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Opportunity Costs: Unequal Justice in Alabama’s Community Corrections Programs

Tella Barnett fears she’ll end up behind bars again if she gets behind on her payments.

She’s one of thousands of people in Alabama who pay to stay out of prison. On March 27, she paid a $30 monitoring fee as well as a $40 supervision fee. She paid $40 in drug testing fees and $30 in “rescheduling fees.” The total: $140 in a day.

“Oh, my goodness, I can barely afford to eat,” said Barnett, 30. “I have three small children and I’m trying to pay for my home. I have $375 a month in rent, plus the power, plus the water, plus gas to get to work. It’s hard to pay that, it really is.”

No matter how hard it is – and no matter how little money she earns – she’ll have to pay those fees again next month and every month thereafter as long as she’s supervised by the community corrections program she reports to in northwest Alabama.

Barnett’s money goes to the Marion-Winston Court Referral Services Inc. (MWCRS). It’s a nonprofit organization and one of more than three dozen entities that separately operate community corrections programs across Alabama.

These organizations could soon be in the spotlight in Alabama, where state officials are trying to resolve massive prison overcrowding caused by historically harsh sentencing laws coupled with chronic underfunding. It’s a system facing multiple federal lawsuits (including from the SPLC) that challenge what legal advocates say are grossly inhumane conditions, indifference to the medical and mental health needs of prisoners and rampant violence.

As Alabama, like the rest of the country, deals with its over-incarceration problem, community corrections programs offer an attractive alternative to prison. The programs allow some people convicted of nonviolent felony offenses to live in their communities and, ideally, receive rehabilitative services, at a fraction of the cost of incarcerating them. 

But the SPLC’s eight-month investigation of community corrections programs in Alabama reveals serious flaws in a “user-funded justice” system that, in many locales, seems to be focused more on raising money than on rehabilitation or public safety. It’s a pay-to-play model that drains millions of dollars each year in fees from participants.

This system relies on a patchwork of largely autonomous nonprofit organizations and county agencies that in many cases stay afloat only by charging fees from people who, like Barnett, are often struggling to feed their children and pay their bills. These programs can, in fact, become violation traps for low-income people, some of whom cycle in and out of programs for longer than they were initially sentenced or even wind up in jail or prison.

The system, in fact, creates unequal justice by placing greater burdens on the poor than on those with means. 

The SPLC’s investigation found that:

  • The programs, which have no common fee structure, charge participants wildly different fees for services like drug testing and various forms of supervision and monitoring, such as ankle bracelets. Drug screens, for example, range from $7 to $30 per test among Alabama’s 37 programs. Electronic monitoring fees range from $3 to $15 per day. The fee variation is partly due to Alabama Department of Corrections (ADOC) regulations that only allow for a $10 per day reimbursement for each eligible participant.  
  • By design, the programs have a great degree of autonomy and little meaningful oversight by ADOC, which has only a handful of employees to monitor them. There are few statewide standards, leaving enormous discretion in the hands of local administrators. In some counties, judges sit on the boards of these programs, even though they often sentence people into them – thereby generating fees that help keep them operating but also creating the appearance of a conflict of interest.    
  • In eight of the 37 programs, participants can wind up in some form of work release, a situation that one expert likened to “indentured servitude.” In some counties, judges order work release in lieu of bail for indigent people who are awaiting trial. 
  • Some participants are at risk of being charged for duplicative services. A majority (24) of the programs are intertwined administratively with local court referral programs (CROs), which are intended to serve a similar purpose for people charged with drug and alcohol offenses. Community corrections programs are overseen by ADOC, while CROs are overseen by a completely different agency, the Administrative Office of Courts. When both are operated under the same organization, the lines between the two can get blurred.

For this project, the SPLC spoke with dozens of judges, public defenders, criminal justice experts, individuals ordered into community corrections programs and nearly all community corrections directors across the state. Researchers reviewed hundreds of pages of documents, including audits, invoices, court records and all the community corrections plans submitted to the state by each organization.

“The counties are struggling, the state’s struggling, and I think that’s where it gets tricky with community corrections,” said Bennet Wright, executive director of the Alabama Sentencing Commission. “They’re given so much control at the local level that the state doesn’t have a lot of hooks into them, other than statutory limitations [on who is eligible]. Those are the only limitations that the state can enforce on the programs. So, the programs themselves run the gamut.”

