How Probation Limbo Can Crush The Promise Of A Fresh Start

By Matt Fair | January 26, 2020, 8:02 PM EST

Derrell Key is among the Pennsylvania residents living within a probation and parole system that advocates say is plagued by open-ended terms and unnecessary stumbling blocks that can result in jail time. (Matthew Santoni | Law360)

Ask Derrell Key to describe himself and he'll tell you he's a businessman with a growing heating, cooling and ventilation business, a welder in training, and a dedicated father who's stayed largely out of trouble since being released from prison on drug charges seven years ago.

To the commonwealth of Pennsylvania, however, he's just one of a quarter-million people shuffling through one of the most disproportionately congested parole and probation systems in the country, and he's expected to stay that way for another seven years.

In the meantime, he says he's trying his best to comply with the cornucopia of conditions, including curfews and travel restrictions, that often come with probation sentences and to ensure he doesn't end up behind bars again on a noncriminal technical violation of his sentence terms.

"Probation for me has been nothing short of a hornet's nest: an overabundance of stress, inconvenience, all of that," he told Law360. "I've proven over the years that I shouldn't be treated as an animal, I should be treated as a regular citizen."

Pennsylvania, which is one of about a dozen states in the country that doesn't cap the length of probation sentences, offers a case study into the limbo that can result for those in the supervision system. According to researchers and advocates, the lack of a cap in states like Pennsylvania has inadvertently swollen prison populations as a result of noncriminal technical violations of supervision terms.

Data from the Pennsylvania Commission on Sentencing for 2018, meanwhile, showed that 78% of probation revocations in the state that year were a result of such violations of sentencing conditions.

Probation sentences allow offenders to avoid spending time in jail so long as they comply with supervision terms requiring that they not only remain arrest-free but also, for example, pass drug tests and maintain steady employment. Judges in Pennsylvania are also free to tack terms of probation onto the back end of prison sentences in what have become known as "probation tails."

Parole, meanwhile, involves supervision of a person released from prison before reaching the maximum range of his or her sentence.

A recent report from the Columbia University School of Social Work's Justice Lab shows that Pennsylvania has a rate of probation supervision that's nearly 20% higher than the national average and a prison population where a third of inmates are behind bars for violating probation or parole conditions.

"It's a puzzler," said Vince Schiraldi, co-director of the Justice Lab. "It's not like Pennsylvania is some Deep South state that you'd expect would be incredibly punitive, and I suspect there are a lot of people in the state that view probation and parole as an act of mercy and not a punishment. That's one of the tricky things about probation and parole, though — it cuts both ways."

Reform efforts, such as allowing offenders to earn time off their sentences for going without violations, have managed to drive down the number of people under probation supervision in states like Georgia, Arizona and Missouri without significantly impacting re-conviction rates.

Changing the system in Pennsylvania, however, has proven a challenge.

While lawmakers in both chambers of the General Assembly have floated capping probation at three years for misdemeanors and five years for felonies, the limits were ultimately stripped out of a bill as it moved out of committee in the state's House of Representatives last month.

The politically powerful Pennsylvania District Attorneys Association has also come down in opposition to hard caps.

Testifying on behalf of the organization before the Senate Judiciary Committee during a hearing on a proposed reform bill last summer, Dauphin County District Attorney Fran Chardo said mandatory caps threatened to take the teeth out of the supervision system, particularly for offenders with significant drug, alcohol or mental health problems.

"The unintended but very real potential consequence is that the proposed caps may cause probation to become so weak that it would no longer be used as an alternative to incarceration in these types of cases," Chardo said.

In lieu of hard caps, the House bill as amended would require judges to hold so-called probation review conferences after three years for misdemeanors and five years for felonies to determine whether offenders should continue to be subjected to supervision.

According to Chardo's testimony, the PDAA supported the kind of conferences ultimately included in the House bill.

The change was enough to cause the American Civil Liberties Union to withdraw its support for the measure.

"The committee took an effective, much-needed reform bill and made it unrecognizable," said Reggie Shuford, the ACLU of Pennsylvania's executive director. "This is no longer a reform bill."

Meanwhile, a piece of legislation signed into law by Gov. Tom Wolf last month tasks the Pennsylvania Commission on Sentencing with drafting guidelines on terms and conditions of probation sentences, including when to incorporate house arrest or electronic monitoring of offenders.

Currently, Pennsylvania judges are given nearly unfettered control over the length and terms attached to probationary sentences for criminal defendants.

Even when offenders are sent to prison, judges in the state will often tack on probation tails — sentences of probation that begin after a person is released from captivity.

