In May 2017, when 47-year-old Oklahoma City resident Jeremy Brown showed up in court for a drunk driving offense, he was given three options: go to jail, pay 10 percent of his $5,000 bail, or enter a pretrial services program that would also allow him to go home with certain stipulations, such as weekly check-ins.
He requested to leave with an “oral recognizance bond,” a promise that he would return to court. But even though it wasn’t a violent crime, the judge demanded more in return for Brown’s release.
Brown chose the pretrial services program because he couldn’t afford bail, and didn’t want to spend more time in jail. But there was an important requirement he didn’t consider.
“I didn’t read all the paperwork,” he said. “I didn’t know I would be charged $10 a day.”
From May until August, he struggled to pay that fee and checked in once a week with Cleveland County Pretrial Services’s office in Norman, Okla., roughly an hour from his home. The weekly visits took more than three hours every week with travel, preventing him from keeping a full-time job.
Brown ended up leaving the program when he was arrested for another DUI and an assault in August. But his inability to pay for his services became an additional strike against him, he said. By the end of his supervision, he owed the for-profit company $760, which he compared to a car payment every month. He didn’t have a job at the time, and he wasn’t able to pay.
“I think it’s a racket,” Brown said. “Every little thing they do, they charge you for it.”
Cleveland County Pretrial Services is one of a growing number of private for-profit corporations entering the pretrial services industry in jurisdictions across the country, charging people for their own community-based supervision. This particular company has contracted with Cleveland County, Oklahoma, since 2008, charging people anywhere from $40 to $300 per month (plus occasionally an $8 daily fee for electronic monitoring) for different levels of supervision as they await trial.
To many counties, the private companies offer a way to save money and reduce jail populations. But advocates say that these programs are creating two tiers of justice—those who can afford bail and get released, and those who have to stay jailed or pay for their own supervision.
Roughly 80 percent of criminal defendants are considered poor, according to the Oklahoma Policy Institute. After a bail reform package failed in the Oklahoma legislature this year, activists began pushing for greater transparency about companies profiting off the poor at the county level, including Cleveland County Pretrial Services.
“This is really a poverty trap,” said Joanna Weiss, co-director of the Fines and Fees Justice Center. “If you can’t afford bail, we’re already dealing with people who are the very lowest end of the economic spectrum, and then we’re charging all these fees. That’s a massive problem.”
Under the latest contract between Cleveland County and Cleveland County Pretrial Services, obtained by The Appeal under the Oklahoma Open Records Act, the county is paying up to $365,000 a year for the company to run the pretrial program, a mental health pretrial program, and a community service probation program. According to Cleveland County Pretrial Services, the provisions of the pretrial release program can include mandatory weekly reporting, electronic monitoring, drug testing, and case management, among other things.
Assistant District Attorney Thomas Sasser told The Appeal that a representative from Cleveland County Pretrial Services attends all arraignments and then uses a risk assessment to determine the level of supervision needed. There are certain violent crimes that disqualify people from pretrial release, but if a crime qualifies, prosecutors consider criminal history and other factors to determine whether they can be assigned to pretrial release and at what level (0 through 3). A judge then makes the final determination whether they can be released.
Julia Curry, owner of Cleveland County Pretrial Services, told The Appeal there are 68 people currently in the program, with the majority required to pay $10 per day. Requiring someone to pay the extra $8 per day for electronic monitoring is rare; there are only three people paying for that service right now.
Curry said her program, which she describes as a way for the county to save money, doesn’t penalize people who can’t pay. If a payment is missed, participants can stay in the program unless a judge orders their supervision to be revoked.
“If you’re not able to pay it, and you’re doing everything you’re supposed to do, there’s no penalty,” she said. “We don’t report to a credit agency. We’re not here to try to set everyone up. We’re here to make everyone successful so that they can get through this process.”
Still, she conceded that a judge could always revoke pretrial release and send someone back to jail for missed payments. Brown said that while he was on pretrial supervision, that threat loomed.
They could “put you back in jail if you don’t pay your court costs,” he said.
Sasser said he does not consider ability to pay when assigning a defendant to pretrial release, but said that in his 18 months in the DA’s office, he has never seen a judge revoke release or sanction anyone for inability to pay. The only sanctions he has seen are if someone violates the requirements, like drug testing or weekly visits, and are forced to appear before a judge.
