Probationers and parolees are required to comply with many supervision requirements and conditions of release. Most jurisdictions have a set of standard conditions that apply to all probationers and parolees. Courts are also free to impose additional, “discretionary” conditions that they deem appropriate based on the offender’s crime and their rehabilitative needs. Standard conditions might include abiding by local, state, and federal laws, obtaining or maintaining employment, or reporting regularly to a probation or parole officer.
Often as a standard condition, individuals are also required to pay – and avoid delinquency – on a host of financial obligations, including criminal fines, court fees, and restitution. One common financial condition that is often overlooked, however, is the requirement to pay supervision fees (that is, fees that cover the costs of being on probation or parole). Additionally, probationers and parolees are often required to pay fees for programs (e.g., drug treatment programs) and other “services” required as supervision conditions. The combined expense of these various probation or parole related fees can be quite high and cause significant financial burdens, especially for those with limited income and employment opportunities. These expenses can also place a strain on family members of probationers and parolees, who are frequently recruited to help shoulder the monetary burden when it is too great.
Advocates of supervision and program fees say that they are a fair and reasonable consequence of being on probation or parole. The individuals committed the crime, so it is fitting that they (rather than the tax payers) bear the financial burden of their supervision. Others believe supervision to be a privilege compared to incarceration; a privilege that should be paid for by the supervised individuals. Finally, there is also a belief that supervision fees encourage individuals on probation and parole to be more invested in their own success because they are paying for it.
Perhaps the most concerning aspect of these financial conditions is that there are sometimes serious consequences for nonpayment. Supervising agents in some jurisdictions may be strongly encouraged to focus on collecting these fees. Thus, supervising agents focus more on bill collecting than on ensuring compliance with sentencing conditions or helping to promote offender change to avoid recidivism. Failure to pay such fees may be viewed as a probation or parole violation, which could result in a sanction such as jail time, or worse, revocation. While there are constitutional limitations on incarceration of the poor for failure to pay monetary sanctions, these limitations often do not protect those low-income individuals who are deemed to have some ability to pay, even by borrowing money. These limitations also do not protect individuals under supervision from other forms of punishment, such as extension of the supervision term or imposition of stricter conditions.1
The practice of requiring supervision fees began in the 1930s and is common throughout the country today.2 The imposition, and later collection, of these supervision fees varies greatly between states, counties, offices, and even officers.3 Some impose fees as a condition of supervision, wherein failure to pay may result in a violation or revocation. Other jurisdictions legally separate supervision fees from the conditions of supervision, making revocation or violation solely based on fees forbidden. Within these various systems of supervision fee collection, individual offices and officers may vary in the sternness of collection or the consequences for failure to pay.
There are two common areas of contention on the topic of supervision and programming fees: the revenue they create, and the effect that they have on probationers and parolees. In jurisdictions where budgets are limited, supervision fees represent a significant source of revenue, which ultimately provides resources and programming to the supervised population. In fact, some jurisdictions, such as Minnesota, require that any fees collected for supervision must be directly appropriated to correctional services.4
Critics assert that the costs of collecting fees may be greater than the actual revenue collected. Moreover, any revocations from failure to pay would result in the greater costs associated with incarceration and court appearances. More critical opponents claim that this budgetary reliance on fee collection is an unjust system of profiteering on the backs of the disproportionately impoverished people under supervision. In addition, some question the morality of the determinations of "ability to pay" and the enforcement of collections. In terms of the effect on probationers, proponents of collection note the concept of "buying into a system," where the act of paying for supervision forces probationers to be more invested in their rehabilitation. Critics argue that the imposition of fees is yet another barrier and obstacle, thus setting probationers and parolees up for failure.
The Robina Institute has taken a multi-faceted approach to analyzing this issue. The Institute first studied the legal framework of probation in twenty-one states; part of this analysis included determining how fines and fees are addressed as probation conditions. Currently, the Robina Institute is studying probation and parole practices in the field, and as part of this work, is examining quantitative data related to probation fees and conducting qualitative interviews to capture the perceptions of probation officers and probationers about the impact of these financial obligations. This is a complex and multi-layered issue. Fees may have severe consequences for probationers; yet at the same time in some jurisdictions fees are deeply entrenched in the probation department and account for a significant portion of the budget. In every jurisdiction, supervising agencies have unique financial constraints, and at the same time, the supervised population struggles with its own financial issues. Thus, critics and proponents of fees should agree that every system of financial sanctions could benefit from analysis and reflection of the various components mentioned above.
1Bearden v. Georgia, 461 U.S. 660 at 660-1 (1983) (“If the probationer has willfully refused to pay the fine or restitution when he has the resources to pay or has failed to make sufficient bona fide efforts to seek employment or borrow money to pay, the State is justified in using imprisonment as a sanction to enforce collection. But if the probationer has made all reasonable bona fide efforts to pay the fine and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the probationer are available to meet the state’s interest in punishment and deterrence.”). There are many state cases that extend the holding in Bearden to supervision and/or programming fees. See, e.g., State v. Davis, 769 P.2d 1008 (Ariz. 1989) (en banc); People v. Souffrance, 94 A.D.3d 1024 (N.Y. Sup. Court 2012); Ohio v. Dockery, 933 N.E. 2d 1155 (Ohio Ct. App. 2010); Snipes v. State, 521 So.2d 89 (Ala. Crim. App. 1986).
2 Christopher Baird et al., National Council on Crime and Delinquency, Projecting Probation Fee Revenues: A Revenue Projection Model for Agencies Based on Local Policies and Demographic Data (1986).
3 Robina Inst. of Criminal Law and Criminal Justice, Profiles in Probation Revocation: Examining the Legal Framework in 21 States (2014).
4 Minn. Stat. § 244.18 subd. 6 (2016) (“Use of fees. The local correctional fees shall be used by the local correctional agency to pay the costs of local correctional services.”).