Privatizing Probation and Parole
Table of Contents
Adapting Bail to Probation and Parole
The commercial bail system used for criminal defendants could make the probation and parole systems function better (lower recidivism) and at the same time reduce costs to taxpayers.
Those convicted of crimes but eligible for probation or early release from prison (parole) could be required to post a financial bond against specified violations of the terms of their probation or parole (reporting regularly to their bondsman, submitting to drug tests, and so on).30 The amount should be set by the courts or parole boards based on the criminal's history, the amount necessary to be a significant inducement to good behavior (which will depend on the criminal's wealth) and the criminal's prospects for a productive, noncriminal life. A typical bond might be $10,000.31
As with bail bonds currently, many criminals would have to seek the help of family and friends to acquire the cosigners and the initial wherewithal to pay the bondsman's fee and receive probation or parole. Another source of funds for parolees would be wages earned while in prison, under a liberalized prison labor system, or paying by installment from wages earned in the free world.32
"If no intimate or any private bondsman will risk money on the criminal, why should the general public risk that person on the streets?"
If no intimate of the criminal or any private bondsman cared enough to risk their own money on the candidate for probation or parole, why should the general public risk that person on the streets? Privatizing the probation and parole systems provides a market mechanism for deciding whom to release on probation or parole and whom to continue incarcerating.
There would be no cost to taxpayers under complete privatization. A flat fee of, say, $500 per year per probationer or parolee for supervision and processing by private bondsmen might be paid privately by the probationer or parolee. Alternatively, the fee might be a percentage of the bond, say 10 percent. Market competition could help to set and adjust these fees over time. There is ample precedent for payment of such fees since a majority of the states already allow local probation departments to collect fees from probationers.33 Persons violating the terms of their probation or parole would forfeit their bond, generating revenues for the criminal justice system, victim restitution and other uses.
Advantages of Private Bonding. A voluntary, privately financed market would be a tremendous help to parole boards and courts in separating promising parolees and probationers from the unpromising. A private bonding system would reduce, though probably not eliminate, the need for probation and parole officers on the public payroll. With their own money at risk, relatives and bondsmen would have a serious financial incentive to supervise their charges with care and assure that the fugitive rate would be low.34 Dropping the absconding or failure-to-appear rates would reduce crime, save the taxpayers money and help restore confidence in the justice system and the rule of law.
Pursuit of those who violate probation or parole would be more effective because, unlike police, bounty hunters have strong incentives to recover fugitives - they get paid only if they get their man.35 In addition, they can go freely to any jurisdiction and use any lawful means to apprehend a fugitive.36 The Supreme Court, in an 1872 decision that is still good law, stated that these powers include the right to pursue a fugitive into another state, arrest him at any time and enter a fugitive's house without a warrant. These powers have been granted to the bail bondsman who guaranteed a defendant's courtroom appearance, but the bondsman can transfer his power to an agent of his choosing.
"There is a trend in at least some states to contract out some aspects of probation supervision to the private sector."
Tentative First Steps in Some States. Although some states explicitly prohibit private supervision of probationers, there is a trend toward contracting out some aspects of probation supervision to the private sector.37 In at least 10 states, private agencies are currently responsible for providing primary probation supervision services for misdemeanor or lower-risk felony cases. Since 1987, the American Probation and Parole Association (APPA) has endorsed "private sector services to enhance or supplement supervision and casework services."38 This open-mindedness to private sector involvement in administering probation contrasts sharply with the hostility of the pretrial service agencies.
The exact details of financial bonding for probationers and parolees would remain open to experimentation. Private surety agents could simply perform financial functions and aid in the apprehension of absconders and fugitives. Under this partial privatization arrangement, public agencies would continue to administer the drug testing, electronic monitoring (both tasks usually contracted to private companies anyway) and other conditions of probation and parole, presumably under a reformed system with increased efficiency, similar to the blended pretrial release system operating in Harris County. Alternatively, and more radically, surety agents and other private contractors would be responsible for performing all or most release and supervisory functions in a privatized parole and probation system.