I previously wrote about how City of Bothell had decided to privatize their probation department. The City of Federal Way has been using the same private probation department since 2004. Here are the contracts between Federal Way, and Providence Services Corporation. There are some differences between the deal Federal Way struck with Providence Services Corporation, and the deal Bothell struck. For instance, in Bothell, active probation costs the defendant $60 a month, with Providence Services Corporation entitled to $40 of that amount. In Federal Way, active probation costs $55 and Providence Services Corporation gets $39 of that. So Providence Services Corporation has a much more lucrative contract with Bothell than they do with Federal Way. Like privatized jails, privatized probation departments can be very profitable for the company that lands the contract. Should this practice continue?
The idea of bail in criminal case is to give the defendant a financial incentive to stay out of trouble while the case is pending, and to show up for his or her court dates. Most criminal offenses stem from alcohol or drug abuse, so imposing bail often does little to solve the underlying chemical dependency problem. In King County, and other courts around Washington State, many judges are looking to alternatives to bail that specifically address alcohol abuse. For instance, in King County, if a judge believes the defendant suffers from alcohol abuse, the judge may elect to impose a Secure Continuous Remote Alcohol Monitoring (SCRAM) device. A SCRAM device is an ankle bracelet that can detect alcohol consumption through the sweat of the defendant’s skin. If the defendant drinks alcohol, the SCRAM device will report the violation to the court, and the judge can remand the defendant into custody.
As you can imagine, a SCRAM device is not free and typically costs $12 to $15 a day. The question of who has to pay these costs was recently address by the Washington Supreme Court in Stave v. Hardtke. RCW 10.01.160 caps the cost for administering “pretrial supervision” at $150. The law makes sense, because the defendant could ultimately be acquitted of the charge and the law sets an even playing field for both wealthy and poor defendants. If RCW 10.01.160 did not exist, a defendant who is later acquitted (found not guilty) of the charge could be forced to pay several thousands of dollars for the cost of pretrial supervision, with no way to be reimbursed for these costs.
In Stave v. Hardtke, the defendant was required to wear a SCRAM device pre-trial (before he was convicted). The SCRAM device was owned and operated by San Juan County’s probation department. The total cost for the time the defendant wore the SCRAM device pre-trial was $3,972 ($15 a day can add up fast). The County paid this cost up front, but once the defendant was convicted of the charge, the County attempted to get the court to order the defendant to reimburse the County for the costs. The Supreme Court disagreed, and stated that the SCRAM bracelet was effectively “pretrial supervision” under RCW 10.01.160, and that the statute limited the amount the defendant could be forced to pay for the pretrial supervision to $150.
While the logic of RCW 10.01.160’s $150 cap on pretrial supervision makes sense to me, it did not take long for the Washington Legislature to address the court’s decision in Hardkte. On June 15, 2015, Senator Padden introduced Senate Bill 6134. The bill would make SCRAM devices an exception to the $150 cap, allowing counties to recoup the cost of SCRAM regardless of the total cost.
While SCRAM is no doubt a deterrent to those who abuse alcohol, the question remains whether it is fair to impose these costs for supervision on the defendant before they are convicted of a crime? While San Juan County ate the cost of the SCRAM device up front, and sought reimbursement later, most counties in Washington state require the defendant to obtain SCRAM from a private, third party vendor, such as Moon Securities. The private companies require a portion of the total costs up front, so if the person is indigent and has no money, they will not be able to install the SCRAM and will be in violation of the court’s order and remanded back into custody. Furthermore, even if the defendant has the money to initially install the SCRAM, if they miss a weekly payment, they will be in violation of the court’s order and could be thrown back in jail. And since the defendant is having to pay the cost of SCRAM up front and on a weekly basis, if the defendant is ultimately found not guilty of the charge, they will not be reimbursed for these costs. It still remains to be seen whether the Hardtke decision to third party, private SCRAM provider agreements. If it passes, SB 6134 most certainly will disproportionally affect indigent defendants, and also those who are wrongfully accused of the crime.