Over the last two legislative sessions, the ACLU-PA has been urging state legislators to reform Pennsylvania’s archaic and overly-punitive probation system. Although the probation system itself is complex, the changes needed to fix it are not.
There is a growing body of research on community supervision – how states manage their probation and parole systems – and the cost of those systems to people under supervision, as well as the fiscal burdens they create for taxpayers. Studies abound, such as those from the Columbia University Justice Lab, Council of State Governments Justice Center, and PEW Charitable Trusts, among others. Each of these reports include many of the same recommendations for probation reform, including:
- Limiting the amount of time people can be sentenced to probation (probation “caps”);
- Prohibiting excessive sentencing practices, including prohibiting judges from “stacking” probation sentences (probation terms served back-to-back instead of concurrently) or from imposing “split” sentences (a probation sentence imposed after a period of incarceration);
- Providing mechanisms to reduce the amount of time on probation, including via early termination or sentence reductions for good behavior and/or educational achievements;
- Eliminating burdensome conditions of probation - technical rules that are not themselves crimes, but when violated, often result in incarceration;
- Limiting incarceration for rule violations and prohibiting incarceration for people unable to pay court fines, costs, or restitution.
The most recent addition to this list is a new report co-authored by the ACLU and Human Rights Watch, Revoked: How Probation and Parole Feed Mass Incarceration in the United States, in which Pennsylvania is singled out as one of three states with particularly acute problems in their supervision systems. This report not only calls for many of the reforms listed above, but it arrives at the stark conclusion that probation and parole are significant drivers of mass incarceration in the commonwealth.
When Senate Bill 14 was introduced in 2019, it held real promise for meaningful probation reform. The bill’s provisions mirrored the consensus recommendations drawn from data, evidence, and best practices: capping probation terms, prohibiting “stacked” and “split” sentences, limiting incarceration for violating probation rules, and establishing a process for early termination of probation.
On July 15, the Pennsylvania state Senate passed SB 14, a bill that its supporters argue is an important “first step” towards reforming probation in the commonwealth. But for those familiar with Pennsylvania’s legislative process, they know there have been many first steps. And any second steps only come many years later, if at all.
But in exchange for this “first step,” the amended version of SB 14 guts all of the fundamental, structural reforms proposed in the original bill and changes current law in ways that risk making probation worse in Pennsylvania. As amended, SB 14:
- Eliminates probation caps and instead creates a new type of probation, called “administrative probation,” which will keep people on probation indefinitely until restitution is paid in full, including those who are too poor to make payments;
- Makes it easier, rather than more difficult, to incarcerate people whose probation has been revoked;
- Creates a convoluted and exclusionary process to terminate probation early through hearings called “mandatory review conferences” – an outcome that is far easier to attain under current law;
- Instead of incentivizing good behavior and achievement by reducing a person’s probation sentence, it merely reduces the amount of time until a person’s “review conference” is held.
Pennsylvania remains one of the few states that fails to cap the length of time people can be sentenced to probation, leaving people to languish for years and sometimes decades under supervision. Pennsylvania also has the highest incarceration rate in the Northeast and the second highest percentage of people on probation and parole in the country with one out of every 34 adults in the commonwealth under community supervision, 36% higher than the national average.
The state Senate had a real opportunity to address the underlying problems plaguing Pennsylvania’s probation system. But rather than invite debate about the length of time we keep people under criminal supervision or how probation functions as a pipeline to Pennsylvania prisons, we are now reduced to bickering about provisions on the margins of reform.
SB 14 was considered during the height of Black Lives Matter protests that filled streets throughout the U.S. and beyond. Probation reform is a racial justice issue. Supervision disproportionately impacts Black and brown people and those with limited financial means. In Allegheny County, Black people comprise 13 percent of the population but 42 percent of the supervision population. In Philadelphia, one in every 14 Black people are under supervision.
Black people are also disproportionately likely to be surveilled, stopped, and searched by police — making it more likely to be found in violation of a supervision rule. In Philadelphia, Black residents accounted for 71% of all pedestrian stops in the second half of 2019. And depending on the county, Black people in Pennsylvania are anywhere from two to nearly seven times more likely to be arrested for marijuana possession than white people, despite the fact that Black and white rates of marijuana use are the same.
These disparities result from decades of systemic racial discrimination that leave Black and brown people with fewer resources to successfully navigate and complete supervision, such as financial security, stable housing, reliable transportation, and access to drug treatment and mental health services.
The Pennsylvania Legislature has both an obligation and an opportunity to fix this flawed, failed, and racially unjust system. SB 14 originally attempted to tackle the root problems of probation; but as amended, it barely scratches the surface. As long as “first step” reform never sees a second step, all we are left with is a side step.