October 25, 2019 Public Contract Law Journal

The Slow Death of a Government Contracting Model: “User-Funded” Contracts in Privatized Misdemeanor Probation Monitoring

by Megan Grindstaff

Megan Grindstaff (mgrindstaff@law.gwu.edu) is a student staff member of the Public Contract Law Journal and a 2019 J.D. candidate at The George Washington University Law School. She would like to thank Professor Kyle Chadwick for his insight and advice during this Note writing process.

I.  Introduction

On September 18, 2017, the U.S. District Court for the Middle District of Tennessee issued a settlement agreement awarding $14.3 million to Cindy Rodriguez and the plaintiffs who joined in her class action lawsuit challenging the probation practices in Rutherford County, Tennessee.Perhaps more important than the monetary award is the injunction that accompanies it. As a result of the injunction, Ms. Rodriguez and thousands of probationers like her will no longer be forced to fund the conditions of their probation sentences.2 They will no longer pay out of their own pockets for court mandated drug tests, global positioning system (GPS) bracelets, or alcohol monitoring devices.3 They will no longer live in fear that any phone call or knock at the door could end in arrest, revocation of their probation, and imprisonment for failure to make those payments.4

In their suit, Ms. Rodriguez and her fellow class-action plaintiffs alleged that the probation practices in Rutherford County, Tennessee violated the U.S. Constitution, the Racketeer Influenced and Corrupt Organizations Act (RICO), and numerous Tennessee state statutes.5 Rutherford County is one of many U.S. counties and municipal jurisdictions that contracts out its probation monitoring services to a private company, in this case, Providence Community Corrections, Inc. (Providence).6 As was the case in Rutherford County, these contracts are often “user-funded,” meaning that the county or municipality pays absolutely nothing to the private probation companies for their services.7 Instead, companies like Providence profit from these contractual relationships by charging probationers for the terms of their probation sentences, including, but not limited to, the costs of court hearings, drug tests, and GPS monitoring, as well as fines for defaulting on these payments.8

Due, in part, to challenges like Ms. Rodriguez’s, the user-funded contracting model for privatized misdemeanor probation monitoring appears to be dying a slow death. Although it is logistically convenient and fiscally responsible for counties and municipalities, it creates perverse financial incentives for the private probation companies, which give way to predatory practices.9 This could create litigation liabilities for the jurisdictions who employ the practice, which, in the end, may prove to be costlier than funding misdemeanor probation internally. Even jurisdictions that can weather the storm of litigation still face the threat of sudden abolition of their monitoring practices through state-level legislation or judicial elections.10 Accordingly, counties and municipalities should end their current relationships with private probation companies, opting to manage the internalized cost by adopting probation reduction strategies. If a jurisdiction finds that the complete dissolution of user-funded contracts is not a viable option, it should incorporate an Organizational Conflict of Interest Clause into its user-funded contractual agreements to help shift potential legal liability to the companies.

Part II of this Note describes the history and contractual implementation of user-funded probation monitoring and contextualizes its use within the larger picture of mass incarceration in the United States. Part III analyzes the liabilities associated with this practice and shows how their ubiquity undermines stated goals — economic and logistic — of the participating jurisdictions. Finally, Part IV proposes two potential responses: a probation-reduction model and a liability mitigation measure.

II.  The User-Funded Contract Model

The user-funded contract model creates potential conflicts of interest for the probation monitoring company and contributes to a cycle of mass incarceration and government surveillance that disproportionately burden low-income communities and communities of color.11 The optics of this system have mobilized criminal justice advocates who call attention to the system’s predatory practices and advocate for its elimination.12

A. Mass Incarceration and the Evolution of Privatized Misdemeanor Probation

Among the estimated 6.7 million citizens entangled in the U.S. correctional system, an estimated 3.7 million of them are on probation, making probationers the largest group of citizens under correctional surveillance.13 Probation is a common sentence for misdemeanor offenders.14 Since offenses categorized as misdemeanors tend to be less serious crimes, probation is often seen as an appropriate alternative to full deprivation of liberty through incarceration.15 An estimated 41% of the probation population are misdemeanor offenders.16

In recent decades, the U.S. mass incarceration crisis spurred exponential, nation-wide growth in the number of incarcerated citizens, and the number of probationers also grew.17 In 2015, the DOJ’s Bureau of Justice Statistics reported an estimated 3.78 million U.S. citizens on probation.18 As the size of this group has multiplied, so has the cost of surveilling it.19 When a person is sentenced to probation, he or she is subjected to surveillance. For those transitioning from incarceration to probation, it is, in part, for the court to keep tabs on the probationer’s transition back into society.20 For those initially sentenced to probation, it is, in part, to ensure they do not reoffend.21 And for all probationers, surveillance serves to ensure that they will comply with the conditions or terms of their probation.22 Probation has strings attached. Probationers are required to check in with their probation officers, so that the probation officer can report back to the court regarding the probationer’s status.23 The probation officer has to be paid for that work. The sentences are often conditioned upon sobriety or limited geographic mobility.24 Those conditions are enforced through things like home breathalyzers or GPS bracelets.25 Operating those systems is costly, and jurisdictions that impose those conditions have to pay for them.26 The more probationers a jurisdiction has, the more it will cost to monitor them.

Since the vast majority of U.S. incarcerated citizens are housed in state prisons and local jails — as opposed to federal prisons — state criminal justice budgets have been significantly overburdened by the exponential growth of our incarcerated and surveilled citizenry.27 States have wide discretion to implement probation as they see fit, from sentence duration to funding source.28 In response to financial pressures, many states have cut funding for misdemeanor probation services from the budget in favor of using their limited funds to fully pay to fund the monitoring of the felony probation population, which tends to include offenders of more serious crimes.29 Consequently, in many jurisdictions, the burden to fund misdemeanor probation has recently fallen on counties and municipalities, many of which lack the financial resources to do so.30 In response, these counties and municipalities often turn to private probation companies, which promise ease of administration and no expenditure of funds, as a solution.31

It is estimated that at least ten states contract with private probation companies for their misdemeanor probation monitoring services.32 A precise knowledge of which states operate these systems and how is difficult to come by, because — like many criminal justice statistics — this information is self-reported on a volunteer basis.33 Because of the abuses and predatory practices to be discussed in Part II.B, it follows that some states may be reluctant to publicize their use of private probation companies. Furthermore, information about the revenue streams from probationers to the companies themselves are not subject to disclosure, because the companies are privately held.34 Therefore, the described scope of this issue is inherently an estimate, and likely a floor, rather than a ceiling.