The system was, indeed, designed to rely on participants to cover some of the cost.

A spokesman for ADOC rejected the notion that the $10-per-day reimbursement rate is too low. “The assertion that [community corrections programs] are ‘under pressure’ to generate revenue due to limited resources from ADOC, is completely false,” ADOC spokesman Bob Horton said.

In fiscal 2018, ADOC spent a little less than 2 percent (about $9.3 million) of its $495 million budget to reimburse community corrections agencies for supervising about 13 percent of the 26,790 people under ADOC’s jurisdiction. 

“Personally, I would say, if you can’t do the time, don’t do the crime,” said Walker County District Judge Henry Allred, who formerly served as the president of the board of the community corrections organization in his county. “It’s the system we have. There’s got to be some accountability on people who are committing crimes over and over and over again. I don’t think it’s a perfect system, I think there’s a lot wrong with it. But I don’t know of a better one out there.”

 

Photo by Scott Day

The tangled bureaucracy of community corrections in Alabama

Community corrections means something different across the country. In some states, it’s an umbrella term for probation, parole and other types of community supervision. In Alabama, it refers to county-based programs that offer community supervision for people convicted of nonviolent offenses in lieu of prison. 

In the simplest terms, these organizations supervise individuals through office visits, home visits, drug testing and, in some counties, electronic monitoring. 

Alabama has 37 programs currently operating in 51 of its 67 counties. Once a program is authorized by the ADOC, it’s allotted a yearly contract that essentially pays $10 a day for qualified individuals, mostly those convicted of nonviolent offenses. The system is based on the state’s Community Punishment and Corrections Act, enacted in 1991. Under the Act, programs can be set up as county authorities or as nonprofit entities. 

Although often run in tandem, community corrections programs are different than court referral programs, referred to as CROs. CROs are intended to simply act as programs that evaluate participants specifically with drug- or alcohol-related offenses and make referrals to educational and treatment services through the local courts. While community corrections programs are voluntary for counties, each county is required under the Mandatory Treatment Act of 1990 to have a CRO, and they’re overseen by the Administrative Office of the Courts. 

Although these programs are overseen by state agencies, state law allows for them to operate with substantial local autonomy. 

For instance, the community corrections organization in Walker County, which also operates the CRO and a drug court, sees this autonomy as a benefit. Its statement of need notes that “being a community-based organization that answers directly to judges, WCCC can tailor supervision that meets whatever is ordered by the judge without having to ask for approval from the State of Alabama.”

In the roughly 30 years they’ve existed, community corrections programs and CROs have become intertwined administratively and financially. When these programs operate community corrections, CRO and even drug courts together, the lines between the services can get blurred.

While the Administrative Office of Courts has set uniform fees for all CRO programs – $30 for monitoring and a maximum of $40 a month for drug testing – ADOC and community corrections programs have not. This means community corrections programs can charge whatever they see fit for supervision and drug testing. When these services operate under one entity, participants are sometimes sentenced into one program such as community corrections, but still pay and participate in services in another due to the lack of accountability and oversight beyond individual county and local governments.

Tella Barnett knows all about that.

In March 2018, she was arrested in Marion County for allegedly having clonazepam, a medication used for anxiety and panic disorders, without a prescription. When she pleaded guilty to possessing a prescription medication without a prescription a year later, a state judge placed her on supervised probation for one year with the local community corrections agency. She started paying $40 per month in supervision fees, as well as $30 for drug tests and a penalty of $20 if she needed to reschedule an appointment.

At the same time, she was already under supervision by the local CRO for a previous DUI charge. For that, she was paying a $30-per-month supervision fee.

She was, in fact, paying twice for essentially the same thing to Marion-Winston Court Referral Services Inc., the nonprofit organization that ran both programs.

Jason Harris, the former court referral program specialist for the Administrative Office of Courts, said people should not be charged twice for the same service. Participants, he said, “won’t be paying fees to both entities at the same time, and duplicating drug testing, and stuff like that.”

And yet, Barnett’s receipts show she twice paid both the CRO and community corrections program on the same day.

In an interview, Harris said his agency has seen such organizations double-dip before. “You asked how we handle it: We pull a contract,” he said. “We close that program down and reopen it with new personnel that’s going to operate the way it should be.”

