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

EVANSVILLE, Ind. — Jason Skelton is still paying, in ways he never imagined, for the heroin and fentanyl overdose that put him in the hospital nearly three years ago.

The 33-year-old Evansville resident and National Guard veteran pleaded guilty to possession, a low-level felony, and should have completed a year of drug and alcohol probation in early 2020.

The odds against that, Skelton now believes, were higher than he realized.

Skelton is one of many in Vanderburgh County and across the country facing similar struggles with paying the costs of their sentences as some counties privatize their probation services. Out of about 1,611 people currently on probation, about 750 are in programs that require drug and alcohol testing, according to Vanderburgh County Adult Probation. This includes people for whom it is a condition of bond.

Vanderburgh County's courts use privately owned ABK Tracking to provide those tests as well as electronic home detention.

"Probation doesn't have the staff to do all the drug testing. We have to outsource it," said Vanderburgh Circuit Court Judge David Kiely, who oversees the probation department.

It's a system that penalizes people for being poor, sending some to jail for days at a time for false-positive drug test results or not being able to pay testing fees, said Chris Lenn, an Evansville defense attorney.

“These are people who are already in abject poverty, and both them and their families suffer because they were unable to come up with the fees,” Lenn said.

It's not clear exactly how often it happens, because there are a number of ways a defendant in Vanderburgh's court system can find themselves referred for private drug testing or electronic monitoring.

They include:

• Persons convicted of the lowest level of felony can have a judgment converted to a misdemeanor if they complete court requirements such as probation.

• Pretrial diversion programs through the prosecutor's office allow for a person's charge to be dismissed if they meet program requirements.

• A judge can allow someone to serve a sentence on probation instead of incarceration. Individuals can be ordered to serve sentences on electronic monitoring instead of in jail.

• Electronic monitoring can be required for a defendant to remain free before their trial.

An inability to pay these fees can result in people being denied sentencing options that would otherwise be available to them, Lenn said. For those ordered to use ABK's services, failure to pay the fees can result in probation violations and time in jail.

That effectively criminalizes poverty, say advocacy organizations such as the Civil Rights Corps and Human Rights Watch. Vanderburgh County only outsources some probation functions, but the Civil Rights Corps has successfully challenged counties in other states that completely turned probation over to private companies.

"The bottom line is people are being punished for their inability to pay off their court fees," said Allison Horn, investigative supervisor at the Civil Rights Corps.

"It really traps people in cycles of the court system and poverty unnecessarily and puts people in impossible positions."

Company can reject participants

Lenn said that on the same day a magistrate sentenced one of his clients to electronic home detention and drug screenings with ABK, a company case manager rejected the individual as a participant, saying he was incapable of paying the fees.

To use ABK, individuals must prove their income and have a checking account that fees can be deducted from. If they don't make all payments, ABK can report that to the court and have the person removed from the program, which can lead to jail time.

More on ABK: Private company ABK profits from no-bid deal with Vanderburgh County judge

Lenn's client, Dennis Hungate, had pleaded guilty to battery on a law enforcement officer and driving while intoxicated in March. He was sentenced to 2 1/2 years on electronic home detention and required to take random drug tests, all through ABK Tracking.

After ABK refused to take Hungate as a participant, Lenn filed a motion asking the court to determine his client was indigent and make an alternative sentencing arrangement. Before there could be a hearing, a new plea agreement was filed and Hungate was given a new sentence of 2 1/2 years on probation. This time it did not involve ABK.

Lenn said he has seen defendants in Circuit Court asked up front if they could afford the fees for electronic home detention on ABK Tracking, in effect excluding those who can't afford it and resulting in sentences served in Community Corrections, jail or the Indiana Department of Correction.

An Indiana Court of Appeals ruling in a 2005 case from Marion County, Mueller v. State, could shed light on Vanderburgh County's practices, Lenn said. While that case involved a pretrial diversion program run by the Marion County prosecutor, he said he believes the principle is the same – that only allowing defendants the benefits of a criminal justice program if they can pay the fee is unconstitutional.

