Escaping the detention trap

The first time José Ribot went to jail in Philadelphia, he couldn’t afford to make bail. The second time he went to jail, there was no bail at all.

It wasn’t because of the severity of his alleged crimes – both were for small-time drug dealing – and Ribot has no history of violence. But he took a plea deal his first go-around to get out of jail after sitting for months, landing years of probation as a result. His second arrest violated the terms of that probation and a judge lodged a detainer order against him – that meant no bail and little hope of release until his case wound its way through Philadelphia’s backlogged criminal courts.

For Ribot, that process would take 18 long months – a year and a half of never knowing when he’d be released or simply transferred to an actual prison, instead of the deteriorating county holding cells in Northeast Philadelphia.

Today, 31 years old and taking courses in social work at the Community College of Philadelphia, he makes no bones about his second arrest, in 2009, for selling a gram of heroin to an undercover cop in the city’s Kensington neighborhood. 

“You grow up poor, you got to take a handout,” he said of his descent into selling drugs after his first arrest left him jobless. “You get tired of living like that. That’s always how it starts. The consequences of that stuff doesn’t deter you when you’ve been living this life.”

But while the city says it reserves detention orders only for the most dangerous probationers and parolees, thousands of detainees like Ribot are taking up a growing number of the city’s critically overcrowded jail cells. Held in place by a judge’s order and stripped of bail, detainees present a stubborn obstacle to the city’s multi-year plan to shrink the county jail population, sponsored in part by a $3.5 million MacArthur Foundation grant.

Reform advocates worry that an overworked probation department and an agonizingly slow criminal trial process are inverting probation’s historical purpose as an alternative to jail for low-level offenders.

“The first arrest could be a minor charge, the second could be a minor charge,” said David Rudovsky, a civil rights attorney who has sued the city over prison overcrowding. “The process is, ‘File a detainer and we’ll work it out later.’ But it’s not a conviction. We’re punishing someone for being on probation and being arrested.”

Ribot said he was hardly alone as a detainee.

“Nearly the whole population up on State Road is on probation detainers,” said Ribot, referring to the cluster of city correctional facilities in Northeast Philadelphia.

A hallway at the Philadelphia House of Correction - Photo by Mark Stehle

It’s not the whole population, but it’s an increasingly large portion. As of June, around 2,800 of the 8,500 inmates in Philadelphia’s county jails – a full third of the city’s incarcerated population – were being held on detainer orders stemming from probation or parole. That’s up from 18 percent in 2009. (In similar cities, like Chicago, fewer than 10 percent of county inmates are held on probation or parole violations.)

Some of Philadelphia’s detainees, like Ribot, have never committed a violent crime. Technical violations, like being late to meetings with probation officers or failing drug tests, can also result in detainers or more probation time as punishment. And even if an individual is ultimately exonerated, they can receive more probation as punishment for simply being arrested in the first place – not an uncommon experience in a city that is also being monitored by federal authorities for illegally profiling minorities.

Court officials in Philadelphia argue that in a city with such a substantial criminal population – nearly 44,000 Philadelphians, or 3 percent of the city’s total population, are on probation at any given time – detainer orders are a crucial security feature. 

“One of the things we ask when you’re on probation is that you not get arrested again,” explained Rick McSorley, deputy court administrator at Philadelphia’s First Judicial District. “These are people who have already been through the entire system and have been found guilty.”

McSorley stressed that, with the exception of certain violent crimes, detainer orders were “not automatic.” While ultimately up to the judge’s discretion, the Probation Department has developed a “risk score,” which helps inform the use of of detention orders.

“The vast, vast majority of people with detainer orders are high-risk,” he said.

However, McSorley later provided Probation Department statistics from May showing that just 31 percent of the city’s current detainer population had, in fact, been deemed “high-risk.” Fifty-seven percent were moderate-risk; the rest were low-risk. Asked for examples of how the scoring system works, McSorley said the factors behind it were too “complicated” to explain.

Yet the nonviolent offenders who are held for extended periods of time on detainers, like Ribot, also contradict the notion the orders are mostly reserved for high-risk offenders. A 2009 Pew study found that 26 percent of detainees were being held on a misdemeanor arrest or lesser charge, with an average length of detention of up to 70 days.

