Pennsylvania lawmakers push again to change probation system
Under the bill, probation review conferences would be required after certain periods of time, with a presumption that probation must end unless the defendant poses a threat to public safety, has not completed certain treatment or has not paid restitution under some circumstances.
A judge can also order an end to probation, under the bill.
Probation review cases can be held earlier for good behavior and the bill puts limits on situations where somebody on probation can be incarcerated and for how long.
This measure is nearly identical to SB14, which passed unanimously out of the Senate last session.
SB 14 now changes current law in ways that risk making probation worse in Pennsylvania by making it easier for judges to incarcerate people after revoking their probation, increasing the length of incarceration for technical violations….
A sentence that never ends: How Delaware Co. (PA) probation kept a man locked up through the pandemic—even after his release date
The many paths to incarceration
Take someone who has missed an appointment with their probation officer or mental-health counselor (a so-called technical violation, not a crime). Perhaps they had a good reason—maybe it conflicted with their work schedule, or because their car broke down. A probation officer may choose to consider the facts and be lenient—“just don’t let it happen again”—or they can elect to issue a “detainer” or bench warrant, ordering the violator to jail.
Not many probationers will spend a year behind bars before they get a hearing, as in Kevin’s case. But many, regardless of where they are or what they look like, will experience a severe disruption to their lives—days, weeks, or months of detention without even the option of getting bailed out—leading to a setback that could derail whatever progress they had made since first coming into contact with the criminal-justice system.
In Philadelphia, where District Attorney Larry Krasner recently won reelection campaigning as a progressive reformer, those accused of technical probation violations still spend about three weeks in jail, on average, before they get a hearing with a judge—plenty of time to lose a job, miss a rent payment, and worry about how the kids are going to get to school. In Montgomery County, just outside the city, the average wait is 70 days. That’s more than two months of incarceration before a court even considers whether an alleged violation merits punishment at all.
When that court hearing does come around, the alleged violator is judged differently than other people, regardless of the jurisdiction. In a normal criminal case, the state is required to show, beyond a reasonable doubt, that the accused is guilty. With probation, the standard is far lower: The judge can unilaterally decide to revoke probation, extend state supervision for years, or send someone to jail based on the “preponderance of the evidence.” In plain English, that means a person can be incarcerated if the court believes there’s a 50.1% chance the allegations are true.
And what triggers all this is not always a new arrest, much less a new criminal conviction, but something far more mundane—failing to immediately report a new job, for instance, or breaking curfew because work kept you late.
“What we expect of people who are on probation is quite odd,” Shanda Sibley, a law professor and director of the Systemic Justice Clinic at Temple University, said in an interview. It’s not enough to go back to school and get a job or raise a family—a probationer must never miss an appointment or be late, even if it’s an hour drive away; they must always document their own progress and submit that documentation on time, every time, and never associate with a person who has a criminal record.
“We don’t expect them to behave like normal, law-abiding citizens,” Sibley said. “We actually expect them to behave as super-citizens.”
One mistake can be forgiven, and most probation officers are not eager to send someone to jail over the smallest infraction. But one error can also upend a life. Again, there is discretion.
“We set them up for failure,” Sibley said. A technical violation — breaking a rule, not the law — can lead to a person remaining on probation far longer than their initial sentence called for. And the longer they’re on probation, the greater the chance they will commit a technical violation again, once more resetting the clock.
Under current law, a judge can revoke probation and sentence someone to jail if they have been convicted of a new crime, if their conduct suggests it is “likely” that they will commit a new offense, or simply because it’s deemed necessary to uphold the court’s authority.
Senate Bill 913 would eliminate the last two conditions. Under the bill, a person could only be incarcerated if they have been convicted of another crime or, based on a “preponderance of the evidence,” they are determined to have committed one of six “technical” violations.
The legislation also spells out repercussions: A first violation comes with a maximum sentence of 14 days behind bars; a second comes with up to 30 days of court-ordered incarceration; a third violation can result in a person being incarcerated for the maximum time allowed for the underlying offense that led to their being put on probation—allowing for the possibility that a person who was given an alternative sentence ultimately serves more time behind bars than a judge would have ordered in the first place.
“What we would like to see is a summons process,” Kate Parker, director of policy at the Defenders Association of Philadelphia, said in an interview. That means when someone is accused of a technical violation—a failure to report or failure to submit a letter documenting they completed drug rehabilitation—they get a chance to answer for their behavior before a court instead of first serving a de facto 20-day sentence.
“We’re talking about having folks receive a summons in the mail to come to court and answer for why they didn’t do what they allegedly didn’t do rather than go directly to jail,” Parker said.
Pennsylvania Senate Bill 913
An Act amending Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, in sentencing, further providing for conditions of probation and for modification or revocation of order of probation and providing for authority regarding probation detainers.
Pennsylvania DOC FY22–23 BUDGET
Due to COVID-19 concerns, we have not initiated swift and certain sanctioning (aka “quick dips”) among parole violators. With vaccinations and possible treatments for COVID-19, it is anticipated that we may be able to begin this component in the future.
The data gatekeeper spinning Pennsylvania DOC narrative
As director, Bucklen set about putting a positive public relations spin on the department’s work by partnering with various academic researchers to analyze its innovations. These included a new probation violation program relying on “swift, certain and fair” consequences, and a model of paying halfway-house contractors based on reductions in recidivism. (Prison agencies in other states usually only publish basic reports on demographic data.)