B. User-Funded Contracts in Practice

Many counties and municipalities that contract out for probation monitoring services use a type of contract known as “user-funded” contracts or less delicately as “offender-funded” or more politically palatably as “tax dollar-free.”35 No matter the name assigned, in these contract schemes, the contracting jurisdiction pays nothing to the private company.36 Rather, the private company makes a profit by collecting fees and fines from the probationers themselves.37 There are two main categories of fees private probation companies charge probationers: supervision fees and probation services fees.38

Supervision fees are flat rates charged to a probationer by virtue of simply being on probation.39 These fees typically amount to $30 - 40 per month, and they apply to all probationers, including those being monitored pre-trial and pay only probationers.40 “Pay only” refers to probationers who were sentenced to probation for failure to pay a fine or fee, such as a parking ticket or an outstanding court cost.41 As soon as a “pay only” probationer settles his or her debt with the court, the probation sentence ends.42 However, supervision fees often exacerbate the original reasons for a probationer’s failure to pay his or her debt.43 As the probationer attempts to save up to pay off the original debt, the supervision fees continue to accumulate.44 The accumulation of debt and fees makes it less likely that a pay-only probationer will ever pay off his or her debts and be released from government supervision.45

Probation services fees are the cost of specific terms of a probationer’s sentence.46 These terms include periodic drug testing, alcohol-monitoring technology, GPS monitoring, and other court-assigned stipulations.47 These fees can easily (and regularly do) add up to thousands of dollars per year.48

When a probationer fails to pay his or her fines and fees, a private probation company has several avenues of recourse. First, the company can pursue the debt collection by threatening to incarcerate the probationer.49 If the probationer still fails to pay his or her outstanding fees, companies may attempt to collect the debt from the probationer’s family members.50 Many believe that these types of practices violate the personal privacy of probationers and strain relationships integral to their transition from the criminal justice system into the general population.51

Second, since compliance with the fines and fees associated with supervision is a condition of the probationer’s sentence, a private probation company may call the probationer back into court for nonpayment.52 The company probation officer and the probationer discuss potential consequences for violating the conditions of probation which include additional fines or fees, extension of the probation term, or revocation of probation entirely.53 Revocation of probation results in full incarceration.54 Pursuant to the U.S. Supreme Court decision in Bearden v. Georgia, a person can only be imprisoned for unpaid fines or fees if the court finds willful nonpayment.55 Courts administer a balancing test to determine if a probationer has “willfully” failed to pay outstanding costs.56 In using this balancing test, judges may consider a person’s ability to pay a car payment, own a cellphone, or pay child support when determining that a person could have paid the fines and fees but chose not to do so.57 In addition to the humiliation of a public accounting of one’s assets, these constructive tests of indigence put probationers in the unenviable position of choosing between loss of liberty through incarceration or deprivation of basic necessities of a first world society in the 21st century.58

Additionally, this system incentivizes probation officers to keep people on probation and in a cycle of surveillance in order to maximize profits.59 As is the case with general mass incarceration trends, the negative consequences of privatized misdemeanor probation disproportionately impact low-income communities and communities of color.60 The fines and fees integral to the user-funded contract model are most burdensome on those who cannot afford to pay them.61 The punishments for failure to pay create a cycle of government supervision from which escape is dependent on a person’s financial status.62 For the reasons discussed above, criminal justice advocates have recently targeted privatized misdemeanor probation systems in order to expose the legal and logistic liabilities for the jurisdictions that utilize “user-funded” contracts.63

III.  Liabilities Inherent to the Use of User-Funded Contracting Model

Counties and municipalities enter into user-funded contracts with private probation companies for their ease of administration and low overhead cost.64 However, pressure to discontinue use of user-funded contracts in the form of litigation challenges, state-level legislation, and local judicial actions may threaten those purported selling points and make the system either impractical or impossible to maintain in the years to come.

In recent years, privatized probation systems predicated on user-funded contracts have been widely criticized.65 As criminal justice has become a sexier topic of national politics, efforts for reform have garnered support from the congressional left, congressional right, and even the Trump White House.66 Although many attempts at federal legislation on the issues writ-large have stalled, activists have enjoyed success in fighting private probation systems at the state and local levels by bringing impact litigation, passing state-level legislation, and targeting judicial elections.67 The following section will address the way each of these three avenues of challenge is killing the user-funded private probation model by disrupting its purported goals of logistic ease and financial benefit.

A.  Financial Liability: Litigation Challenges

Since Cindy Rodriguez’s 2015 class action lawsuit in Rutherford County, Tennessee, multiple jurisdictions have experienced similar challenges to their user-funded contracting systems.68 These lawsuits are brought by impact litigation organizations that partner with local law firms, and they do not show signs of slowing down anytime soon.69

As illustrated by Ms. Rodriguez’s case, even cases that settle before progressing to trial can cost millions.70 Jurisdictions that employ private prison systems open themselves up to frequent litigation because of the various legal issues and implications surrounding private prison systems.71 Given that counties and municipalities often enter into user-funded contractual relationships with private companies because they lack the resources to administer their own probation monitoring, it is unlikely that these same jurisdictions will be able to incur the cost of litigation should their user-funded practices be challenged in court. If that occurs, the fiscal impetus for user-funded contracts may be rendered moot, and the system may collapse under the financial weight of defending against lawsuits.

1.  Constitutional Challenges

Parties bringing suit against private probation companies and the jurisdictions that contract with them can pursue constitutional claims under the Sixth, Eighth, or Fourteenth Amendments. A party mounting a Sixth Amendment argument can typically claim that a probation system that incarcerates probationers for failure to pay without proper determination of willfulness violates the probationers’ right to due process.72 In an Eighth Amendment claim, probationers can argue that the exponential compounding of probation-related fees violates the prohibition against excessive fines.73 Finally, parties may invoke the Fourteenth Amendment for a constitutional claim in one or both of two ways: via the Due Process Clause and/ or via the Equal Protection Clause.74 First, probationers may argue that private misdemeanor probation monitoring violates the Due Process Clause by putting a company with financial interest in the case in a position to act as a neutral arbiter of the court. Second, probationers may argue that the system violates the Equal Protection Clause by punishing probationers according to their wealth status.

2.   Debtors’ Prison Challenges

Congress outlawed debtor’s prisons in 1833.75 Thus, litigating probationers can also bring claims against private probation companies alleging the creation of a modern-day debtors’ prison. In the seminal 1983 case Bearden v. Georgia, the Court clarified that a person may not be imprisoned for nonpayment of fines or fees unless said nonpayment is willful.76 Challenges to the way jurisdictions determine willful nonpayment — or neglect to do so at all — could result in courts striking down the methods as constituting a modern-day debtor’s prison in violation of Bearden.

3. RICO Challenges

The Racketeer Influences and Corrupt Organizations Act (RICO) also gives rise to potential avenues for impact litigation.77 These claims allege that the probation company extorts money from indigent probationers by threat of fines, probation extension, or probation revocation.78

B.  Implementation Liabilities

Even jurisdictions that are able to absorb the cost of litigation challenges may still, in coming years, be unable to continue implementing user-funded contracts with private probation monitoring companies. State-level legislation and local judicial action have the power to swiftly eliminate user-funded contracts. Immediate removal of these systems would put under-resourced jurisdictions in a (preventable) position to scramble for an alternate solution.

