Carey Kitchen was not worried when a Douglas County cop pulled him over on a tail light violation last fall. But the traffic stop led to Kitchen’s being handcuffed and taken to jail over an old warrant. Kitchen later learned it was related to his being on probation to pay off a fine for driving on an expired license in 2010. Kitchen was shocked: He was convinced the case had been closed four years earlier.
Not so, Douglas County State Court Judge Neal Dettmering determined, and he kept Kitchen locked up. The 28-year-old lost the first good job he ever had and spent last Thanksgiving behind bars, eating a turkey sandwich with dressing on the side.
With scenes like these in mind, the Georgia General Assembly passed a bill this spring designed to reform Georgia's troubled misdemeanor probation system. The legislation prescribed a gentler and more affordable system, especially for poor defendants whose minor offenses can result in hundreds of dollars in probation fees, threats of jail and months of supervision by private probation companies.
The success of the legislation, which Gov. Nathan Deal is expected to sign into law soon, will depend on the many judges who preside over traffic cases and misdemeanors changing the way they conduct business. Whether the state’s judges will embrace the changes required by the new law is an open question. Many have demonstrated a fierce devotion to the private probation industry, and some have pushed the legal limits in order to crack down on misdemeanor probationers.
The Atlanta Journal-Constitution has found that some judges across the state authorize probation companies to collect and keep questionable fees, while other judges have disregarded higher-court rulings when locking up errant probationers. Georgia judges rely so heavily on probation as a system to collect fines from low-income people that the state has the nation’s highest overall rate of placing people on probation — by far.
Attorney Richard Hamilton got a call after his family friend, Carey Kitchen, was locked up in Douglas County on the probation warrant. Hamilton agreed to help, even though his work mostly involves civil cases, not criminal matters. He was dismayed when he was unable to get Kitchen quickly released on bond and frustrated that getting information about the case proved difficult. He continued to be amazed when Judge Dettmering refused to end Kitchen’s punishment after a Georgia Supreme Court ruling in November prompted almost every other judge to quickly dismiss old probation cases like Kitchen’s.
“My words that I kept coming back and telling Carey and others were, ‘This is outrageous.’ This process is outrageous and it deprived him of his freedom for a silly traffic ticket,” Hamilton said. “What Judge Dettmering did was something I had never experienced before in 21 years of practice.”
Dettmering declined to comment for this story, as did most of the other judges contacted for interviews.
The Atlanta Journal-Constitution observed state and municipal court judges at work in several courts. The newspaper found that judges who hear misdemeanor cases often preside over courtrooms packed with dozens of defendants facing charges that can range from speeding and public urination to shoplifting or DUI. Cases are usually resolved in minutes, often without a lawyer representing the defendant. Probation is one of the few options judges say they have to give people time to pay off steep fines. Lots of people plead poverty in court, and judges have to balance those claims with making sure that people are held accountable for their actions — even when the crimes are small.
Supreme Court ruling ignored?
After imposing a fine for a traffic ticket or other minor offense, many judges across Georgia then ask: Can you pay today? If the answer is yes, you’re done. If it’s no, most judges will use probation as a payment plan. It’s a costly one: It adds $30 or $40 a month in probation fees for the company on top of payments toward court fines.
The judges at Atlanta Municipal Court sent more people to misdemeanor probation than any other court in the state in 2014, according to an AJC analysis of state probation data. The city’s private probation company, Sentinel Offender Services, collected more than $4 million in fines and surcharges for the city in 2014 and opened 12,000 new cases.
“The collections by Sentinel of Court ordered monies are outstanding,” the company declared in a report to Judge Herman Sloan, the Atlanta court’s chief.
When probationers don’t pay, Sentinel brings them back to court. And it is these moments between a judge and an errant probationer that the Georgia General Assembly seeks to change. The legislation will place in state law what the U.S. Supreme Court already ordered back in 1983: If probationers are indigent and their failure to pay isn’t willful, judges can’t lock them up.
In such cases, the new law will require, among other things, that judges convert fines and probation fees to community service or waive them. It will also require that judges hold a hearing and reach a written determination that a failure to pay was willful before revoking probation and sending someone to jail.
While the governor has not yet signed the legislation into law, the 1983 Supreme Court decision was in place when Judge Terrinee L. Gundy heard from three probationers whom Sentinel brought back to Atlanta Municipal Court in March.
Vernon Johnson was on probation to pay off fines for driving on a suspended license and a suspended registration. He still owed $1,496 and told the judge that he had been laid off and had explained to his probation officer he simply did not have the money. Sentinel said he had also missed some probation appointments.
Without much discussion, Gundy ordered him to pay immediately or go to jail for seven days. He went to jail.
The next two probationers were represented by a public defender, who reminded the judge of the U.S. Supreme Court decision. Instead of jail, she sentenced them to “detention work,” which Gundy told the AJC was an alternative program she created where she could sentence people to work at the jail.
Gundy gave Charley Baker 30 days of detention work instead of the $1,368 he owed over driving on a suspended license — which comes out to less than minimum wage. He was later told to come back to court over probation fees, but when he got there he was told that was a mistake and that his sentence would be changed to 10 days’ detention work instead. Baker, who is 61 and lives on a fixed income, was grateful.
