they

oversee, but such meetings are often a site for intimidation, threats, and coercion

on the part of the probation officer. HRW Report at 46. Indeed, private probation

companies possess an extraordinary debt-collection tool: they can ask a judge to

issue a warrant when probationers fail to make the payments that are required of

them. See HRW Report at 1. Sometimes, through issuing warrants, probation

companies are able to coerce families and friends to pay for the release of their

loved ones. HRW Report at 52.

Indeed, the Performance Audit Division report found that inducing payment

through the issuance of arrest warrants was a common tactic. The report found that

private probation companies had requested that courts issue warrants for almost a

third of the probationers in their sample, and many of the warrants were requested

based on payment violations. Misdemeanor Probation Operations at 28. The

Division’s “review of case notes and warrant requests found several instances in

which providers appeared to improperly use warrants or the threat of arrest to

compel payments.” Id. In one case, a probationer was actively reporting but the

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probation officer filled out a warrant request stating “‘all attempts to locate the

subject have failed.’” Id. The probation company did not give the warrant to law

enforcement officers so it could be served, but rather kept the warrant in the

probationer’s file and only sought to have it dismissed when the probationer made

a payment. Id.

Probation companies are also incentivized to allocate money they receive in

such a way that probationers will not be able to pay off their debt to the court

before they pay what they owe to the private probation company. See HRW Report

at 51. This problem is even more severe when probationers are only able to make a

partial payment, because much of that payment may go to the probation company,

allowing the probationer to make little or no progress toward resolving her court-

imposed debt. See Southern Center For Human Rights, Profiting from the Poor: A

Report on Predatory Probation Companies in Georgia, 6 (July 2008);4 Bellacicco,

supra, at 240 n.72 (describing how one Georgia misdemeanor probationer paid

$500 of her initial fine, but 40% of that payment was taken by Sentinel to cover its

fees); see also Compl., Rodriguez et al. v. Providence Community Corrections,

Inc., No. 3:15-cv-01048 (M. D. Tenn., Oct. 1, 2015), at ¶ 98 (hereinafter Rodriguez

Complaint) (alleging that Ms. Rodriguez had paid $516, but only $66 of the money

that she had paid had been remitted to the court, while $450 had been kept by the

4 This report is available at https://www.schr.org/files/profit_from_poor.pdf.

20

probation company) [attached hereto as Ex. D]. Even in cases where probationers

are successfully making payments, probation companies have an incentive to

allocate monthly payments in such a way that the court debt is not discharged until

the private probation company is fully paid. See HRW Report at 51. This practice

naturally extends the time needed for probationers to discharge their court-ordered

fees and fines.

For similar reasons, it is in the interest of private probation companies to

avoid making determinations about the indigency of the offenders that they

supervise and to avoid informing the offenders of alternatives to payment that may

exist, like community service. If a private probation company permits probationers

to claim that indigency prevents them from having their probation revoked based

on non-payment of court debt, then it cannot threaten probationers with

incarceration or further punishment, because any failure to pay the amount owed is

not willful. See Bearden v. Georgia, 461 U.S. 660 (1983). Private probation

companies thus are incentivized to forego making any type of indigence

determination because they are better off getting some portion of the fee that is

owed, even if they cannot get it all. See HRW Report at 38. Similarly, private

probation companies do not receive payments when indigent offenders convert

their fines to community service, so they are incentivized not to inform

21

probationers that community service is an option if they think that they may still be

able to extract some money from the probationer or his or her family. Id. at 40.

The case of Adel Edwards provides a particularly poignant illustration of

these dynamics. Mr. Edwards is a 54-year-old resident of Pelham, Georgia with an

intellectual disability who received a citation for burning leaves in his yard without

a permit. See Complaint, Edwards, et al. v. Red Hills Community Probation

Company, LLC, et al., No. 1:15-cv-00067 (M. D. Ga. Apr. 10, 2015), at ¶ 20,

(hereinafter Edwards Complaint) [attached hereto as Ex. E]. As alleged in his

complaint filed in federal district court, Mr. Edwards was sentenced to pay-only

probation by the Pelham Municipal Court because he was unable to pay a $500

fine on the day of his sentencing. Id. at ¶ 59. He was placed under the supervision

of Red Hills Community Probation (RHCP), a private probation company that

calculated, based on the 12 month term of pay-only probation, that Mr. Edwards

would end up owing $1,028, with $528 allocated toward his supervision fees. Id. at

¶ 60-61. Mr. Edwards was also required to make a payment of $250 before he

could be released, which did not happen for several days until a friend was able to

come up with the money. Id. at ¶ 62, 68. Mr. Edwards was unable to keep up with

these payments and was continually subjected to threats of incarceration by his

probation officer. Id. at ¶ 69. Perhaps most disturbingly, Mr. Edwards continued to

be contacted by RHCP and instructed to pay after his term of probation had

22

expired. Id. at ¶ 70. Mr. Edwards made multiple small payments to RHCP, at the

encouragement of his probation officer, in the seven months after his probation had

ended. Id. at ¶ 71.