Although McSorley said that study had oversimplified often-complex probation cases, in which offenders can have lengthy criminal backgrounds that contribute to the issuance of a detainer order for lesser charges. But he acknowledged that those ratios have probably remained unchanged seven years later.

A glimpse of one of the cells at the House of Correction - photo by Mark Stehle

Local criminal defense attorneys described the use of detainer orders in Philadelphia as “arbitrary,” and questioned the efficacy of the department’s scoring method.

“I’ve never, ever been able to figure out why, in some of my cases, the detainer gets lodged while in others, it doesn’t,” said Michael Engle, a member of the Pennsylvania Association of Criminal Defense Lawyers. “I’ve had clients over the years who have sat with a detainer for extended periods of time on what I consider to be nonsense cases.”

Part of the system’s reliance on detainer orders is related to staffing. In 1989, a 400-person probation department oversaw 30,000 probationers, then already one of the largest populations of its kind in the nation. Today, the First Judicial District’s caseload has increased by nearly 16,000 offenders, while the department has contracted to just 386 staffers. Although caseloads vary based on an officer’s specialization, with 271 full-time parole officers, that averages out to nearly 169 clients per officer.

That can make some POs more inclined to exercise caution and recommend detention for seemingly risky cases.

“We want to take a few more seconds and take a harder look at these cases, but the volume here is overwhelming,” said McSorley.

While the need for some consequence to probation and parole violations is necessary in any criminal justice system, McSorley acknowledged that the current system “isn’t working.”

“Can we do something more?” he asked. “The answer is, ‘definitely.’ We are looking at not detaining as many people, using electronic monitoring or day centers. But we need more staff to do it, and funds are limited. I want the future of Philadelphia to be one where the crime rate is nonexistent. And we’re not going to get there by incarcerating people.”

Philadelphia Mayor Jim Kenney at the lectern for the MacArthur Foundation grant ceremony - Photo courtesy of City of Philadelphia

That could be slowly changing. The city instituted the “Advanced Review and Consolidation” program last year to combine and expedite certain probation cases. McSorley and other department heads from across Philadelphia’s criminal justice system have been working for years on implementing technological upgrades to expand house arrest or wireless monitoring as an alternative to jail time.

The next item on McSorley’s wish list is a request for proposals to add 600 new wireless and GPS-based electronic monitoring systems to the city’s toolkit to encourage house arrest over jail time for minor offenders.

For years, the city has relied on a small number of antiquated tracking units that require a landline to function. This year’s MacArthur grant will help fuel a long-awaited expansion of that system with modern monitoring equipment. McSorley said that the first round of modernized monitoring systems would be targeted at the city’s larger pretrial population, but the system could expand to probation and parole violators in coming years.

For Ribot, that can’t happen soon enough. He said he took a plea deal that included probation after his first arrest because the district attorney offered it to him as a way to get out of jail without having to cough up money for bail, which he couldn’t afford on a minimum-wage salary. After talking to other inmates during his time in prison, he said he now views probation as “a trap” for poor kids from troubled neighborhoods, where arrests are practically a fact of life. 

“When you get your first case, the thing they offer you is called a ‘six-five split,’” he explained. “It’s six months jail, five years probation. But you’re young, what’s the possibility of you spending five years on probation and getting in no trouble whatsoever?” he asked rhetorically. “It doesn’t have to be a major violation. You did a traffic violation? You get a detainer. Bus is running late when you have to come in? You get more probation. So you could be on probation 10 years later for something that happened when you were 21. They want to keep you in the system.”

That can mean more prison time, not less, in the long run. Speaking after the conclusion of his first college semester, which he enrolled in with help from Community College of Philadelphia’s Re-entry Support Project, Ribot said the system was especially punishing for those with chronic substance abuse problems, who are often repeatedly arrested for drug possession.

The MacArthur reforms are also committed to diverting more probationers and parolees who test positive for drugs during supervision to treatment programs, as opposed to detention. According to McSorley, this is the latest salvo in the debate over whether addiction should be treated as a criminal justice issue or a public health crisis.

“Drug addiction is a huge problem in this city, and you don’t want to incarcerate everybody that has an addiction problem,” he said. “But when they violate, they violate, and we have to respond. I don’t know what the answer is. When do I drop the hammer? It’s a bigger issue than just the local criminal justice system.”