McNeil v. Community Probation Services

Community Probation Services, LLC and PSI Probation, LLC, for-profit probation companies, provide probation services for Giles County, Tennessee. The companies add their own fees and surcharges to the court debts of probationers. Probationers are subjected to invasive drug screens, repeated revocations and extensions of probation and repeated threats of jailing. Every person convicted in General Sessions or Circuit Court of a misdemeanor offense and assigned probation must pay either $25 or $50 weekly respectively. Supervised probation continues until fees are paid in full.  A probationer who pays in full is no longer required to report to the probation company or pay additional fees. Indigent probationers who are unable to pay fees in full either face revocation or extension of their probation with additional fees. Many are forced to use disability checks, food stamps, or sell blood plasma to pay their court debts and probation fees. Plaintiffs allege that CPS and PSI have violated the Racketeer Influenced and Corrupt Organizations Act by extorting money from plaintiffs in violation of both state and federal law. They also allege that CPS and PSI’s direct pecuniary interest in the fees charged for probation violates due process and that by treating those who can immediately pay fines and fees differently from those who cannot, defendants violate equal protection.


The District Court granted Plaintiffs’ motion for a preliminary injunction. Defendant Giles County and the Sheriff were enjoined from detaining any person on misdemeanor probation based on a secured financial condition of release (i.e., secured bail amount) on a violation of probation if the warrant were not accompanied by a recording showing that the secured bail amount was imposed after (1) notice to the arrestee and an opportunity to be heard by an appropriate judicial officer and (2) findings by that judicial officer concerning the arrestee’s ability to pay, alternatives to secured bail, and whether pre-revocation detention is necessary to meet a compelling government interest.

The Court found that Plaintiffs demonstrated a strong likelihood of success on the merits of their constitutional claims. It concluded Plaintiffs will suffer irreparable harm—the unconstitutional deprivation of their liberty—absent the injunction. Detention of these arrestees, who are otherwise deemed eligible for release, solely due to the inability to pay the secured bail amount on the arrest warrant can result in loss of work, separation from family, undue pressure to plead guilty, and other negative consequences. This threatened harm outweighs any harm to Defendants or to the public interest. Defendants presented no evidence demonstrating the injunctive relief requested will result in increased danger to the community given that these indigent arrestees are otherwise deemed eligible for release, nor that the release of these indigent arrestees will likely result in their failure to appear for court hearings. Likewise, Defendants did not demonstrate that the costs of alternatives to detention for these arrestees are greater than the costs of incarceration.

  • Equal Protection Claim: The Court determined that heightened scrutiny was the appropriate standard as Plaintiffs demonstrated an inability to afford bail and an absence of meaningful consideration of other possible alternatives to secured bail. Given that (1) the secured bail amounts written on the arrest warrants for misdemeanor probationers are determined prior to arrest, and without an opportunity for the arrestee to be heard or present evidence regarding ability to pay or alternative conditions of release and (2) judges writing in the secured bail amounts do not make factual findings concerning the person’s ability to pay, the necessity of detention, or the adequacy of alternative conditions of release, the distinction created by the current bail system in Giles County between indigent misdemeanor probation arrestees and other arrestees must be narrowly tailored to meet a compelling governmental interest. The complete absence of proof that the current bail system furthered state interests compelled the Court to find that even if it applied rational basis review, Defendants did not show that the current bail system rationally furthered a legitimate governmental interest.
  • Due Process Claim: The Court concluded that the system of setting secured bail was constitutionally deficient for (1) failing to provide notice and an opportunity for the arrestee to be heard and (2) failing to provide oral or written findings regarding the arrestee’s ability to pay, alternative conditions of release, and the need for pre-revocation detention.

On March 20, 2019, Defendant Giles County and the Sheriff appealed the grant of the preliminary injunction to the U.S. Court of Appeals for the Sixth Circuit. On June 14, 2019, the District Court, in the interests of judicial efficiency, granted Plaintiffs’ Motion to Deny or Defer Considering Defendants’ Premature Motion for Summary Judgment. Defendants appealed this order to the Sixth Circuit; on July 29, 2019, the Court granted Defendants’ request to stay discovery, pending the resolution of their appeal, as to the CPS Defendants. However, written discovery involving the non-CPS Defendants was permitted to proceed. On September 13, 2019, the District Court granted in part and denied in part Plaintiffs’ Motion to Deny or Defer Considering PSI Defendants’ Premature Motion for Summary Judgment. It concluded that it served the interest of judicial efficiency for Plaintiffs to file a response to the summary judgment motion and specifically identify the additional discovery needed to respond effectively to Defendants’ motion. Plaintiffs have until October 21, 2019 to do so.

On December 23, 2019, the Sixth Circuit affirmed the District Court’s issuance of the preliminary injunction. Defendant Giles County and the Sheriff had argued that instead of enjoining them from enforcing the arrest warrants, the District Court should have enjoined the judges from issuing the arrest warrants. The Sixth Circuit found that, under Tennessee law, the Sheriff acted for the State of Tennessee when he enforced the bail amounts specified in the warrants and, therefore, was, like the State, entitled to sovereign immunity. But, the court also held that Sheriff’s actions fit squarely within Ex parte Young, 209 U.S. 123 (1908), a state official allegedly engaging in unconstitutional activity. The fact that the judges may also have been acting unconstitutionally does not mean the Sheriff cannot be sued. Accordingly, the Court found that the Sheriff was an appropriate party. Additionally, the Sixth Circuit noted that it is unclear whether Plaintiffs could have sued the judges who set the bail amounts because of judges’ absolute immunity from suits based on their judicial acts. The Sixth Circuit also determined that the suit could proceed against Giles County.

You can find a detailed summary and complaints via the Civil Rights Litigation Clearinghouse. You can also read more about one of the plaintiffs, Karen McNeil.

42 USC § 1983 (alleging due process and equal protection violations); RICO, 18 U.S.C. § 1962 (c) and (d
1:18-cv-00033 (M.D. Tenn.)
April 2018
February 14, 2019
Civil Rights Corps, Hughes, Socol, Piers, Resnick & Dym, Ltd., Barrett Johnston Martin & Garrison, LLC, The Law Office of Kyle Mothershead