1.  State-Level Legislation

State-level legislation presents an additional area of logistic liability for jurisdictions implementing private probation systems. As discussed, the heart of this issue truly sits at the state level.79 As such, state legislators have immense power to affect the probation practices of jurisdictions within their borders.80 State-level legislation presents threats to the user-funded private probation system in three different ways: (1) by regulating the contracts between the courts and the probation companies, (2) by implementing procedural safeguards in the courts themselves, and (3) by formally defining a test for the Bearden v. Georgia standard.81

Through contract reform, state legislators could outlaw “user-funded” contracts entirely. In the alternate, state legislation could take a page from the federal government procurement system and mandate a responsibility assessment before counties and municipalities can enter into a contract with a private probation company.82

State legislators could also create statutory procedures for court proceedings that provide protection for probationers and defendants potentially facing probation sentences. This could include evidentiary hearings for alleged violation of probation terms or a right to counsel during non-payment hearings.83

According to the Supreme Court in Bearden v. Georgia, the standard for imprisoning a person for unpaid fines or fees is willful nonpayment.84 However, the Court has never defined this standard with specificity so lower courts have developed varying tests to determine if a person is truly unable or simply unwilling to pay.85 State legislation could set bright line parameters for what constitutes willful nonpayment or dictate a list of factors to be used in a balancing test.

A recently enacted Georgia law, designed to mitigate abuses of the probation system by private probation companies, includes both procedural protections86 and substantive regulations.87 In response, the state’s largest private probation company, Sentinel Offender Services (“Sentinel”), proposed a shift from user- funded contracts to a public/ private partnership, wherein the courts themselves would fund a flat rate supervision fee for each probation.88 When the Georgia courts declined the new arrangement, Sentinel pulled out of the market.89 House Bill 310’s adverse effects on the private probation model in Georgia could be duplicated in other jurisdictions if other states adopt similar legislation.

2.   Judicial Action

Like state-level legislation, judicial action has the power to end privatized misdemeanor probation as jurisdictions know it in one fell swoop. Local judges have significant control over how their courts fund and carry out probation supervision and discretion when probation issues arise.90 Judges have the authority to give consent to entering into or dissolving a contractual relationship with a private probation company.91 They have the discretion to convert outstanding fees and fines into payment options or waive them entirely.92

Recently, judicial candidates running on probation reform platforms have had success in getting elected and in eliminating the model.93 In 2015, David Boling and Tommy Fowler announced that they were running for judgeships in Craighead County, Arkansas.94 Their platforms included explicit promises to abolish the county’s user-funded probation system.95 The following year, both men won their elections.96 Upon assuming the bench, they fulfilled their campaign promises in two ways. First, they dissolved Craighead County’s relationship with the local private probation company, The Justice Network.97 Second, they instituted “Amnesty Days,” during which they considered outstanding probation fees and fines on a case-by-case basis and exercised their discretion to waive the money owed or to convert it to community service hours.98 The successful campaigns in Craighead County could serve as a model for other judicial elections, thereby posting similar threats to the other jurisdictions.

Financially over-burdened jurisdictions are unlikely to be able to withstand the cost of litigation, much less the cost of the average pay out, should the case move forward with merit.99 If impact litigation does not prove too burdensome on the jurisdictions, state-level litigation or judicial election strategizing could prove to make contracting-out misdemeanor probation monitoring services impractical or even impossible. Accordingly, it is in the best interest of the counties and municipalities currently using user-funded contracts with private probation monitoring companies to adopt an alternate model for their misdemeanor probation services.

IV.  Proposed Solutions to Mitigate User-Funded Contracting Liabilities

In light of the foreseeable cost of defending litigation challenges to the implementation of user-funded private probation contracts and the looming threat of state-level legislation or judicial action rendering the system completely unfeasible, it is in the best interest of counties and municipalities that currently use user-funded contracts with private companies for their probation monitoring to consider either ending that practice or substantially mitigating their liability. Instead of waiting for the current system to crumble under the weight of the cost of litigation or be dashed away by legislative or judicial action, jurisdictions should consider either (1) proactively adopting reforms to reduce their probation population to end the necessity of private misdemeanor monitoring or (2) incorporating an organization conflict of interest clause to help mitigate their liability in the event that the private company they contract with is prosecuted as described in Part III.A.

A.  Implementation of Probation Reduction Measures

Counties and municipalities currently using user-funded contracts with private probation companies could reduce or eliminate the need to contract-out their misdemeanor probation by implementing nationally-successful probation reduction measures. In this strategy, a county or municipality currently using user-funded contracts would reduce or eliminate that practice, dissolve its relationship with the private probation monitoring company, internalize the cost, and manage the additional expense by reducing the number of persons under government supervision to a number that is financially feasible.

In 2007, a private-public coalition of criminal justice-oriented organizations, including the DOJ’s Bureau of Justice Assistance, the Pew Charitable Trusts, the Council of State Governments Justice Center, the Crime and Justice Institute, and the Vera Institute of Justice, began the Justice Reinvestment Initiative (JRI).100 The initiative helps facilitate state-level criminal justice reforms that “aim to improve public safety and control taxpayer costs by prioritizing prison space for serious and repeat offenders and investing some of the savings in alternatives to incarceration for low-level offenders that are effective at reducing recidivism.”101 Since the program’s inception, thirty-three states have implemented JRI reforms specific to their precise criminal justice reform goals and needs.102 In the first eight years of JRI, the Federal Bureau of Statistics reported a thirteen-percent decrease in incarceration and seventeen-percent decrease in the community supervision population (comprised of parolees and probationers), reducing the national rate of community supervision from one in forty-five to one in fifty-three.103

States that have not yet adopted JRI initiatives could possibly successfully and safely reduce the size of their probation populations by reducing probation terms,104 instituting earned discharge,105 improving access to mental health and substance abuse resources for probationers,106 and/ or implementing graduated responses for violations.107

B.  Adoption of an Organizational Conflict of Interest Clause

The best way to avoid the consequences of user-funded contracting backlash would be to abolish the practice entirely and manage the internalized cost by reducing the misdemeanor probation population. However, that may not be feasible for all jurisdictions. Counties and municipalities that are unable to reduce their probation populations enough to feasibly internalize the cost of monitoring should consider incorporating an organizational conflict of interest (“OCI”) clause, like those used in federal procurement, into their contracts with private probation monitoring companies in order to limit their liability for potential legal consequences.

An OCI occurs when “because of other activities or relationships with other persons, a person is unable or potentially unable to render impartial assistance or advice to the Government, or the person’s objectivity in performing the contract work is or might be otherwise impaired, or a person has an unfair competitive advantage,”108 where the term “person” is used, in the legal sense, to refer to an organization, its internal structures, its employees, and subcontractors.109 There are three main types of OCIs: (1) unequal access to information, (2) biased ground rules, and (3) impaired objectivity.110 Impaired objectivity OCIs can occur when a contractor is economically incentivized to act biasedly under its contract with the government.111 As discussed in Part II.B, user-funded contracts create financial incentives for private probation officers to make recommendations to the court that will keep probationers under surveillance.112 Therefore, the types of claims made in the litigation challenges detailed in Part III.A, which focus on alleged bias and improper action by private probation companies, are essentially variations on an impaired objectivity OCI allegation. Accordingly, OCI clauses could lend protection to user-funded contracting jurisdictions similar to the protection that they provide to agencies engaged in federal procurement.

