ALC pushes back against Pennsylvania’s SB 913 citing Senate’s failure to understand bill’s harm, further entrenching community members impacted by state punishment system

ALC Staff Attorney Dolly Prabhu calls for decarceral initiatives including abolishing use of probation detainers and prohibiting incarceration due to technical violations, poverty or homelessness

We are disheartened to learn that Pennsylvania’s Senate Bill 913 was voted out of the Senate on Wednesday, December 15th, in a 46–4 vote on the senate floor. We applaud the four senators who listened to community members and opposed this terrible attempt at Probation reform in Pennsylvania. SB 913 is a so-called probation reform bill. Many of its provisions appear positive at first read, but ultimately SB 913 only sounds good to those unfamiliar with the day-to-day functioning of the probation system. At best, the reforms proposed appear superficial and conditional — they are subject to numerous restrictions and will not assist the vast majority of individuals on probation. In fact, SB 913 will primarily impact rural white Pennsylvania and its impact on Black and Brown communities most impacted by mass incarceration will be negligible. If the objective of legislators was to create a bill that would leave behind Black Philadelphians, they have succeeded with SB 913. For these reasons, the Abolitionist Law Center cannot support this shallow and disingenuous attempt at probation reform.

SB 913 proposes mandated probation review conferences for individuals with lengthy probation sentences. Individuals are eligible for these conferences after 3 years on probation for a misdemeanor or 5 years on probation for a felony. This is an exceptionally long period of time that right off the bat will apply to few, even if they are eligible for the 6-month waiting time reduction. Most individuals on probation for several years or more are on probation due to the imposition of new probation terms after revocation — not necessarily because of lengthy probation sentences. Additionally, eligibility is also subject to many limitations, including not having committed any technical violations in the past 6 months, nor having been previously convicted of certain crimes.

Most importantly, judges already have the authority to terminate probation early. Even if restitution is still owed, many judges will still close out probation if all other conditions are met. Individuals with complete conditions and without restitution owed or new technical or direct violations will likely have no trouble getting off probation, so this proposed reform will do little in reducing the volume of people trapped in long cycles of needless supervision and incarceration. Early termination of probation is already permitted; the creation of probation review conferences may in fact reduce the amount of early termination as judges may rely on this mechanism rather than take action themselves. It may also further confuse what is now a relatively straightforward process of early termination. In some counties, early termination is an institutionalized process that occurs relatively frequently.

The only way this particular provision would be helpful to people is if the stars aligned and all of the following occurred:

• Individuals are sentenced to an uncommonly lengthy period of probation — over 3 years for a misdemeanor or 5 years for a felony. It is far more likely to have a scenario where an individual is sentenced to one year of probation that is revoked and reimposed for several years. These folks in the latter category will never be eligible for probation review conferences.
• Individuals have not been convicted of misdemeanors or felonies in the past 6 months.
• Individuals have not committed technical violations in the past 6 months, which can include missed appointments, possession of a weapon (even with a permit), absconding, not being able to afford mandated programming, or a host of other non-violent actions.
• All fines and restitution are paid. Restitution can often be due to property damage and therefore sometimes 6 figures or more. It can also be owed to entities such as banks or large corporations. Due to their financial circumstances, some folks will simply never be able to pay off even small amounts of restitution. These are some of the folks who end up trapped on probation the longest, due to regular revocation and reimposition of new probation sentences.
• All treatment programs are completed. These programs can be quite expensive and often they must be paid by defendants out of pocket, despite being mandatory (e.g. $75/class for anger management classes, $1000+ for DUI stipulations, etc.). For this reason, folks take a long time to complete certain programs.
• Probation review conferences are actually scheduled when defendants are eligible for them.
• The defendant is aware of when they are eligible for a probation review conference and files a motion demanding one if it does not commence on time.
• The judge overseeing probation is unwilling to or would otherwise not terminate probation early on their own, despite all conditions being met and long-term compliance to probation rules.
• The judge overseeing probation also does not perceive the defendant to be a “threat to public safety” — a vague and highly subjective standard. The commonwealth, victims, and victim advocacy organizations are all notified and may be present to object to early termination.

This is not meant to be a defense of judges or of Probation as it currently functions. Probation is one of the primary drivers of mass incarceration and its scale and power must be reduced to move towards decarceration. Legislation such as SB 913, which offers limited, conditional benefits yet creates a high risk for future harm and entrenchment, is not the way towards this goal. It is a shame that this momentum is not used to advance effective decarceral initiatives, such as advocating for any of the following:

• Ending the use of probation detainers. Probation detainers are orders issued by judges to keep probationers detained pending their Gagnon II hearings, which can take months or even years, based on alleged probation violations that may even be non-criminal and non-violent. In many PA counties, probation detainers are the driving force of incarceration and are the number one reason why people are incarcerated pretrial. While bail hearings are supposed to be where determinations of public safety and flight risk are made, slews of individuals are held pretrial despite bail determinations that permit their release. Addressing probation detainers should be the main priority of any politician interested in criminal justice reform.
• Rather than instituting a convoluted and lengthy process for highly conditional review conferences, simply instituting hard caps on probation length, as many other states do.
• Prohibiting the use of split sentences — periods of incarceration followed by periods of probation. These sentences have become increasingly normalized and have swollen the scale of state supervision.
• Prohibiting the imposition of consecutive probation sentences.
• Prohibiting incarceration for technical (i.e. non-criminal) violations of probation. A sentence of incarceration for technical violations is already rare. It is far more common for folks to be incarcerated pretrial for months or even years while awaiting their probation violation hearings, rather than to be actually sentenced to incarceration. Because it is already uncommon, this reform should be low-hanging fruit, yet this bill even fails to outrightly prohibit this practice.
• Prohibiting revocation for all non-willful “violations” due to poverty or homelessness, such as unpaid fines, unpaid restitution, incomplete programming, etc. Probation keeps people vulnerable to fast-tracked and lengthy incarceration for even non-criminal activity, but poverty is what keeps many people trapped on probation. The only “reform” proposed in this bill that addresses this issue does nothing more than repeat what is already the current state of the law: individuals should not be violated for nonpayment of fines or cost unless a finding of willful nonpayment is made.

Politicians assume that grassroots organizers are the uneducated ones who don’t understand the ins and outs of proposed legislation; in reality, they are the ones who clearly don’t understand the full context or potential impact of the bills that they advance. This bill’s unpopularity is blamed on “bad marketing,” when in reality it is just bad legislation. Legislation is risky — there is always the chance that it may be warped to do more harm than good. To be worth that risk, it must offer at least some guarantee of meaningful decarceration. Unfortunately, SB 913 does not meet that bar, and instead entrenches many of the harmful practices we should be seeking to end.

Dolly Prabhu, ALC Staff Attorney

Robert Saleem Holbrook, ALC Executive Director

December 17, 2021