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Despite Rule Change, Kentucky’s Patchwork Probation System Remains

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Decorative Scales of Justice in the Courtroom

More than a year after the Kentucky Supreme Court issued new rules governing private probation companies, enforcement of those rules -- and the system itself -- remains inconsistent across the state, according to a new report by Human Rights Watch.

The Supreme Court ruling, which went into effect January 1, 2017, created more stringent guidelines for both the judges assigning cases to private probation and the private probation companies themselves. But the decision to use private probation companies still falls to each individual district judge in Kentucky, creating a patchwork system and uneven results, the report found.

The rule change followed a 2016 investigation from the Kentucky Center for Investigative Reporting that found the state was operating probation services in only 18 counties due to budget constraints. In the rest, private companies operated with almost no state oversight, even as they often failed to comply with existing laws and reporting requirements.
( Read: " Inside Kentucky's Unregulated Private Probation Industry")

“Kentucky actually has a good set of rules around private probation, relatively speaking,” said Komala Ramachandra, senior researcher at Human Rights Watch and author of the report. “However, the issue we came across in Kentucky is that the rules aren’t always being followed.”

Private probation is used to monitor low-level offenders in lieu of jail time, and it comes with a monitoring fee that is often more than the state would charge. One of the new rules requires that the companies provide a sliding fee scale and accept pro bono cases when referred by a judge. Kentucky Alternative Programs, the state’s largest private probation company, promises discounts or pro bono services based on a defendant’s ability to pay.

But in April and May 2017, the report found that less than 5 percent of the for-profit company’s clients paid less than the regular rate.

KAP did not respond to requests for comment.

Ramachandra says judges can help ensure that the private probation companies charge probationers based on their means.

“If there is private probation, there should be some ability to ensure that one person isn’t getting a vastly different outcome than someone else from a different judge,” said Ramachandra.

The Supreme Court action raised awareness among judges about the rules surrounding private probation companies -- the new regulations and those already on the books. Some judges stopped using the private companies entirely as a result.

Chief District Court Judge Jeff Dotson stopped using KAP last year, citing the rule that says private probation is only supposed to be used when no government entity, non-profit organization or volunteer can be found to do the job, according to the Boyle County Advocate Messenger. But that’s been a requirement since the last ruling on this issue in 2000.

Dotson couldn’t be reached for comment. He represents the 50th District, which covers Boyle and Mercer counties. The 13th district, which represents Jessamine, Garrard and Lincoln counties, has also phased out its use of private probation.

As a result, KAP has since closed its Danville office, the Boyle County Advocate Messenger reported. Those five counties now rely on the state’s Division of Probation and Parole and local resources to run their probation services.

In the report, Human Rights Watch calls for more state-level involvement to manage some of the county-to-county disparities.

Eleanor Klibanoff can be reached at  eklibanoff@kycir.org and (502) 814.6544.