1.  Organizational Conflicts of Interest in Federal Procurement

OCI clauses are well-recognized facets of federal procurement.113 In 1962, the Bureau of Budget,114 introduced the concept of OCIs in a report to Congress.115 Therein, the Bureau of Budget “recommend[ed] that the President instruct each department and agency head, in consultation with the Attorney General, to proceed to develop as much of a code of conduct for individuals and organization in the research and development field as circumstances now permit.”116 FAR 9.5 defines OCI, dictates contracting officer responsibilities, lists rules and procedures for dealing with OCIs, imposes a contract clause obligation, provides a list, though not an exhaustive one, of possible OCI situations, and provides a model contractual clause. 117 OCI clauses in federal procurement contracts define potential OCIs and dictate required actions for government entities to help mitigate identified potential conflicts.118

Inclusion of an OCI clause can help shield the government from legal liability.119 Accusations of OCIs are often made in the course of a bid protest.120 When a government agency is accused of an OCI, the Government Accountability Office (GAO) and Court of Federal Claims (CoFC) look at the agency’s attempts at mitigation.121 Even in the event that the GAO or CoFC finds that an OCI did occur, the government agency can still possibly succeed if it can show that it took reasonable steps to mitigate possible OCIs.122 An OCI clause could function similarly in lawsuits against jurisdictions with user-funded contracts. If a county or municipality is able to demonstrate that it took reasonable steps to address the alleged conflict of interest, the court may find that it is less culpable for any damages it awards to the plaintiffs.

2.  Implementation of Organizational Conflicts of Interest in Local Procurement Contracts with Private Probation Companies

The concept of OCI’s is significantly less developed in state and local procurement practices in that only five states and the District of Columbia have OCI language in their procurement regulations.123 Among those six jurisdictions, only Tennessee and Minnesota have formal OCI regulations that apply to all state government procurement, and neither of them is as thorough nor provides as much protection as FAR 9.5.124 Therefore, this Note proposes that counties and municipalities who intend to continue user-funded contracting with private probation monitoring companies adopt a statute mirrored after FAR 9.5 by adapting each of its nine subsections to specifically serve the interests of the jurisdiction. The remainder of this subsection will walk through each FAR 9.5’s subsection applicable to these local procurement schemes and propose an adaptation.

i.  FAR 9.500 Scope

This subpart—

(a)  Prescribes responsibilities, general rules, and procedures for identifying, evaluating, and resolving organizational conflicts of interest;

(b)  Provides examples to assist contracting officers in applying these rules and procedures to individual contracting situations; and

(c)    Implements section 8141 of the 1989 Department of Defense Appropriation Act, Pub. L. 100–463, 102 Stat. 2270–47 (1988).125

An adapted local procurement regulation would read the same as 9.500, with the exception of 9.500(c). There, instead of referencing the Department of Defense Appropriation Act, the local regulation would reference any statute or regulation currently on the books that deals with conflicts of interest in procurement.

ii.  FAR 9.502 Applicability

(a)   This subpart applies to contracts with either profit or nonprofit organizations, including nonprofit organizations created largely or wholly with Government funds.

(b)  The applicability of this subpart is not limited to any particular kind of acquisition. However, organizational conflicts of interest are more likely to occur in contracts involving —
(1)      Management support services;
(2)      Consultant or other professional services;
(3)      Contractor performance of or assistance in technical evaluations; or
(4)      Systems engineering and technical direction work performed by a contractor that does not have overall contractual responsibility for development or production.

(c)   An organizational conflict of interest may result when factors create an actual or potential conflict of interest on an instant contract, or when the nature of the work to be performed on the instant contract creates an actual or potential conflict of interest on a future acquisition. In the latter case, some restrictions on future activities of the contractor may be required.

(d)  Acquisitions subject to unique agency organizational conflict of interest statutes are excluded from the requirements of this subpart.126

An adapted local procurement regulation would use a subpart mirroring 9.502 to highlight the potential for OCIs in user-funded private probation contracts and any other high-risk procurement activity that the jurisdiction engages in.

iii.  FAR 9.503 Waiver

The agency head or a designee may waive any general rule or procedure of this subpart by determining that its application in a particular situation would not be in the Government’s interest. Any request for waiver must be in writing, shall set forth the extent of the conflict, and requires approval by the agency head or a designee. Agency heads shall not delegate waiver authority below the level of head of a contracting activity.127

Here, an adapted local procurement regulation would address who has the power to waive the following regulations. Since local jurisdictions vary in who has contracting power, this subpart will serve to help define responsibilities.

iv.  FAR 9.504 Contracting Officer Responsibilities

(a)  Using the general rules, procedures, and examples in this subpart, contracting officers shall analyze planned acquisitions in order to —
(1)      Identify and evaluate potential organizational conflicts of interest as early in the acquisition process as possible; and
(2)      Avoid, neutralize, or mitigate significant potential conflicts before contract award.

(b)  Contracting officers should obtain the advice of counsel and the assistance of appropriate technical specialists in evaluating potential conflicts and in developing any necessary solicitation provisions and contract clauses (see 9.506).

(c)   Before issuing a solicitation for a contract that may involve a significant potential conflict, the contracting officer shall recommend to the head of the contracting activity a course of action for resolving the conflict (see 9.506).

(d) In fulfilling their responsibilities for identifying and resolving potential conflicts, contracting officers should avoid creating unnecessary delays, burdensome information requirements, and excessive documentation. The contracting officer’s judgment need be formally documented only when a substantive issue concerning potential organizational conflict of interest exists.

(e)  The contracting officer shall award the contract to the apparent successful offeror unless a conflict of interest is determined to exist that cannot be avoided or mitigated. Before determining to withhold award based on conflict of interest considerations, the contracting officer shall notify the contractor, provide the reasons therefor, and allow the contractor a reasonable opportunity to respond. If the contracting officer finds that it is in the best interest of the United States to award the contract notwithstanding a conflict of interest, a request for waiver shall be submitted in accordance with 9.503. The waiver request and decision shall be included in the contract file.128

An adapted local procurement regulation would use this section to build upon the wavier section’s definition of contracting responsibilities and define procedures for dealing with an OCI, particularly disclosure requirements.

v.  FAR 9.505 General Rules

The general rules in 9.505-1 through 9.505-4 prescribe limitations on contracting as the means of avoiding, neutralizing, or mitigating organizational conflicts of interest that might otherwise exist in the stated situations. Some illustrative examples are provided in 9.508. Conflicts may arise in situations not expressly covered in this section 9.505 or in the examples in 9.508. Each individual contracting situation should be examined on the basis of its particular facts and the nature of the proposed contract. The exercise of common sense, good judgment, and sound discretion is required in both the decision on whether a significant potential conflict exists and, if it does, the development of an appropriate means for resolving it. The two underlying principles are —

