Probation comes at high price for the poor

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For The Recorder
Published: 12/20/2016 11:27:37 PM

The state’s poorest communities are footing most of the $20 million bill for probation service fees, according to a study from the Prison Policy Initiative.

The report, “Punishing Poverty: The High Cost of Probation Fees in Massachusetts,” looked at the state’s 62 district courts and the combined per-capita income of individuals in each district.

According to the report, nearly three out of four people under state correctional control are on some form of probation. In Greenfield District Court, 572 were on probation as of January 2016.

“If you are one of these 67,000 people (on probation statewide), the state tells you probation is ‘an opportunity for you to make positive changes in your life,’ allowing you to remain in the community, work, and be with family and friends instead of serving time in jail or prison.

“While this may sound like a great deal, it comes at a price,” Wendy Sawyer, policy analyst and the report’s author, wrote.

That price depends on the type of probation an individual receives and how well they are able to follow their conditions and pay the fees. People placed on supervised probation are charged $65 a month while those on administrative probation pay $50 a month.

“It’s not like, ‘Oh, it’s just a $50 or $60 fee every month, no big deal.’ It can actually lead to a lot of debt over time and consequences like incarceration,” Sawyer said.

“You can lose your license. If you can’t pay your fee, it can be a contributing factor of your probation being revoked. It’s just not a little thing, even though it seems like a little thing.”

Expanding fees

The current system of probation fees began in 1988 when lawmakers enacted a monthly fee of one to three days’ net wages for almost everyone on probation, according to Sawyer.

Over the next 20 years, “legislators expanded the fee and limited judicial discretion,” Sawyer wrote. In 1990, the fee was set at $30. In 2003, that number grew to $65 for supervised probation and a separate $21 administrative supervision fee was added. In 2009, facing budget cuts, the state increased the administrative supervision fee to the current $50 level, according to Sawyer.

“The consequences of being unable to pay your fines are pretty steep. You can end up in jail. Legally, that shouldn’t happen — Supreme Court decisions have made it clear that the inability to pay fees should not lead to incarceration — but if people aren’t looking into your inability to pay, then they can’t prove that you aren’t able to pay,” Sawyer said.

Valuable reminder

The matter of those on probation being imprisoned because of the inability to pay was recently on the radar of the Massachusetts Senate Post Audit and Oversight Committee.

Sen. Mike Barrett, D-Middlesex, is chairman of that committee. Reached Wednesday, he called PPI’s report a “very valuable reminder that probation fees are a hugely regressive tax on largely, mostly poor people.”

Founded in 2001, PPI is a nonprofit, nonpartisan organization that researches “mass criminalization” in an effort to expose the broader harm, and sparks advocacy campaigns to create a more just society, according to the organization.

Barrett said he hopes the report will attract interest from state lawmakers. “We need to take another run at the issues supported by PPI’s research,” he said.

“There are any number of fines and fees that come down at the heads of offenders and ex-offenders at the exact moment we ask them to get their life in order,” Barrett said. “These fines and fees make it much more difficult for them to do that.”

In the report, PPI found that probation rates were highest in the poorest parts of the state, and lowest in the wealthiest areas.

“The courts serving the poorest populations have probation rates 88 percent higher than in those serving the wealthiest,” Sawyer wrote.

“As incomes go up, probation rates go down, which means the people who can least afford additional fees are more likely to be on probation and expected to pay up every month.”

At $21,671 combined per-capita income — an average of all incomes in a court’s jurisdiction — Holyoke District Court serves the poorest in the state. Residents in that jurisdiction have the second highest probation rate in the state, with approximately 1,649 individuals on probation per 100,000.

Greenfield District Court ranks 16th, with approximately 1,033 individuals on probation per 100,000. At $30,103 combined per-capita income, the district’s income is nearly 40 percent higher than the Holyoke district’s.

In 28th place, Northampton District Court serves just over 880 probationers per 100,000, with combined per-capita incomes of $34,020.

Fee waivers

Barrett said he was surprised to learn that judges were likely to use fee waivers disproportionately. There is already a system in place meant to help those unable to afford the fees. Massachusetts judges have the ability to waive probation fees but it is used infrequently and unevenly, according to the report.

“More waivers are issued in Newton than in the poorest district court jurisdictions of Massachusetts,” Barrett said. “That is an eye-opener. What that tells me — Newton judges are relatively enlightened and apply them thoughtfully.”

The solution, Barrett said, is not more legislation but rather more judicial training.

“We need to raise awareness among judges about their option of doing good by people,” Barrett said.

Sawyer said poorer communities shouldn’t be paying disproportionately for probation services.

“We’re not legislators, so we don’t have to figure out where the $20 million is going to come from but I do think it shouldn’t be coming from these poor communities,” Sawyer said. “For us, ideally, we wouldn’t have probation fees.”

A more realistic change, Sawyer said, would be to create an exemption for those released from prison and working toward re-entry. The probation fee, she said, is just another kind of impediment for them when they are trying to succeed after being released.

Alternatively, Barrett suggests abolishing “the infamous” $150 public counsel fee.

“You qualify for a public defender, then the state charges you $150 for the privilege,” he said. “That is a burden on the exercise of constitutional rights.”

Eliminating that fee would cost the state $6.9 million, according to Barrett, but would also make sure that those who actually can’t afford to pay the fines get some relief.

Removing the probation fee altogether, he argued, would benefit the poor and the not-so-poor alike.

“The only friend in high places these poor offenders may have is their lawyer,” Barrett said. “To complicate that relationship with a user fee seems really gratuitous.”


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