On June 5, the SPLC asked Harris to review records obtained by the SPLC and comment on whether the treatment of people like Barnett is “double-dipping.” After the SPLC’s inquiry, Administrative Director of Courts Rich Hobson terminated the CRO contract for Marion and Winston counties, effective on July 8.

The SPLC also requested an interview with the director or assistant director of the Community Corrections Division at ADOC and the department’s legal team to discuss all of the findings in this report. That request was denied.

 

Photo by Scott Day

Little accountability

It is virtually impossible to know whether the double-dipping scenario that Barnett experienced is commonplace.

However, it’s clear that the complexity of the system and its interactions with the courts can cause confusion and complicate the task of holding these agencies accountable – particularly since many are charging different rates for the same services, depending on whether the person was sentenced to community corrections or to the CRO.

In Escambia County in south Alabama, the community corrections agency was recently folded into the sheriff’s department. It charges participants a $30 monthly supervision fee and $20 for occasional drug tests.

According to court records, in some cases participants who were ordered into the program were required by a judge to be drug-tested – but through the count drug court’s color code system rather than the community corrections program, which was supervising them. The catch: In the drug court, the tests each cost $5 more than in the community corrections program and are more frequent, often adding up to $200 a month on top of other fees. 

The appearance is that the courts made decisions that would benefit the drug court financially, resulting in higher costs to the participant. 

“[That money] goes to the drug court fund,” said Tiffany Caylor, the former community corrections director in the county about cases when these special orders occurred. But the community corrections program still collected the money. Not only were these clients charged more for a service Caylor’s program could provide, the entanglement of fees often created confusion. 

“[It] was a problem because you never knew who was paying what,” Caylor said. “A lot of times you’d have to call and say hey, how much does this person owe? Which is stupid and unfair to the client.”

In the interview, Jason Harris of the Administrative Office of Courts emphasized strict adherence to rules and structure as an important part of protecting people in the CROs. “We’re pretty intent on making sure there is that structured approach, because we want the quality of the program and the integrity to be up there and make sure that the program stays client-focused.” 

Harris said the AOC attempts to do annual site visits to court referral offices in addition to financial oversight by independent accounting firms. But it’s not the agency’s job to monitor ADOC’s community corrections programs – because the programs are indeed separate – even many are intertwined administratively.

Community corrections programs, in fact, have far more autonomy than CROs, even when they’re operated by the same people and offer the same services in the same building.

Technically, community corrections must abide by Administrative Regulation 490 to receive funding. ADOC also established basic guidelines, called the Community Corrections Minimum Standards, for programs to follow. Those standards require programs to use state’s risk and needs assessment (ARAS) to establish supervision requirements. The ARAS is an assessment used to evaluate low-risk, moderate-risk and high-risk individuals and suggest subsequent reporting and drug testing frequencies based on individual risk to reoffend or flee, along with other needs. 

But, according to ADOC’s minimum standards for community corrections, the programs are in fact expected to govern themselves. 

Judge Allred had a closeup view of the community corrections program in Walker County, which is set up as a nonprofit charity under the U.S. tax code.

As a judge, he routinely orders people – including some pre-trial defendants – to participate in its programs. Outside his courtroom, he previously served as the unpaid president of the program’s board of directors.

In an interview, the SPLC asked him about a potential conflict of interest.

“You’re saying, if I’m president of the board and I’m looking and I’m saying oh, gosh, we’re in the red this month, maybe I need to send more people here and get our money up,” he said. “And I honestly had not ever thought about that.” 

Some program directors do, however, see a clear conflict in having judges sit on their boards, a common practice. Sheriffs and other local officials also serve on boards. 

“I don’t want judges on the board,” said Cheryl Leatherwood, director of Southeast Alabama Court Services, which operates community corrections programs in four counties. “I think that’s a conflict for them. They shouldn’t be serving on a board for an agency that they’re referring people to.”

The programs are subjected to annual auditing by the Department of Examiners of Public Accounts. Plus, by its own regulations, ADOC is supposed to perform evaluations of each program.

The reality, though, is that ADOC has only four people assigned to oversee 37 community corrections programs. Its latest annual report shows it spent about $263,000 in administrative costs to oversee the programs in 2018.