In addition to requiring that offenders stay out of trouble with the law while on probation, the sentences also frequently include conditions that people avoid contact with known criminals, make scheduled payments on any fines or restitution, regularly check in with their probation officers, and abide by curfews and restrictions on travel outside their home counties.

Even when they haven't necessarily committed a new crime, people accused of violating sentencing conditions oftentimes face lengthy jail stays, without the possibility of release on bail, while judges decide whether to revoke their probation.

Researchers say the result, particularly when a person faces a probation sentence of more than five years, is a pipeline that can lead offenders back into the prison system.

"They're a big driver of state prison admissions now," said Marshall Clement, the deputy director of policy and strategic planning for the Justice Center of the Council of State Governments.

He said the most important supervision for offenders happens during the first few years after sentencing, when research shows that recidivism is most likely to occur.

"You've got people with complex sets of housing and behavioral health and employment needs," Clement said. "Those are the people we know that if we focus services on them, it's where we're going to see the biggest reduction in recidivism."

Beyond those first few years, however, researchers say the value of probation sentences drops off precipitously and instead creates a risk of individuals winding up in custody for technical violations including breaking curfew, missing meetings and failing to make payments on court fees.

"Too frequently, what's happening in Pennsylvania is you're making it so long that it gets bothersome — phlegmatic — and it causes resistance," Schiraldi said.

That has certainly been the case for Key, who said the state's draconian probation system had made it a challenge for him to turn his life around after returning home from a five-year prison stint on a slate of drug charges in July 2012.

"When I was in prison, my whole mindset and my focus changed," he said. "I had a plan: Go back to school and get a trade, get a skill where I could work with my hands, and then get a job and make top dollar, and that's what I'm doing now."

But the probation system, he said, has often proved to be a stumbling block.

He pointed to one incident in which he received a call from his probation officer while sitting in a trade school class a few years after he got out of prison.

"He said, 'We're at your house and we need to see you — it's a home visit,'" Key said.

When Key responded that he was in class, he said that his probation officer and three armed policemen in bulletproof vests showed up at school and began asking for him at the front office.

"In my head, I'm like this was all a ploy to try and embarrass me because I hadn't shared this story that I'd just come home from prison," he said. "No one there knew I'd been in trouble."

As he's built up his career as an HVAC technician and welder, a career that he said frequently takes him out of the Pittsburgh area on jobs, he said he's still been required to clear work-related travel with his probation officer.

"Why do I have to tell you if all I'm doing is going out of town trying to make an honest living?" he asked.

Even when he does reach out to his probation officer in instances when work brings him out of town or requires him to be out of the house outside the hours of his curfew, Key said his calls frequently go unanswered.

Schiraldi said this was another unintended consequence of Pennsylvania's system: overworked probation officers left without the resources to effectively manage their swollen caseloads.

"The probation officer ends up having to do a lot of triage," he said. "What's the fastest I can get you out of my office so I can pay attention to the 10% of the caseload that really needs my help?"

In testimony to the state Senate Judiciary Committee on proposed reform efforts in June, a representative from the County Chief Adult Probation and Parole Officers Association of Pennsylvania told lawmakers that swollen caseloads were a major challenge.

According to the testimony, the average caseload for probation officers in the state stood at 108 people in 2017, or more than double the American Probation and Parole Association's recommended caseload.

While efforts to cap probation sentences in Pennsylvania may have stalled, reform measures in other states have borne significant fruit in recent years.

Clement, the CSG Justice Center deputy policy director, pointed to legislation enacted in Georgia in May 2017 that ended the practice of requiring probationers with no other violations for two straight years to remain under active supervision if they still owed fines or restitution.

"They were wasting a lot of resources making people come in for active supervision," Clement said, adding that continued supervision of individuals who still owed money to the courts did not result in increased collections.

As a result of the change, Clement said that the state was able to take between 20,000 and 30,000 people off of active supervision.

Arizona, meanwhile, is among a number of states that have adopted legislation allowing probationers to earn time off their sentences for every month they go without a violation.

In Louisiana, lawmakers passed legislation in 2007 aimed at addressing the amount of time probationers and parolees could be incarcerated for a violation of their supervision.

While the average length of incarcerations for first-time technical violators had previously stood at just over nine months, the state has since set a 90-day limit on jail time and allowed probation and parole officers to impose alternative administrative sanctions, including community service and house arrest.

The result, according to research from the Pew Charitable Trusts, has been a 22% decline in the number of offenders returning to custody for new crimes.

As other states have taken action, however, Key is left counting the days until his probation is finally scheduled to come to an end — Feb. 22, 2027.

"I've lived with the consequences of what I did for years — I've paid for my mistakes" he said. "I think I've overpaid."

--Editing by Aaron Pelc.

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