(a)   Preventing the existence of conflicting roles that might bias a contractor’s judgment; and

(b)  Preventing unfair competitive advantage. In addition to the other situations described in this subpart, an unfair competitive advantage exists where a con- tractor competing for award for any Federal contract possesses —
(1)      Proprietary information that was obtained from a Government official without proper authorization; or
(2)      Source selection information (as defined in 2.101) that is relevant to the contract but is not available to all competitors, and such information would assist that contractor in obtaining the contract.129

An adapted local procurement regulation would predominantly mirror 9.505’s general rules, with the exceptions of the competitive advantage language.

vi.  FAR 9.506 Procedures

(a)   If information concerning prospective contractors is necessary to identify and evaluate potential organizational conflicts of interest or to develop recommended actions, contracting officers should first seek the information from within the Government or from other readily available sources. Government sources include the files and the knowledge of personnel within the contracting office, other contracting offices, the cognizant contract administration and audit activities and offices concerned with contract financing. Non-Government sources include publications and commercial services, such as credit rating services, trade and financial journals, and business directories and registers.

(b)  If the contracting officer decides that a particular acquisition involves a significant potential organizational conflict of interest, the contracting officer shall, before issuing the solicitation, submit for approval to the chief of the contracting office (unless a higher level official is designated by the agency) —
(1)      A written analysis, including a recommended course of action for avoiding, neutralizing, or mitigating the conflict, based on the general rules in 9.505 or on another basis not expressly stated in that section;
(2)      A draft solicitation provision (see 9.507-1); and
(3)      If appropriate, a proposed contract clause (see 9.507-2).

(c)  The approving official shall —
(1)      Review the contracting officer’s analysis and recommended course of action, including the draft provision and any proposed clause;
(2)      Consider the benefits and detriments to the Government and prospective contractors; and
(3)      Approve, modify, or reject the recommendations in writing.

(d)   The contracting officer shall —
(1)      Include the approved provision(s) and any approved clause(s) in the solicitation or the contract, or both;
(2)      Consider additional information provided by prospective contractors in response to the solicitation or during negotiations; and
(3)      Before awarding the contract, resolve the conflict or the potential conflict in a manner consistent with the approval or other direction by the head of the contracting activity.

(e)  If, during the effective period of any restriction (see 9.507), a contracting office transfers acquisition responsibility for the item or system involved, it shall notify the successor contracting office of the restriction, and send a copy of the contract under which the restriction was imposed.130

An adapted local procurement regulation should adopt nearly all of 9.506’s procedure requirements. In particular, this section needs a directive to bifurcate the probation monitoring responsibilities between the jurisdiction and the probation company.131

vii.  FAR section 9.507 Solicitation Provisions and Contract Clauses

9.507-1 Solicitation provisions:

As indicated in the general rules in 9.505, significant potential organizational conflicts of interest are normally resolved by imposing some restraint, appropriate to the nature of the conflict, upon the contractor’s eligibility for future contracts or subcontracts. Therefore, affected solicitations shall contain a provision that —

(a)  Invites offerors’ attention to this subpart;

(b)  States the nature of the potential conflict as seen by the contracting officer;

(c)   States the nature of the proposed restraint upon future contractor activities; and

(d)   Depending on the nature of the acquisition, states whether or not the terms of any proposed clause and the application of this subpart to the contract are subject to negotiation.

9.507-2 Contract clause: 132

(a)   If, as a condition of award, the contractor’s eligibility for future prime contract or subcontract awards will be restricted or the contractor must agree to some other restraint, the solicitation shall contain a proposed clause that specifies both the nature and duration of the proposed restraint. The contracting officer shall include the clause in the contract, first negotiating the clause’s final terms with the successful offeror, if it is appropriate to do so (see 9.508-1(d) of this subsection).

(b)   The restraint imposed by a clause shall be limited to a fixed term of reasonable duration, sufficient to avoid the circumstance of unfair competitive advantage or potential bias. This period varies. It might end, for example, when the first production contract using the contractor’s specifications or work statement is awarded, or it might extend through the entire life of a system for which the contractor has performed systems engineering and technical direction. In every case, the restriction shall specify termination by a specific date or upon the occurrence of an identifiable event.133

An adapted local procurement regulation could focus in the contract clause and draft applicable language to be used in contracts with private probation companies.

Although either the implementation of probation reduction measures or the integration of an OCI clause will require an immediate expenditure of funds, time, and energy, the initial output is significantly preferable to waiting for the user-funded private probation model to either become too costly to maintain or impossible to employ due to state legislation or judicial action. By acting proactively, jurisdictions can phase out their current contracts slowly and facilitate a seamless transition to a new system on their own terms, instead of being forced to scramble for a solution.

V.  Conclusion

The private probation model of misdemeanor probation monitoring is dying a slow death. Although it is logistically convenient and fiscally responsible for counties and municipalities in the short run, it exposes jurisdictions that employ it to costly litigation challenges, that may ultimately prove less fiscally responsible than internalizing the cost at the outset. Jurisdictions that are able to survive litigation challenges may still see the end of the private probation user-funded model through state-level legislation or judicial elections. It is in the best interest of these jurisdictions to get ahead of these issues by reducing their probation populations to a manageable size and internalizing the cost or, at the very least, taking steps to protect themselves with an organizational conflict of interest clause.