In that case, he said, sanctions could include writing a paper, doing community service, or spending time in jail, depending on the violation, he said.
Sanctions and Civil Rights
The role of private companies in the legal system, whether they’re running prisons or supervision services, has garnered increased attention in recent years from civil rights and advocacy groups.
A March 2019 report from the National Consumer Law Center, “Commercialized (In)Justice,” examined private players in the legal system and found that in pretrial services, companies take advantage of their ability to threaten clients with criminal consequences. At least 10 states allow counties and municipalities to contract with private companies to administer their probation systems for misdemeanor and lower offenses, the report found, and poor people of color are most likely to bear the costs.
In Alabama, the Southern Poverty Law Center has pushed back and successfully sued to get a city to cancel its contract with a private probation company. Yet private companies continue to function in jurisdictions across the country, including many counties in Oklahoma.
Oklahoma has the country’s highest incarceration rate and, like many states, jails large numbers of people for their inability to pay bail. According to Open Justice Oklahoma, the median jail stay in Cleveland County for people accused of nonviolent offenses who didn’t post bond in fiscal year 2018 was 62.5 days for a felony and 33 days for a misdemeanor.
Elsewhere in Oklahoma, median jail stays are even longer.
For that reason, local criminal justice experts like Ryan Gentzler, director of Open Justice Oklahoma, are wary of criticizing any program that will help reduce jail populations, even if they impose steep fees.
“Since we do have the highest incarceration in the world, we can’t worry right now about doing things perfectly,” Gentzler told The Appeal. “Any progress toward getting more community supervision options … I would definitely view that as a positive sign that we’re starting to make some investments in alternatives to prison, because that’s just desperately needed here.”
But alternatives exist.
In nearby Rogers County, Oklahoma, District Judge Sheila Condren issued an administrative order in 2017 to create a non-monetary release program for nonviolent offenders to be released on their own recognizance. She enacted the program in response to a report from the Vera Institute for Justice which found significant overcrowding in the county jail.
Though the program is in danger now due to personnel shortages, it helped to increase nonmonetary release in the country from just 3.8 percent of misdemeanor defendants in December 2016 to nearly 60 percent over the same time period the following year, according to Oklahoma Watch. The population of the jail also decreased to roughly 170 people from more than 300.
This year, Oklahoma’s legislature came close to passing Senate Bill 252, which would have required most people accused of nonviolent crimes to be released on their own recognizance. The bill ultimately failed by six votes because of opposition from law enforcement, prosecutors, and the bail bond industry, but it is already scheduled to be considered next year.
Allies could come from unlikely places. Despite her role leading a company that profits off people who can’t pay bail, Curry backed the legislation. “I definitely support any bill that addresses unreasonable and excessive bail,” she said.
Private companies in Cleveland County are involved later in the legal process as well. After cases are adjudicated, people are often assigned to a different private company for their post-conviction supervision. Assistant DA Sasser said he likes to think of the pretrial release as a “trial period” or “baby step” to show that “yes, I can be a productive member of society and complete whatever performance requirements are required by the judge.”
After Brown’s case was adjudicated, he said he was put on probation and “lo and behold, the same company is doing probation.”
Brown was ordered to a probation program run by Oklahoma Court Services, Cleveland County Pretrial Services’ sister company, which shares an owner. Through that program, he was subjected to $25 drug tests even though his original charge had nothing to do with drugs, and he racked up even more debt.
“I just recently got out from under them,” he said, explaining that he is hopeful that he will be released from probation early for good behavior.
Yet his ties to the legal system aren’t over. Because he’s unable to pay all of his fees, he said he plans to appear before a judge to dispute them. With all the requirements of the program and his arrests, he said he couldn’t hold a full-time job and lost his house. Sasser said that in situations like Brown’s, a judge could put someone on a payment plan instead.
But Brown said he still questions why he has to pay the fees at all and why private companies are being entrusted with public services.
“I think it’s a big mistake,” he said. “The [pretrial release] program sets people up for failure.”
Kira Lerner, a writer for The Appeal, is a 2019 John Jay/Arnold Justice Reporting Fellow. This story was done as part of her fellowship project. The full version is available here.