The SPLC requested all evaluations conducted by ADOC before October 2018 and received only 32 that were conducted between 2014 and 2018. Every program was noted to be in compliance, according to documents, but some evaluations noted various concerns and recommendations. 

In Marshall County, an evaluation conducted May 2018 found that the program was charging residential participants both a $100 registration fee and a $100 fee for administering a required risk assessment. “We suggest that fees should be for the direct costs incurred with the supervision and rehabilitation for an individual offender,” the evaluation says. 

In other words, ADOC officials were questioning why Marshall County was charging $200 for participants just to start the program. 

When the SPLC asked Marcheta Shaw, director of Marshall County’s Community Punishment and Corrections Authority, about the assessment in December of last year, she noted the two separate fees were still in place. “This is the first time that they’ve done one of these,” she said about the evaluation. 

 

Photo by Scott Day

Widespread disparities in fees paid by participants

When Tella Barnett spoke with the SPLC in June, she said she didn’t have the $70 she needed for her next visit to the community corrections program.

“I work at a trailer [manufacturing] plant. I mean, that’s better than working at fast food, but I got three kids that I’m trying to take care of,” she said. “If I didn't have my boyfriend to help me pay for, like, rent and stuff, there’s absolutely no way I would be able to support myself.”

Her boyfriend also helps with the fees, as many other friends and family members across Alabama undoubtedly do. 

“If it wasn’t for him right now, I’d be drowning. That’s just so much money. I wouldn’t be able to eat if it wasn’t for him.”

And yet, if she were simply in another county’s program, the amount she would pay to community corrections could be different. 

Less than 40 miles away, in Cullman County, the community corrections program charges only $15 for a drug test, instead of the $30 that Barnett pays. The program costs $25 for monthly supervision, as opposed to $40. 

On the other hand, in nearby Lawrence County, the community corrections program charges $20 per drug test and a $50 monthly supervision fee.

For programs that offer electronic monitoring services, those costs vary from $360 a month in Lauderdale County to $3 per day, with a $5 initial hook-up charge, in Calhoun County – charges totaling around $95 in a month.

Some counties have ditched the service altogether because of the high cost to participants. “We stopped doing electronic monitoring,” said Nena Shelton, director of the program in Lawrence County in north Alabama. “People wouldn’t pay for it and it wasn’t profitable. It was actually costing us money.”  

The variation in fees and services boils down to what each individual organization needs to stay open. Unlike CROs, whose fees are uniform across the state and established by the Administrative Office of Courts, community corrections agencies can decide what they want to charge.

“Each county has built their program to fit their needs or to fit what they think their needs are, and sometimes you may not get it right,” said Julius Cook, executive director of Shelby County’s community corrections program and the president of the Alabama Association of Community Corrections. “[We’re] trying to make sure that we are treating people fairly along the way.”

Cook’s program provides an example of how much variation there is from county to county.

He oversees a single nonprofit entity that operates the community corrections program in addition to the CRO and specialty court programs. But, unlike many others, the community corrections part is limited to a residential program that currently can house about 130 people. In fiscal year 2018, it received $118,881 from ADOC.

But according to documents reviewed by the SPLC, the program spent $39,661 on building maintenance and $35,967 just on power, including for the residential facility. It also spent $55,461 on automotive costs, which includes transportation for participants to get to and from work. Those operational costs alone were $12,000 more than what ADOC provided. Instead of a monthly supervision fee, residents forfeit 40 percent of their gross income to cover the cost of residing in the facility. On top of that, they’re screened for drugs twice a week at $15 per test.

Some organizations do more than break even.

Court Referral Services Inc. covers Lamar, Fayette and Pickens counties, a lightly populated area in northwest Alabama. It has generated more than $1 million in revenue every year since 2004 and had amassed $1,039,598 in net assets by the end of fiscal year 2017, according to tax filings. There, participants are charged $15 for each drug test, $6 a day for electronic monitoring and a $35 monthly supervision fee in community corrections. The organization also houses the local CRO.

When it comes to fees, there’s little indication that charging $15 for a drug test in one jurisdiction versus $30 in another addresses any need other than generating revenue.

In Jefferson County, participants in the community corrections program pay a flat fee of $35 a month – and nothing more.