2. House Bill 310 Reflects the Importance of Balancing Authority to Toll Privately Supervised Misdemeanor Probation with Necessary Procedural Safeguards.

The perverse incentives unique to the offender-funded model of private

probation implicate significant due process concerns. In March of 2015, the

Georgia legislature enacted House Bill 310, which authorized private probation

companies to toll probationers’ sentences for failure to report to court hearings or

to probation officers. See O.C.G.A. § 42-8-105(b)(1). While House Bill 310

expanded the authority of courts to toll privately supervised misdemeanor

probation, it also limited the authority of courts and private probation companies

by imposing important safeguards to protect the due process rights of probationers.

For probationers supervised through pay-only probation, House Bill 310

caps the use of supervision fees “so as not to exceed three months of ordinary

probation supervision fees.” Id. § 42-8-103(b). Under this provision, low-income

probationers may only have supervision fees accrue over three months, a

significant limitation on the overall expenses that may be imposed on misdemeanor

probationers. This is a particularly important limitation, as individuals supervised

23

through pay-only probation are subject to these additional supervision fees only

because of their lack of ability to pay their fines in the first place. This safeguard is

essential to combat the companies’ financial incentives to toll such sentences when

doing so would otherwise be improper or where other alternatives would be more

appropriate.

House Bill 310 also imposes transparency requirements that provide both the

public as well as individual probationers with access to records of private

probation companies. The statute mandates that private companies generate

quarterly reports summarizing “the amount of fees collected and the nature of such

fees,” as well as the “number of community service hours performed by

probationers under supervision,” which will be “open to inspection upon the

request of the affected county, municipality, consolidated government, court.”

O.C.G.A. § 42-8-108(a). Additionally, the statute mandates the Department of

Community Supervision to “collect and analyze data and performance outcomes

relevant to the level and type of treatment given to a probationer or parolee and the

outcome of the treatment on his or her recidivism.” Id. § 42-3-2 (g)(2).

The statute also mandates that probationers must be provided with a written

receipt and balance statement for every payment. Id. § 42-8-109.2(b)(1)(A). It

entitles a probationer to receive a “copy of correspondence, payment records, and

reporting history from his or her probation file” one time at no cost and then be

24

required to pay fees for subsequent requests. Id. § 42-8-109.2(b)(1)(B). These

transparency provisions are crucial for probationers seeking to contest a tolling

order or probation violation.

To avoid saddling indigent probationers with substantial fees and fines,

House Bill 310 outlines a community service option for probation, see id. § 42-3-

52(a), and provides that “[t]he court shall waive, modify, or convert fines, statutory

surcharges, probation supervision fees, and any other moneys assessed by the court

or a provider of probation services upon a determination by the court prior to or

subsequent to sentencing that a defendant has a significant financial hardship or

inability to pay or that there are any other extenuating factors which prohibit

payment or collection.” Id. § 42-8-102(e)(2). The statute identifies a number of

factors for the courts and probation companies to consider in order to determine a

probationer’s indigence and payment responsibilities, which include probationers’

external financial obligations, id. § 42-8-102(c)(3), in addition to probationers’

earnings and other income, id. § 42-8-102(c)(1). Under the statute, the court may

take the period of time during which the probation order will be in effect to

determine a probationer’s financial responsibilities as a condition of probation. Id.

§ 42-8-102(c)(4).

Alongside these substantial procedural safeguards, House Bill 310 provided

courts with authority to toll privately supervised sentences of probation, so long as

25

a detailed set of conditions are met. See id. § 42-8-105(b)(1). First, the probationer

must have failed to report “on at least two occasions.” Id. at § 42-8-105(b)(1)(A).

Second, the officer must have attempted to contact the probationer “at least two

times by telephone or email.” Id. at § 42-8-105(b)(1)(B). Third, the officer must

have checked jail rosters and determined that the probationer was not incarcerated.

