Abolitionist Law Center

Dec 17, 2021

6 min read

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

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.
  • 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.

Dolly Prabhu, ALC Staff Attorney

Robert Saleem Holbrook, ALC Executive Director

December 17, 2021