Entity:
Topic:
  1. See Alysia Santo, How to Fight Modern-Day Debtors’ Prisons? Sue the Courts., The Marshall Project (Oct. 1, 2015), https://www.themarshallproject.org/2015/10/01/how-to-fight-modern-day-debtors-prisons-sue-the-courts#.JPoncAgP0 [https://perma.cc/MF9H-M9PL]; Settlement Agreement and Release at 1, 15-16, Rodriguez v. Providence Cmty. Corr., Inc., 191 F. Supp. 3d. 758 (M.D. Tenn. 2016) No. 3:15-cv-01048 [hereinafter Settlement Agreement and Release].
  2. See Class Action Compl. at 3, 73, Rodriguez v. Providence Cmty. Corr., Inc., 155 F. Supp. 3d. 758 (M.D. Tenn. 2015) No. 3:15-cv-01048 [hereinafter Class Action Compl.].
  3. See id. at 9, 32, 36.
  4. See Rodriguez v. Providence Community Corrections, Equal Justice Under Law, https://equaljusticeunderlaw.org/case-pcc-probation (last visited May 15, 2019), [https://perma.cc/3RN3-5NQU].
  5. See Class Action Compl., supra note 2, at 2.
  6. See id. at 3.
  7. See Chris Albin-Lackey, Profiting From Probation: America’s “Offender-Funded” Probation Industry, Human Rights Watch 15 (Feb. 2014) [hereinafter Albin-Lackey].
  8. See id. at 32–33; Class Action Compl., supra note 2, at 3.
  9. See Albin-Lackey, supra note 7, at 1, 13.
  10. See id. at 7–8.
  11. In 2018, the U.S. Census Bureau reported the following racial/ethnic distributions in the U.S. general population: White—76.6%, Black or African American—13.4%, Hispanic or Latin[x]—18.1%. See Quick Facts: United States, U.S. Census Bureau, https://www.census.gov/quickfacts/fact/table/US/PST040218 [https://perma.cc/3BCR-MNDG] (last visited Apr. 18, 2019); compare with the Department of Justice’s (DOJ) Bureau of Justice Statistics’ reported racial/ethnic distributions for 2015 for adults on probation: White—55%, Black/African American—30%, Hispanic/Latin[x]—13%. See Bureau of Justice Statistics, U.S. Dep’t of Justice, Probation and Parole in the United States, 2015 5 (2016) [hereinafter Probation and Parole]; see also Albin-Lackey, supra note 7, at 1.
  12. See generally Albin-Lackey, supra note 7. This report disapproves of the current state of the “offender-funded” contract model and proposes several changes.
  13. The most recent DOJ statistics (from 2015) estimate a total of 3,789,800 probationers nationwide. See Bureau of Justice Statistics, U.S. Dep’t of Justice, Correctional Populations in the U.S., 2015, at 2 (2016) [hereinafter Correctional Populations]. The Prison Policy Initiative’s estimates for 2017 are in line with those numbers, estimating a national probation population of 3.6 million citizens. See Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2019, Prison Policy Initiative (Mar. 19, 2019), https://www.prisonpolicy.org/reports/pie2019.html [https://perma.cc/CDE6-C5QR].
  14. See, e.g., U.S. Sentencing Comm’n, Alternative Sentencing in the Federal Criminal Justice System 2 (2015) (“The Commission incorporated these policies into the federal sentencing guidelines along with other probation and intermediate confinement options for less serious and first-time offenders.”) (emphasis added) (citations omitted). It would be remiss not to note that white offenders are more likely to receive alternative sentences, like probation, than black and Hispanic offenders of the same crimes. See id. at 15–16.
  15. See Albin-Lackey, supra note 7, at 12.
  16. See Probation and Parole, supra note 11.
  17. This phenomenon is sometimes referred to as “the probation paradox.” Logically, it seems that as the number of probationers rises, the number of incarcerated citizens would decrease. However, statistical data shows us that the two populations have, in fact, grown in tandem, resulting in overall growth of government supervision. See Peter Wagner, Probation: The Nicest Sounding Way to Grease the Skids of Mass Incarceration, Prison Policy Initiative (Aug. 11, 2015), http://www.prisonpolicy.org/blog/2015/08/11/probation/ [https://perma.cc/WXF3-4BKV].
  18. See Correctional Populations, supra note 13.
  19. See Albin-Lacky, supra note 7, at 12.
  20. See id.
  21. See id.
  22. See id.
  23. See id.
  24. See id. at 33.
  25. See Albin-Lacky, supra note 7, at 33 (citation omitted).
  26. See id. at 3.
  27. Federal prisoners accounted for approximately less than 220,000 of the nearly 2.3 million Americans incarcerated in 2019. See Sawyer & Wagner, supra note 13. State prisons house 1.4 million Americans. Local jails house approximately 730,000 Americans. Accordingly, the vast majority of the financial burden associated with incarcerating and surveilling massive swaths of the population falls on states and localities, not the federal government. See Christian Henrichson, Joshua Rinaldi, Ruth Delaney, Vera Inst. of Justice, The Price of Jails: Measuring The Taxpayer Cost of Local Incarceration 4–6 (2015) (citations omitted).
  28. Percentage of the population on probation varies wildly from state to state. For example, in 2016, the state of Georgia monitored over 4,565 probationers per 100,000 citizens. That same year, Maine monitored only an estimated 486 probationers per 100,000 citizens. See Bernadette Rabuy & Peter Wagner, Correctional Control: Incarceration and Supervision by State, Prison Policy Initiative (June 1, 2016), https://www.prisonpolicy.org/reports/50statepie.html [https://perma.cc/2F4C-NUD5] (illustrating the wide discrepancy in the administration and use of probation among the 50 states) [hereinafter Correctional Control].
  29. See Albin-Lackey, supra note 7, at 12 (citation omitted).
  30. See id.
  31. See About Sentinel Offender Services, Sentinel Offender Services https://www.sentineladvantage.com/about-sentinel-offender-services [https://perma.cc/ZHL8-XNGA] [hereinafter Sentinel Offender Services] (last visited Apr. 10, 2018) (“Sentinel pioneered the community-based offender-funded program model. Program fees are paid for by offenders, saving taxpayers millions of dollars in jail costs.”).
  32. According to a recent Human Rights Watch report, states known to contract out for these services include Georgia, Tennessee, Alabama, Mississippi, Florida, Colorado, Utah, Washington, Missouri, Michigan, Montana, and Idaho. See Albin-Lackey, supra note 7, at 16 n. 20.
  33. See generally Probation and Parole Systems Marked by High Stakes, Missed Opportunities, The Pew Charitable Trusts 17 (Sept. 2018), https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2018/09/probation-and-parole-systems-marked-by-high-stakes-missed-opportunities [https://perma.cc/Q3E7-U3RL] (“Research suggests that probation totals are probably undercounted because some agencies report only felony sentences and some may include or exclude individuals on other forms of community control (e.g., diversion programs, private probation, and drug courts).”).
  34. According to a 2014 Human Rights Watch report on the private probation industry, “[t]here is virtually no transparency about the revenues of private probation companies. All or practically all of the industry’s firms are privately held and not subject to the disclosure requirements that bind publicly traded companies. No state requires probation companies to report their revenues, or by logical extension the amount of money they collect for themselves from probationers. Companies refuse to publicize this information voluntarily.” Albin-Lackey, supra note 7, at 18 (citation omitted).