That program is overseen by Bailey Davis, director of Justice Programs at the University of Alabama at Birmingham and president of the Treatment Accountability for Safer Communities (TASC), a national association that provides consultation for state and local criminal justice systems with treatment-related programs such as mental health, educational and vocational services. 

Davis believes that community corrections programs in the state should have a common fee structure.

The TASC program at UAB was established in 1973 as a part of national initiative that predated Alabama’s community programs. It was designated as the community corrections program in Alabama’s most populous county in 1994. UAB also oversees specialty courts and pretrial services as a part of its community justice programs. Similar to other counties, the programs do receive support through various sources like the county commission and the Administrative Office of Courts, state and federal grants, but Davis says they keep the lines between the programs clear.  

“I think what you’re referring to is, people are robbing from Peter to give to Paul, and with all that funding blended, they’re probably like, well we’ll put you over here and we’ll use this person for this. That’s not how things work here.”

Davis also said that when someone’s drug screen is positive, the first step isn’t to sanction that person or send him or her back to jail. 

“They can have up to three positives, but, initially, once that first positive comes up, the goal is to engage in case management,” Davis said. “The goal is to get them help. The goal is not to lock them up.”

 

Photo by Scott Day

Work release: “I liken it to a form of indentured servitude.”

Michael Warnack didn’t have the money to post bond, so the judge in Marshall County sent him to the local community corrections organization’s work release program to earn some money.

He might as well have been in jail.

“If I had the money, I could’ve bonded out,” Warnack said. “I wouldn’t have had to go to work release.”

He had been arrested after he failed to appear at a court hearing regarding restitution payments in another case. In the work release program, he lived in a facility with more than 100 other men, with his access to the community severely limited.

He ended up working at a poultry factory. There weren’t many other options.

Warnack said that, typically, after receiving a $400 paycheck, he would have $80 left after paying fees to the community corrections organization along with restitution and child support.

“With what I was making, there was no way I could have saved up for [the bond]. I mean I would sit there until I went to court or, lord willing, somebody comes up with a thousand dollars to bond me out.”

Marshall County’s community corrections program routinely accepts people like him in its work release program. There, the pre-trial defendants live alongside people diverted from prison through community corrections. Their labor generates significant revenue for the organization.

Eight of the 37 community corrections organizations in Alabama have work release programs. In five of them, participants live in a facility operated by the community corrections organization itself. At the other three, they live at the local jail.

State law allows the organizations to keep a portion of the participants’ gross pay. The percentage ranges from 25 percent in Madison County and Marshall County to 40 percent in Shelby County. Instead of taking a cut of their gross pay, Walker County charges people in work release a flat fee of $12 a day for “rent.” Under state law, the organizations must also collect an additional 20 percent of participants’ salaries to go toward their restitution payments and other court costs.

But work release participants generally aren’t exempt from other community corrections fees such as supervision and drug testing. In Walker County, people in work release have simultaneously been ordered to wear ankle monitors that cost them $10 a day. In Marshall County, everyone in work release must pay $200 just to start the program. 

In fact, the Marshall County organization has managed to turn work release into a major revenue source. In fiscal year 2017, the organization generated $1,519,293 in “work release revenue,” according to tax filings. It was more than half the organization’s total revenue, and the amount far outpaced even its biggest expense, the cost of running a state-of-the-art drug testing lab. That lab generated an additional $516,475 in revenue.

The organization ended fiscal year 2017 with nearly $1.7 million in net assets. Marcheta Shaw, the director, earned a salary of $90,103.

The work release revenue comes from more than just the 25 percent cut of the participants’ gross pay, Shaw told the SPLC. It’s also from drug testing fees and a kind of “store” the organization operates for people in work release. Shaw said her organization buys items to sell to the people in the program. “Like when it got cold, we bought them a bunch of long johns and that kind of thing and let them buy that,” she said. “So, we’ll make a few dollars off that.” 

Some of the people haven’t even been convicted of crimes. And it’s not the only place where pre-trial defendants can get trapped in work release.

Community corrections organizations in Walker, Shelby and Lauderdale counties have also accepted pre-trial defendants into work release. In these cases, judges ordered them into the programs in lieu of bond or as a condition of bond. The option allows judges to keep defendants out of overcrowded jails and offer them somewhat less-restrictive confinement.