Id. at § 42-8-105(b)(1)(C). Fourth, the officer must have sent the probationer “a

letter by first-class mail . . . advising the probationer that the officer will seek a

tolling order if the probationer does not report to such officer . . . within ten days of

the date on which the letter was mailed.” Id. at § 42-8-105(b)(1)(D). Fifth, the

probationer must in fact not have reported within those ten days. Id. at § 42-8-

105(b)(1)(E). These provisions serve to ensure that probationers are given

sufficient notice of their obligations and to prevent probationers’ sentences from

being tolled improperly.

This is the kind of granular rule-making that is quintessentially the province

of legislation, not the common law. To rule in favor of Sentinel would undermine

this legislative scheme by exposing a group of probationers to expanded tolling

authority without providing the procedural protections the legislature deemed

appropriate to accompany such authority. The legislature’s tailored approach to

address these concerns underscores the inapplicability of common law principles in

26

this context. In grappling with a series of harms and abuses distinctly tied to

private probation, the legislature has crafted complex solutions.

Rather than engage with the careful policymaking in which the legislature

has engaged, Sentinel devotes the bulk of its brief to a prospective policy concern:

the risk that probationers will abscond during the term of probation. Indeed,

Sentinel relies heavily on cases involving fugitives, see Appellee Br. at 13–14,

none of which answer the questions before this Court. Rather, these cases involve

individuals who were under federal supervised release, see United States v.

Buchanan, 638 F.3d 448 (4th Cir. 2011); United States v. Watson, 633 F.3d 929

(9th Cir. 2011); United States v. Murguia–Oliveros, 421 F.3d 951 (9th Cir. 2005);

United States v. Crane, 979 F.2d 687 (9th Cir. 1992);5 on federal parole, see

Anderson v. Corall, 263 U.S. 193 (1923); Henrique v. U.S. Marshal, 476 F. Supp.

5 Moreover, in citing only Ninth and Fourth Circuit cases regarding supervised release, see Appellee Br. at 13–14, Sentinel fails to recognize that there is a circuit split on the question. The First Circuit has “reject[ed] the government’s view that a supervised release term [was] tolled while an offender is in fugitive status.” United States v. Hernandez-Ferrer, 599 F.3d 63, 70 (1st Cir. 2010). Examining the full statutory scheme, the court declined to ratify a “judicially contrived tolling mechanism.” Id. at 69. Instead, the court deferred to Congress to define the court’s authority with respect to tolling terms of supervised release. Applying the expressio unius est exclusio alterius canon of statutory interpretation, the court declined to derive a basis for tolling that was not delineated in the statute where the statute did specifically provide for tolling under other circumstances. Id. at 67. The one federal case cited by Sentinel addressing federal probation, United States v. Grant, 727 F.3d 928 (9th Cir. 2013), simply extends the Ninth Circuit’s approach to the supervised release statute – the approach rejected by the First Circuit.

27

618 (N.D. Cal. 1979); or who had escaped from prison, see United States v. Luck,

664 F.2d 311 (D.C. Cir. 1981). These federal cases obviously do not address the

question whether tolling is permissible under Georgia common law in the context

of misdemeanor private probation.

Whatever force these concerns may have as a policy argument, none of the

cases Sentinel cites supports the proposition that the legal authority exists absent

statutory authorization. Of course, the legislature evidently found those policy

concerns persuasive: as House Bill 310 demonstrates, the legislature is well

equipped to provide tolling authority where it perceives a need. That kind of

legislative action is a far better response to Sentinel’s policy argument than

straining to perceive a basis for tolling authority in the common law. The

legislature’s approach distinguishes between simply failing to comply and

absconding. As described above, O.C.G.A. § 42-8-105 sets out a series of

preconditions to tolling that help ensure that a probationer has received notice of

her obligations and that the probation supervisor has made meaningful efforts to

ensure compliance. A probationer who does not respond to such efforts may at

least plausibly be understood to have absconded. The legislature’s action thus

deflates Sentinel’s warnings (see Appellee’s Br. at 12–14) that ruling against it

would encourage probationers to strategically abscond and wait out their term of

probation.

28

On the other hand, ruling in Sentinel’s favor presents a very real risk that

probationers who never absconded, and whose terms of probation have expired,

will unfairly face continued probation supervision or other criminal sanctions.