"The concept that our criminal justice system should be operated as far as reasonably possible without regard to a defendant's financial resources is axiomatic and beyond dispute," the Court of Appeals said in its ruling.

The court ruled that making the fee a requirement violated the equal protection section of the Fourteenth Amendment of the Constitution, which says governments must treat individuals in the same manner in similar conditions and circumstances.

"I never thought electronic home detention was necessary in Hungate's case," Lenn said. "In light of Mueller v. State, I believe that refusal to allow him on electronic home detention would have resulted in a similar ruling.

"That is, either the court provides funding to allow the poor on the program or no one gets ABK home detention."

The fine print

Skelton was sentenced to a year on the county’s Drug Abuse Probation Service and 40 hours of community service by Superior Court Magistrate Donald Vowels in June 2019. Successfully completing probation meant Skelton’s convictions would be recorded as misdemeanors instead of felonies.

What the plea agreement didn’t say, however, was that Skelton would have to pay ABK $30 every week to administer the drug tests required for probation, or that ABK requires payments in cash or directly deducted from a bank account.

The four-page plea included a single sentence about acknowledging "additional charges for any drug or alcohol program services" and agreeing to pay them. Although the order of probation included with it mentioned random drug and alcohol testing, there was no mention of specific costs.

Skelton's probation order said a petition to revoke it can be filed if he violates the terms.

It didn't say that ABK Tracking, a for-profit company, could report him to the probation office to petition the court to revoke his probation if he couldn’t pay the unspecified fees and take the test or could have him jailed immediately for failing a test – even before determining if the result was a false positive.

Skelton’s plea agreement also didn’t say it would be his responsibility to prove a test result was false or that he would only have three days to do it or that he would have to pay the $40 lab fee to retest – in addition to the regular fee – if he wanted to contest it.

"On my first week of probation I had a false positive on my drug test," he said. "I went to jail straight from ABK."

By the time the court received Skelton's lab results determining it was a false positive, he had already spent two days in jail and been released.

Update on Skelton: Evansville man who stopped paying probation fees must now finish sentence in jail

Just days later, Skelton said he failed another drug test, which he also believed was falsely positive.

This time, however, he said he missed his opportunity to contest the result because ABK only kept the urine sample for three days. Skelton said he was released from jail too late to request a retest.

"I got arrested right there on the spot again," he said. "I was in for four days. You shouldn't have to pay for their mistakes."

Danny Koester, owner of ABK Tracking, said the company follows a protocol from the probation department for reporting positive test results to law enforcement.

"That's part of the process that the court tells us to do. If it comes back positive on that test, it depends on the type of drug it is and how long they have been on it. Not everybody is arrested every time," he said.

No money, no test

Skelton found himself unemployed and unable to afford the weekly drug screening and other court-related costs of his probation in the fall of 2019. Finding a job was difficult because of the felony charge.

Without the money, Skelton said, ABK refused to test him. Without the testing, he was violating his sentencing conditions. He said his probation officer told him he would have to spend a weekend in jail.

When the frustrated Skelton didn’t show up to court in December 2019, a bench warrant was issued to arrest him.

Nobody came to find him, and he didn't turn himself in. It was a mistake, he knew, but the longer he stayed away, the more difficult it became to go back.

"There were problems all the time. It was always something. Every time I turned around, I was having to pay ABK for something," Skelton said.

He described his predicament as an "all-around giant ball of stress."

"I can't get a job because of the warrant, but I can't make money to pay the fines I owe because I can't get a job," he said.

Skelton turned himself in to the Vanderburgh County Jail last week after nearly two years of bouncing around between friends' and family members' homes.

He will appear in Vanderburgh Superior Court at 9:30 a.m. Monday for a hearing to revoke his probation. The judge could require Skelton to serve the six-month jail sentence that was suspended as a condition of probation.

Mark Wilson is a reporter for the Courier & Press. He can be reached at mark.wilson@courierpress.com.

This article originally appeared on Evansville Courier & Press: Vanderburgh County probation fees can mean jail for those who can't pay