Lawsuit accuses ABK, Vanderburgh County of creating 'debtor's prison,' profiting off poor

EVANSVILLE − A class-action lawsuit filed in federal court Tuesday accuses privately owned company ABK Tracking, Vanderburgh County and Circuit Court Judge David Kiely of conspiring to "extort" money from poor residents.

The lawsuit accuses Kiely of giving ABK’s owner, Danny Koester, who he is friends with, exclusive control over electronic monitoring and drug/alcohol testing for both pretrial and sentenced defendants. ABK has an exclusive, no-bid deal with Kiely, who oversees the county’s probation department.

“ABK is allowed to set and charge exorbitant fees for electronic monitoring and drug/alcohol testing, and, in collaboration with Vanderburgh County police and courts, jail those who cannot afford its fees,” according to the complaint.

The issues were brought to light in a series of Courier & Press articles that were cited in the lawsuit. Beginning in October 2021, the Courier & Press published an investigation into how the arrangement between ABK and the courts led to probation violations and jail time for those unable to pay the high cost of their fees.

The Courier & Press has reached out ABK, Kiely and the county seeking comment. David Jones, attorney for the Vanderburgh County Commissioners, said he had not yet seen the lawsuit Tuesday. Koester said he was out of town and had not read the complaint.

'Puts people in impossible situations':Cost of Vanderburgh probation fees can mean jail

Evansville attorney Jeremy Schnepper and nonprofit law organization Equal Justice Under Law filed the 45-page complaint in U.S. District Court on Tuesday on behalf of plaintiffs William Huggins and Keith Miller, as well as all who have been or will be charged fees by ABK.

Schnepper said he reached out to Equal Justice about ABK after looking through court records at the number of times ABK and the prosecutor's office were asking for defendants' probation to be revoked for non-payment.

"During COVID when the courts were closed so much I was watching a criminal justice documentary and it was on for-profit probation," he said. "I thought I was pretty sure that was happening here. Defendants are being put on ABK and they can't afford it."

In addition to asking for damages to be awarded, the lawsuit seeks a preliminary − and ultimately permanent − injunction to block ABK from charging its fees and incarcerating anyone for nonpayment.

Phil Telfeyan, executive director of Equal Justice Under Law, said privatization of probation services in the United States is one of the organization's top priorities.

"We are seeing the privatization of probation in all regions of the country and we started hearing from people in Indiana," he said. "We definitely believe ABK broke the law. It's egregious. There is extortion. There are threats. There's really nothing good."

The Washington, D.C.-based nonprofit was founded in 2014 to end inequality in the justice system. In 2017, private company Providence Community Corrections and Rutherford County, Tennessee, paid $14.3 million to settle a similar lawsuit filed by Equal Justice Under Law. In that case, the Tennessee county had outsourced its entire probation system to the private company.

ABK customers pay hundreds per month

Huggins paid approximately $2,000 in fees to ABK during three months that he was on electronic home detention as a condition of probation, according to the complaint. However, ABK has repeatedly requested revoking his probation due to his inability to afford its fees. He pleaded guilty to narcotics possession and neglect of a dependent. Superior Court Judge Robert Pigman sentenced him to 300 days suspended to probation through ABK.

Miller is subject to ABK fees as condition of his pretrial supervision since June while his case is pending. He is charged with domestic battery. According to the lawsuit, even though Miller is not charged with an alcohol-related offense, he is required to take in-person breathalyzer tests every day, six days a week, at his own expense − approximately $500 so far.

"(Plaintiff) Miller must pay ABK $7 per day in cash for the breathalyzers, resulting in approximately $168 in ABK fees per month, plus another $40 per month for supervision," the complaint says.

The lawsuit notes that ABK fees are also not the only financial burden on criminal defendants in Vanderburgh County: "Pretrial defendants are charged bail as well as various pretrial supervision fees, and probationers must pay various fees for set-up, administration, and supervision directly to the probation department, which is also overseen by Judge Kiely."

The arrangement between ABK and county courts, the lawsuit alleges, violates defendants’ Constitutional rights under the Fourteenth Amendment. That prohibits state and local governments from depriving people of life, liberty or property and requires states to give equal protection under the law to everyone.

According to the lawsuit: "County courts do not assess supervisees' ability to pay and routinely rubber stamp the revocation requests, whether they came from ABK or from the probation department or prosecutors at the behest of ABK. Thus supervisees are revoked and detained because of their inability to pay ABK's exorbitant fees."

ABK also acts as "as though it were law enforcement" by contacting police directly to conduct arrests without court intervention, the lawsuit alleges.

It says ABK is authorized to send people to jail for failing a drug test without first verifying whether or not it's a false positive, according to the lawsuit.

If a supervisee believes the test produced a false positive, they must pay approximately $40 to retest, in addition to the regular $30 testing fee. And they must do so within three days of the original test.

"In the meantime, ABK will send the person to jail for the (false) positive test, without judicial review," the lawsuit says.

'ABK profits from every person'

As reported by the Courier & Press, ABK's fees are twice as high as those charged in other counties in the region, and participants are threatened with jail if they can't pay cash up front for the testing or fall behind in electronic monitoring fees.

Kiely told the Courier & Press in an interview that he had never sought competitive bids for the services provided by ABK or asked Koester to sign a written contract.  He said the company also pays back to the county an “administrative fee” for every defendant sent to ABK and that the money is used to pay salaries in the probation department.

“ABK profits from every person placed on electronic monitoring and/or drug/alcohol testing. ABK also sends a portion of its profits back to Judge Kiely; the money is used to pay for probation staff salaries and court expenses,” the lawsuit says.

More:Private company ABK's fees top $10,000 for Evansville dad awaiting trial

The lawsuit outlines a system in which the prosecutor’s office and courts, especially Circuit Court where Kiely presides, steer defendants to ABK. Those who can’t pay their fees are threatened with arrest and incarceration. In addition, the lawsuit alleges defendants who can’t afford to pay for electronic home detention are denied that service by ABK, making it a sentencing option only available for those who can afford it and not for everyone.

According to the complaint:

“A person’s financial status determines whether a person will be incarcerated in Vanderburgh County. Defendants in Vanderburgh County can be incarcerated because they are poor.”

It accuses Kiely and the county of allowing ABK to charge whatever it wants in fees and increasing the frequency and length of testing without judicial review:

“The only interest served is financial: to line ABK’s pockets and to pay the salaries of probation staff and the costs of court operations. Vanderburgh County cannot balance its budget by allowing a private corporation to profit off the backs of the county’s poorest residents.”

This article originally appeared on Evansville Courier & Press: Lawsuit accuses ABK, Vanderburgh County of profiting off the poor