  35. See id. at 15 (citation omitted).
  36. See id.
  37. See id.
  38. See id. at 23, 32–33.
  39. See id. at 23.
  40. See Albin-Lackey, supra note 7, at 23–25 (citations omitted).
  41. See id. at 25.
  42. See id. at 26.
  43. See id. at 27.
  44. See id.
  45. See id.
  46. See id. at 32–33.
  47. See id. at 33.
  48. Drug tests tend to cost around $25 per test. At that rate, one year of weekly drug tests costs a probationer $1,250 per year. GPS monitoring tends to cost $6–12 per day. At that rate, one year of GPS monitoring costs a probationer over $2,000 per year. Many private probation companies also charge a set-up fee for GPS monitors, which can range from $50–80. See id. at 33, 36 (citations omitted).
  49. See id. at 46 (citation omitted).
  50. See id.
  51. See, e.g., The Challenges of Reentry, Vera Inst. of Justice (2015), https://www.vera.org/the-human-toll-of-jail/a-helping-had-on-the-way-home/the-challenges-of-reentry [https://perma.cc/EK5E-L3LC].
  52. See Albin-Lackey, supra note 7, at 51 (citation omitted).
  53. See id. at 52 (citations omitted).
  54. See id. at 6.
  55. See id. at 38 (citation omitted).
  56. See id. (citations omitted).
  57. See id. at 40–41 (citations omitted).
  58. See Albin-Lackey, supra note 7, at 40–41 (describing instances where probation company officers used a probationer’s possession of Air Jordans or decision to buy cigarettes as dispositive of his/her willful nonpayment).
  59. From 2014 through 2016, CoreCivic (formerly Corrections Corporation of America), a private company that contracts to provide both probation monitoring services and private prison services, has noted its dependence on maintaining populations of surveilled and incarcerated citizens, writing that “[u]nder a per diem rate structure, a decrease in our occupancy rates could cause a decrease in revenue and profitability.” Corr. Corp. of Am., 2014 Annual Report 6, 23 (2014); Corr. Corp. of Am., 2015 Annual Report 28 (2015); CoreCivic, Inc., 2016 Annual Report 30 (2016).
  60. Cf. Christopher Hartney & Linh Vuong, Created Equal: Racial and Ethnic Disparities in the US Criminal Justice System, Nat’l Council On Crime & Delinq. (Mar. 2009), http://www.nccdglobal.org/sites/default/files/publication_pdf/created-equal.pdf [https://perma.cc/ZN88-FWV7] (citation omitted).
  61. See Albin-Lackey, supra note 7, at 27.
  62. See id.
  63. See generally id. at 7–9.
  64. See Sentinel Offender Services, supra note 31.
  65. See, e.g., Andrew Cohen, Is There a Constitutional Right to Cash in on the Poor?, The Marshall Project (Sept. 11, 2017), https://www.themarshallproject.org/2017/09/11/is-there-a-constitutional-right-to-cash-in-on-the-poor [https://perma.cc/LYY5-85P6] [hereinafter Constitutional Right]; Andrew Cohen, The Private Probation Problem Is Worse Than Anyone Thought, Atlantic (Feb. 5, 2014), https://www.theatlantic.com/national/archive/2014/02/the-private-probation-problem-is-worse-than-anyone-thought/283589/ [https://perma.cc/8LFH-JJEB] [hereinafter Probation Problem].
  66. See Kamala D. Harris & Rand Paul, To Shrink Jails, Let’s Reform Bail, N.Y. Times (July 20, 2017), https://www.nytimes.com/2017/07/20/opinion/kamala-harris-and-rand-paul-lets-reform-bail.html [https://perma.cc/W7RC-CRNK]; Seung Min Kim, Paul, Booker Team Up for Justice, Politico (July 8, 2014) https://www.politico.com/story/2014/07/cory-booker-rand-paul-team-up-108640 [https://perma.cc/73BZ-FYLZ] (describing the REDEEM Act backed by Republican Senator Rand Paul and Democratic Senator Corey Booker); Seung Min Kim, Senators Unveil Bipartisan Criminal Justice Reform Package, Politico (Oct. 4, 2017), https://www.politico.com/story/2017/10/04/senate-bipartisan-bill-criminal-justice-reform-243455 [https://perma.cc/95EC-GD6G] (describing a bill presented by Republican Senator Chuck Grassley and Democratic Senator Dick Durbin with executive branch support from Jared Kushner).
  67. See, e.g., Constitutional Right, supra note 65.
  68. See generally Compl., McNeil v. Cmty. Prob. Servs., LLC, No. 1:18-cv-00033, 2019 U.S. Dist. LEXIS 41252 (M.D. Tenn. Jan. 7, 2019); Harper v. Prof’l Prob. Servs. Inc., No. 2:17-cv-01791-ACA, 2018 U.S. Dist. LEXIS 193896 (N.D. Ala. Nov. 14, 2018); Edwards v. Leaders in Cmty. Alts., Inc., No. C 18-04609 WHA, 2018 U.S. Dist. LEXIS 211406 (N.D. Cal. Dec. 14, 2018).
  69. See id.
  70. See Settlement Agreement and Release, supra note 1, at 15–16 (assigning $14 million of the settlement fund to the probation company and $300,000 to the county itself).
  71. See generally Compl., McNeil, U.S. Dist. LEXIS 41252; Harper, U.S. Dist. LEXIS 193896; Edwards, U.S. Dist. LEXIS 211406.
  72. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI.
  73. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.
  74. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV.
  75. See Eli Hager, Debtors’ Prisons, Then and Now: FAQ, The Marshall Project (Feb. 24, 2015), https://www.themarshallproject.org/2015/02/24/debtors-prisons-then-and-now-faq [https://perma.cc/3DNA-ZWP2].
  76. See Bearden v. Georgia, 461 U.S. 660, 674 (1983) (“By sentencing petitioner to imprisonment simply because he could not pay the fine, without considering the reasons for the inability to pay or the propriety of reducing the fine or extending the time for payments or making alternative orders, the court automatically turned a fine into a prison sentence.”).
  77. See 18 U.S.C. § 1962 (2012):
    (a) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern or racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer.
    (b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.
    (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.
    (d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section.
  78. See generally Albin-Lackey, supra note 7, at 46–53 (citations omitted).
  79. See discussion supra Part II.A.
  80. Cf. Albin-Lackey, supra note 7, at 7–8.
  81. See id. at 7–9.
  82. Before executive agencies contract with private companies for goods or services, the company with the ostensibly winning contract bid must first pass a test of responsibility, which takes into account the company’s business practices and prior dealings with the government. See FAR 9.104-1.
  83. See genearlly Ga. Code Ann. § 42-8-102 (2018).
  84. See Bearden v. Georgia, 461 U.S. 660, 668 (1983) (citations omitted).
  85. See Albin-Lackey, supra note 7, at 38–39 (citations omitted).
  86. Under statutory revisions passed with House Bill 310, Georgia probationers are entitled to a special hearing before they can be incarcerated for nonpayment of fines or fees. See Ga. Code Ann. § 42-8-102(f)(2)(A):
    Absent a waiver, the court shall not revoke a probationary sentence for failure to pay fines, statutory surcharges, or probation supervision fees without holding a hearing, inquiring into the reasons for the probationer’s failure to pay, and, if a probationary sentence is revoked, making an express written determination that the probationer has not made sufficient bona fide efforts to pay and the probationer’s failure to pay was willful or that adequate alternative types of punishment do not exist.
  87. Under statutory revisions passed with House Bill 310, a private probation company may not charge pay-only probationers more than three months of supervision fees. See Ga. Code Ann. § 42-8-103(b):
