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.

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