Gundy said she is familiar with the requirements of the U.S. Supreme Court decision and doesn’t have a standard way of handling revocations. “I think every case should be decided on an individual basis,” she said.
Gundy can be tough. An Atlanta attorney contesting a stop sign violation said he was given a Failure To Appear when he was three minutes late to her courtroom last year.
Had the struggling probationers landed in front of another judge at Atlanta Municipal Court, things might have gone differently. Every judge at the court has his or her own approach. Judge Gary Jackson will convert fines to community service hours for probationers who are indigent. He credits $20 an hour and allows probationers to work off their fines at the non-profit organization of their choice.
“It should be service but not servitude,” Jackson said from the bench recently.
Pay or jail
Adel Edwards says he was locked up for failing to make a probation payment on the same day his probation started.
Edwards lives in Pelham, a South Georgia city of 4,000. He’s 54 and has an intellectual disability that makes reading and writing difficult. He gets by on food stamps and help from family.
“I ain’t got no income or job,” Edwards told the AJC.
Court records show that Judge Bell gave Edwards a $500 fine for burning without a permit and sent him to the back of the courtroom to sign up with Red Hills Community Probation. Probation fees ordered by Bell would add $44 a month to his total due.
What happened next is in dispute. According to a recent lawsuit filed in federal court, Edwards was told by Red Hills that he had to make an immediate payment on his case or go to jail. Two relatives at court with Edwards signed sworn statements saying Edwards was taken to jail when he couldn't come up with the money and released after a few days, when a friend took $250 to get him out, according to a lawsuit prepared by lawyers from the Atlanta-based Southern Center for Human Rights.
Fred Barber, another plaintiff in the lawsuit, said Red Hills also detained him at Bainbridge Municipal Court until he was able to get a friend to show up at court with enough cash to secure his release. A separate lawsuit filed last month in Grady County Superior Court also alleges a defendant was jailed after failing to pay Red Hills the day he was sentenced at Cairo Municipal Court.
Bell is the judge in Cairo, Pelham and Bainbridge.
Maggie Crutchfield, the CEO of Red Hills, said in an interview with the AJC that initial payments are suggested on the day of court but not required for Edwards or anyone else. The city of Pelham, which was also sued, provided the AJC with the court records for Edwards’ case but said it was still trying to locate jail records.
If Edwards’ story is accurate, the probation company was making the demands in the same room where the judge was holding court. Bell, citing pending litigation, declined to comment for this story.
Judge won’t budge
Carey Kitchen was arrested and held at the Douglas County Jail on the old probation warrant in early November. The judge would not release him before a Nov. 24 hearing on the matter since Sentinel said he had missed probation appointments in 2010 and still owed money. The jail had also forced Kitchen to take a drug test, and he failed it.
The hearing was the Monday before Thanksgiving, which turned out to be a bad day for Kitchen and one of the biggest legal events in years for Georgia’s misdemeanor probation system.
Kitchen argued that Sentinel told him he was done with probation. He was living with family members who also testified that they had no idea Kitchen was wanted. If they had, they would have done something to resolve the matter, his attorney said. In other cases involving Sentinel, probationers have complained that they were picked up on probation warrants they knew nothing about.
But Judge Dettmering didn’t buy Kitchen’s argument that he thought he had completed his probation with Sentinel in 2010.
Kitchen paid off what Sentinel said he owed on the old case — about $800 — but Dettmering said he still had to do more time. The judge ordered Kitchen to serve a total of 45 days in jail and then resume probation after that. Kitchen had already served three weeks waiting for the hearing.
“I was very upset,” Kitchen said. “I thought I was going home that day.”
On the same day, the Georgia Supreme Court stunned the state's probation companies and its state and municipal court judges when it found in a high-profile case out of Augusta that Georgia law didn't authorize misdemeanor probation cases to be put on hold — or "tolled" — if a probationer fails to report as ordered. Judges and probation companies around the state started working overtime during Thanksgiving week, immediately identifying people like Kitchen who were locked up on old probation warrants, releasing them and dismissing their cases.
Although Kitchen spent Thanksgiving in jail, he ended up being released early due to overcrowding, but he was still on probation.
After learning of the Supreme Court ruling, Kitchen’s lawyer filed a motion asking Dettmering to end Kitchen’s case, too. Dettmering didn’t budge was in a small camp of judges who believed they still had the authority to toll cases under common law.
After a January hearing, Dettmering decided the Supreme Court decision didn’t actually require him to end Kitchen’s supervision. Kitchen stayed on probation with Sentinel until March 16.
Dettmering declined to comment, referring the AJC to his order in the case which laid out his legal argument.
Kitchen is just trying to move on with his life and find a job that equaled the full-time position with benefits that he lost while sitting in jail.
Hamilton, Kitchen’s attorney and family friend, is still trying to understand what happened in Douglas County.
“Justice is justice is justice,” Hamilton said. “This is not a just result for this case.”