    When pay-only probation is imposed, the total maximum fee collected shall be capped so as not to exceed three months of ordinary probation supervision fees at a monthly rate not to exceed the rate set forth in the contract between the court and the provider of services, notwithstanding the number of cases for which a fine and statutory surcharge were imposed or that the defendant was sentenced to serve consecutive sentences; provided, however, that collection of such fee shall terminate as soon as all court imposed fines and statutory surcharges are paid in full; and provided, further, that when all such fines and statutory surcharges are paid in full, the probation officer or private probation officer, as the case may be, shall submit an order to the court terminating the probated sentence within 30 days of fulfillment of such conditions.
  88. See Beth Schwartzapfel, Probation-for-Profit Just Got Less Profitable, The Marshall Project (Apr. 13, 2017), https://www.themarshallproject.org/2017/04/13/probation-for-profit-just-got-less-profitable [https://perma.cc/DF97-2RJ5].
  89. It bears noting that in the absence of Sentinel, CSRA Probation Services assumed the majority of Sentinel’s contracts within Georgia’s jurisdiction, resulting not in an absence of private probation monitoring but merely a new entity in control. See id.
  90. See Constitutional Right, supra note 65.
  91. See, e.g., Ga. Code Ann. § 42-8-101(b)(1) (codifying the ability of municipal judges in Georgia to establish or eliminate private probation systems).
  92. See Justice Network, Inc. v. Craighead Cty., No. 3:17-cv-00169 JM, 2017 U.S. Dist. LEXIS 194908, at *3–4 (E.D. Ark. Nov. 28, 2017).
  93. See Constitution Right, supra note 65.
  94. See id.
  95. See id.
  96. See id.
  97. Dissolving the relationship with The Justice Network seemed, at least ostensibly, like a simple task, since the company did not have a formal contract with the county and had been acting under an informal agreement. See id. However, when Judges Boling and Fowler moved to reform the jurisdiction’s probation monitoring practices, The Justice Network brought a lawsuit against the Judges Boling and Fowler as well as the county, seeking damages for lost profits. The court granted defendants’ motion to dismiss all claims. See Justice Network, 2017 U.S. Dist. LEXIS 194908, at *2, *6.
  98. See Constitutional Right, supra note 65.
  99. See Settlement Agreement and Release, supra note 1, at 15–16.
  100. See 31 States Reform Criminal Justice Policies Through Justice Reinvestment, Pew Charitable Trs. (Jan. 2016), https://www.pewtrusts.org/en/research-and-analysis/fact-sheets/2016/01/31-states-reform-criminal-justice-policies-through-justice-reinvestment [https://perma.cc/E8QY-HSW9] [hereinafter 31 States].
  101. Id.
  102. See Adam Gelb & Phillip Stevenson, U.S. Adult Incarceration Rate Declines 13% in 8 Years: Share Of Population Behind Bars Falls Back to 1998 Level, Pew Charitable Trs. (Jan. 12, 2017), http://www.pewtrusts.org/en/research-and-analysis/analysis/2017/01/12/us-adult-incarceration-rate-declines-13-percent-in-8-years [https://perma.cc/8V77-PJ9A].
  103. See id.
  104. Four states have reduced their probation term lengths: Texas in 2007, Vermont in 2008, Hawaii in 2012, and Alabama in 2015. See 31 States, supra note 100.
  105. Thirteen states have instated earned discharge for probationers with good behavior: Arizona in 2008, New Hampshire and South Carolina in 2010, Arizona and Kentucky in 2011, Missouri and Delaware in 2012, Kansas, South Dakota, and Oregon in 2013, Idaho and Mississippi in 2014, and Utah in 2015. See id.
  106. Seventeen states have improved their community supervision populations’ access to mental health and substance abuse programming: Texas, Nevada, and Kansas in 2007, Pennsylvania and Vermont in 2008, Wisconsin in 2009, Michigan in 2010, North Carolina and Ohio in 2011, Delaware in 2012, South Dakota, West Virginia, and Kansas in 2013, Idaho in 2014, and Utah, Nebraska, and Alabama in 2015. See id.
  107. Eighteen states have authorized graduated responses for probation violations: Texas and Nevada in 2007, South Carolina in 2010, North Carolina, Louisiana, Arkansas, and Kentucky in 2011, Pennsylvania, Georgia, and Delaware in 2012, Kansas, West Virginia, and South Dakota in 2013, Mississippi and Idaho in 2014, and Utah, Alabama, and Nebraska in 2015. See id.
  108. FAR 2.101.
  109. See Daniel I. Gordon, Organizational Conflicts of Interest: A Growing Integrity Challenge, 35 Pub. Cont. L.J. 25, 29 (2005).
  110. See id. at 32 (citations omitted); Keith R. Szeliga, Conflict and Intrigue in Government Contracts: A Guide to Identifying and Mitigating Organizational Conflicts of Interest, 35 Pub. Cont. L.J. 639, 648 (2006) [hereinafter Szeliga] (citations omitted).
  111. See Szeliga, supra note 110, at 660 (citations omitted).
  112. See supra Part II.B.
  113. See, e.g., FAR 9.500.
  114. The Bureau of Budget is now the Office of Management and Budget. See Exec. Order No. 11,541, 3 C.F.R § 1 (1970).
  115. See Bureau of the Budget, Report to the President on Government Contracting For Research and Development 12–13 (1962).
  116. Id. at 14.
  117. See FAR 9.5.
  118. See FAR 9.507.
  119. See generally Joseph R. Berger, The Year in Sustained Bid Protests at the U.S. Government Accountability Office and the U.S. Court of Federal Claims, 37 Pub. Cont. L.J. 731, 752–55 (2008) [hereinafter Berger] (citations omitted).
  120. See Szeliga, supra note 110, at 642 (“[T]the Government Accountability Office (GAO) and the Court of Federal Claims (Court) have developed a rich body of case law interpreting current OCI regulations and analyzing various mitigation strategies.”).
  121. See Berger, supra note 119, at 752 (citations omitted).
  122. See id. at 752–53.
  123. See Cal. Pub. Con. Code § 6822 (West 2014) (requiring the commission for Transportation Design-Build Program develop guidelines “pursuant to subdivision (e) of Section 6803, as it read on December 31, 2013”); D.C. Code Ann. § 2-352.05a (West 2016) (pertaining only to OCIs arising from inherently governmental functions performed by a private contractor); Idaho Code Ann. § 40-905 (West 2010) (requiring OCI disclosures only for contracts awarded to construction managers or general contractors for highway or bridge projects); 625 Ill. Comp. Stat. Ann. § 5/13c-45 (West 2006) (suggesting agencies include provisions pertaining to potential rganizational conflicts of interest in contracts for vehicle emissions inspection facilities and service); Minn. Stat. Ann. § 16C.04 (West 2014) (imposing obligations on the commissioner in the event of an organizational conflict of interest during procurement); Tenn. Code Ann. § 12-4-115 (West 2014) (loosely defining organizational conflicts of interest in state procurement and imposing obligations to avoid or mitigate).
  124. See Minn. Stat. Ann. § 16C.04; Tenn. Code Ann. § 12-4-115.
  125. FAR 9.500.
  126. FAR 9.502.
  127. FAR 9.503.
  128. FAR 9.504.
  129. FAR 9.505.
  130. FAR 9.506.
  131. See Szeliga, supra note 110, at 662 (“These concerns may not be implicated, however, when a contractor is responsible for monitoring, rather than evaluating, its performance.”) (citations omitted).
  132. FAR 9.507-1.
  133. FAR 9.507-2.