The state Senate needs to rework probation reform legislation

As a former public defender in the commonwealth, I know firsthand how important it is to fix Pennsylvania’s broken probation system: In addition to being overly punitive, some parts of the system just don’t make sense. 

There should be two goals to any effort to reform probation in Pennsylvania: making the system less punitive and less complicated. Probation reform should limit the amount of time that a person can be on probation. It should also avoid engulfing defendants, public defenders, probation officers and judges in a process that can lead to more confusion, uncertainty and bureaucratic paperwork.

Unfortunately, the current bill being considered in Harrisburg – Senate Bill 838 – does not stop the revolving door of probation and fails to simplify the system. 

S.B.838 would create a de facto system of debtor’s probation in which a person on probation who is unable to pay court-ordered restitution could remain on probation – with many of the conditions that come with it, like being at risk of resentencing or even jail time for a violation.

This would mean a two-tiered probation system: one for wealthier Pennsylvanians and one for Pennsylvanians living paycheck to paycheck. And, since the majority of those on probation are not wealthy, the creation of a debtor’s probation would ensnare tens of thousands of low-income Pennsylvanians. That’s not how our justice system is supposed to work.  

S.B.838 is also sloppily written, leaving far too many unanswered questions. The bill attempts to create a mechanism for defendants to have their probation terminated during what’s called a “probation review conference.” This is hardly a new idea; current law allows a person on probation to petition the court for early termination of their sentence at any time.

Like any appearance in court, a defendant should have an attorney present for their probation review conference. But what if a person cannot afford an attorney? It seems they should qualify for a public defender. But will a public defender’s office have the resources or capacity to represent anyone in a probation review conference, or only when the court is considering a longer probation term or incarceration? These are crucial questions that S.B.838 fails to address.

There is more vague language in S.B.838 when it comes to technical violations. A technical violation occurs when someone on probation breaks the rules of their probation without committing a crime, like failing to check in with their probation officer. The bill attempts to create a process to better handle technical violations, which would be a laudable effort if the language was clearer. 

Despite the claims of supporters, S.B.838 would not prevent a person from being incarcerated because of a technical violation. While the bill includes a presumption against incarceration for a technical violation, the exceptions to that rule are so vast that most, if not all, of the people I represented as a public defender would have fallen into the exceptions.

There are other ways this bill falls short. It allows people to still be detained when the only allegations they are facing are technical violations. It’s common for a person to be detained for 15 or more days before having their revocation hearing – it is the time between a technical violation being reported and the revocation hearing that a person’s life can be most disrupted. 

The legislation does nothing to address this gap. 

Imagine waiting more than 15 days for your hearing and not knowing whether the judge will revoke your probation, order you to serve more time in jail or resentence you to another term of probation, effectively wiping out any time you already spent on probation. If you have a substance use disorder or a mental health condition, these unknowns increase because the legislation would allow a judge to add up to another 30 days of incarceration while you await an evaluation to participate in treatment or a problem-solving court. 

For an attorney to effectively represent someone, they must be able to advise clients about what could happen at their hearing. If I were still a public defender reading S.B.838, I would not know how many of its aspects were supposed to work, nor could I predict what kind of outcome my client might face, because the legislation simply fails to define key details. 

As a former public defender, I have seen the direct impact that our broken probation system has on Pennsylvanians each and every day. I know how urgent it is that the system be reformed. But I also know that S.B.838 is not the reform bill that the commonwealth so urgently needs, despite the claims of its supporters who desperately want to claim victory and rubber stamp a bad bill as “reform.” The truth is, S.B.838 will not fix Pennsylvania’s convoluted and punitive probation system. 

Veronica Miller is senior policy counsel for criminal legal reform at the ACLU of Pennsylvania. She was previously a public defender in Dauphin County.