“In work release in lieu of bond, they can actually bond themselves out. They save up some money and bond themselves out,” said Colette Gulley, a local attorney who handles indigent cases and serves on the board of the Marshall County community corrections organization. She explained that time spent in work release can also count toward her clients’ time served.

But, as Warnack found out, saving up to post bond can be difficult when the community corrections organizations collect a percentage of their salary, charge high fees and enforce payments on restitution and other court fees.

For Shaw and Gulley, the idea is that work release still helps people caught up in the system. “If you put them in work release, they can get a job, it’s a structure,” Gulley said. “A lot of them just need structure. And if they’re in work release long enough then they can figure out a plan when they get out.”

But pre-trial work release in Marshall County raises a red flag for Martin Horn, the executive director of the New York State Permanent Sentencing Commission and an expert in jail reform. 

“That sounds like penal servitude,” Horn told the SPLC. “That is problematic. The purpose of these [pre-trial] programs ought to be to assist the individual in achieving stability and ensuring they appear for trial.”

The work release programs have detractors among community corrections directors in Alabama, too.

“It deprives an individual the opportunity, first of all, to be with their family,” said Paul Brown, a former Montgomery County community corrections director. “A lot of the time it deprives them of the type of work that might be more efficient and effective in terms of income.”

For a time, Brown considered whether to establish a work release program in his county. He found it too expensive and questioned whether the programs are effective at helping people. In fact, at least one national study found only modest reductions in reoffending for people who participated in work release.

“I liken it to a form of indentured servitude; it kind of looks like that,” he said.

 

Photo by Scott Day

Tracking success

With the intense pressures facing Alabama’s prison system, it’s likely that community corrections programs could soon be expanded in the state.

According to the SPLC’s evaluation of documents prepared for ADOC by each program, the programs already have the capacity to divert nearly 9,000 people from prison. In March 2019, however, they held just 3,618 people, according to ADOC.

In addition, ADOC last year spent only about two thirds of the $14 million that the Legislature appropriated for the programs.

But many questions remain about this patchwork system of locally operated agencies that have little accountability and few state standards.

Among them: How do they judge success?

ADOC’s most recent annual report says 61 percent of the people released from community corrections in fiscal year 2018 were “deemed successful.” About 450 people in the programs were returned to prison for technical violations or new offenses in 2018.

But those numbers are snapshots. They show what happened during each year but they don’t track participants over the entirety of their participation or in the years after they leave.

A number of community corrections directors told the SPLC that they have little way of measuring success.

Some said they try to keep track of recidivism as best they can, but it’s hard to track participants across county lines. Others noted they don’t have the resources or that real determinations of whether a program was a “success,” such as whether a participant keeps a job, are essentially immeasurable.

“I wish,” said Cheryl Leatherwood about tracking success of clients who complete the community corrections program at Southeast Alabama Court Services. “We use MIDAS, which is an AOC [Administrative Office of Courts] program. It doesn’t track squat, and I just don’t have the means to do that right now.”

UAB TASC in Jefferson County, a program that is academic by nature and does have the means to devote resources to data collection, developed its own database to maintain information about its program participants. According to its 2018 annual report, 382 of the 447 participants who exited its community corrections programs that year completed it, while 34 were charged with a new felony offense. The program also maintains data on employment, education, demographic information, risk-assessment scores and even the drug of choice for participants sentenced to the program on drug charges. 

The program’s director, Bailey Davis, said they’re working on allowing other community corrections programs to use their database system at no cost.  

“The whole thing is so streamlined at this point that our goal, for me at least, being involved with this association is to have a common language,” Davis said. “If you have a common language or at least a common instrument that everyone knows they can trust, look at and see what works and what doesn’t work, DOC is very interested in saying, OK, does this work or does it not? And if they could use one common database, then they could just get the data shot to them.” 

Although a common language is a start, it’s clear a lot more work is needed to mend the broken system that community corrections has become in Alabama over the past few decades.

“There’s a bunch of different variations out there,” Bennet Wright said. “Not-for-profit, a part of the county. Is the CRO and the CCP the same? Are they different? Are they really, in fact, separated? Then the hard issue with the money becomes, if they don’t break even or do better, they’re going to close down. That’s always the elephant in the room with community corrections in Alabama.”

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