Federal judge considering order on jailing offenders who can’t afford bail

NASHVILLE, Tenn. — A federal judge has heard arguments on whether to order a Tennessee county to stop jailing some people simply because they can’t afford bail.

The issue is part of a larger lawsuit accusing Giles County and for-profit probation companies of using the threat of jail and extended probation to squeeze money out of indigent misdemeanor offenders.

The plaintiffs are five women who claim their probation was so onerous that they sold their possessions and diverted money needed for food, utilities, medicine and rent to pay the fees charged by the probation companies in addition to their court costs. Lead plaintiff Karen Mcneil became homeless while struggling to pay probation and court costs, the lawsuit claims.

A Thursday hearing in U.S. District Court in Nashville had a narrower focus. Judge William Campbell Jr. is considering the case of misdemeanor offenders who are arrested for probation violations and given a predetermined bail that doesn’t take into account their ability to pay.

Attorneys for the women said those who can’t pay can end up waiting in jail for days or even weeks before they have a chance to ask a judge to reduce bail.

In 2015, PCC (also known as Pathways Community Corrections and Providence Community Corrections) and Rutherford County government were sued, accused of punishing low-income people on probation with excessive fees, court costs and jail time.

The lawsuit said PCC regularly threatened jail time or harsher probation terms when people couldn’t pay the private fees. PCC stopped overseeing probation cases nationwide after the lawsuit was filed.

As many as 29,000 Tennesseans were eligible for a cut of a $14.3 million class-action settlement, court records show.

By December 2015, former U.S. District Judge Kevin Sharp ordered the release Rutherford County Jail for nonpayment of court costs and fees. Within two months, the County Commission voted to end the contract with PCC and establish a county-run probation office.

In Giles County, plaintiffs are asking Judge Campbell for an order prohibiting the sheriff from keeping those people locked up unless they have had a hearing to determine whether cash bail is necessary in their specific circumstances and whether they can pay it.

Cassandra Crane represented Giles County and the sheriff’s department at the hearing. She argued the plaintiffs were suing the wrong people.

“If the issue is bonds set without a hearing, those decisions are in the exclusive purview of the court,” she said. She also argued the sheriff’s department is required by law to execute warrants issued by the local judges and doesn’t have the ability to second guess them.

Judge Campbell acknowledged that any injunction would have to be carefully thought out, saying he didn’t want to end up back in court in a week because nobody understood what they were supposed to do.

But he also pushed back against the idea that the sheriff had no authority in the matter, asking Crane what happens after the sheriff executes a warrant. “He takes them to jail,” Crane said. “And whose name is on the jail?” Campbell asked. “Giles County,” Crane said. Campbell said he would rule as soon as possible on the issue.

In the larger case, the plaintiffs are seeking a declaration that the practices of the for-profit probation companies are unlawful and their contracts with the county are void. They also seek unspecified monetary damages and are asking for a jury trial.

In filings with the court, the probation companies have denied the allegations against them and asserted that their conduct, and that of their employees, is proper and lawful.