Retroactively applying a putative common law tolling authority to individuals

placed on probation before the enactment of House Bill 310 would allow private

probation companies to seek tolling without satisfying the procedural preconditions

imposed by House Bill 310. Indeed, individuals impacted by such a ruling would

be doubly disadvantaged: not only would they not enjoy the new procedural

protections surrounding tolling, but their entire experience under privately

supervised misdemeanor probation will have been without the protections of the

new law’s other safeguards, such as caps on pay-only probation, more meaningful

ability-to-pay hearings, and alternative options for people too poor to pay fees and

fines.

II. EVEN IF GEORGIA COMMON LAW PERMITTED TOLLING OF PRIVATELY SUPERVISED MISDEMEANOR PROBATION, IT WOULD BE ABROGATED BY THE STATE-WIDE PROBATION ACT

When legislating against the backdrop of an established common law

precept, clear “legislative direction” to move the law along a different course will

overcome the standard presumption of adherence to common law. Johnson v.

Rogers, 297 Ga. 413, 416 (2015). The legislature is assumed to act with this

29

understanding. Delta Airlines, Inc. v. Townsend, 279 Ga. 511, 512 (2005). Here,

the State-Wide Probation Act and its amendments provide sufficient legislative

direction to abrogate any common law principle that might be interpreted as

allowing tolling of privately supervised misdemeanor probation.

The legislature does not need to declare, “this is intended to preempt the

common law.” Couch v. Red Roof Inns, Inc., 291 Ga. 359, 364 (2012). Rather “as

long as legislation does not violate the Constitution, when the legislature says

something clearly – or even just implies it – statutes trump cases.” Id. at 382.

Statutes in derogation of the common law are strictly construed based on their text

and plain meaning. Delta Airlines, Inc. 279 Ga. at 512. In understanding statutory

text and terminology, “[t]he common and customary usages of the words are

important, but so is their context.” Chan v. Ellis, 296 Ga. 838, 839 (2015)

(citations omitted).

The State-Wide Probation Act abrogated any possible common law authority

for tolling privately supervised misdemeanor probation by setting out a

comprehensive system for the administration of probation. It sets out different

approaches for felony and misdemeanor probation and defines the circumstances

under which counties may engage private companies to supervise probationers.

Even prior to House Bill 310, the statute pervasively regulated the institution of

private probation. It established an advisory council to promulgate rules,

30

regulations, and standards for the operation of privately supervised misdemeanor

probation, O.C.G.A. § 42-8-106; set certain minimum criteria for the professional

standards of private probation officers, id. at § 42-8-107(a); and mandated

minimum requirements for the terms of any contract entered into between a court

and a private probation company, id. at § 42-8-107(b) to (c).

Indeed, the very authorization of private probation abrogated any potential

common law principle that may have existed. By layering a novel system of

privately supervised misdemeanor probation on top of the traditional approach to

probation, the legislature abrogated any residual common law principle that might

otherwise have applied to probation.

Respectfully submitted, this 1st day of December, 2015.

/s/ Lauren Sudeall LucasLauren Sudeall Lucas, Esq.6

Georgia State Bar No. 149882Counsel for Amici Larry Schwartztol, Carol Steiker, and Alex Whiting

Georgia State University College of Law85 Park Place NE, Room 222Atlanta, GA 30303404.413.9258

6 Harvard Law students Rebecca Harris, Jake Newman, Taylor Poor, and Juliana Ratner, and Criminal Justice Program of Study, Research & Advocacy post-graduate fellow Anna Kastner, contributed to the legal research and drafting of this brief.

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a copy of the within and

foregoing BRIEF OF AMICI upon all parties to this matter by depositing a true

copy of same in the U.S. Mail, proper postage prepaid, addressed to counsel of

record as follows:

James A. Yancey, Jr., Esq.704 G Street

Brunswick, Georgia 31520-6749

Frederick Owen Ferrand, Esq.John W. Campbell, Esq.Ashley D. Alfonso, Esq.

SWIFT, CURRIE, McGHEE & HIERS, LLPSuite 300, The Peachtree

1355 Peachtree Street, N.E.Atlanta, Georgia 30309-3231

Respectfully submitted, this 1st day of December 2015.

/s/ Lauren Sudeall LucasLauren Sudeall Lucas, Esq.Georgia State Bar No. 149882Counsel for Amici Larry Schwartztol, Carol Steiker, and Alex Whiting

Georgia State University College of Law85 Park Place NE, Room 222Atlanta, GA 30303404.413.9258