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The ACLU is suing Montgomery County, saying it’s illegally jailing people without hearings

The civil-rights organization says the county’s practice of jailing people accused of probation violations without a hearing is illegal, excessive, and destructive.

The Montgomery County Courthouse in Norristown.
The Montgomery County Courthouse in Norristown.Read moreJESSICA GRIFFIN / Staff Photographer

The ACLU of Pennsylvania sued Montgomery County court and probation officials on Tuesday, contending their practice of detaining people accused of even minor probation violations for months without a hearing is illegal, excessive, and destructive for defendants trying to care for children, maintain employment, or manage life-threatening health conditions.

The lawsuit, filed in Pennsylvania Commonwealth Court, was prompted by The Inquirer’s 2019 series The Probation Trap. The series identified Montgomery County as an outlier in its use of detainers to jail people for violations and in its lack of preliminary hearings for those detained.

“Montgomery County is not providing any kind of assessment as to whether the people who are incarcerated there need to be incarcerated,” ACLU lawyer Nyssa Taylor said. “Their policy is everyone goes to jail.”

A Montgomery County spokesperson said in a statement Tuesday that the county commissioners agree fewer people should be detained and noted that the county’s jail population was down 35% since 2020. Val Arkoosh and Ken Lawrence Jr., chair and vice chair respectively of the county’s Board of Commissioners, both provided statements emphasizing their support for a proposed state law that would, among other reforms, limit jail stays for probation violators.

“Anyone who is subject to parole or probation deserves every opportunity to participate fully in their community, instead of facing unjust policies that lead to re-incarceration and hurt families,” Arkoosh said in her statement.

The ACLU is seeking class-action status to represent all affected Montgomery County defendants. According to the organization’s analysis, from 2019 to May 2021, the county detained 89% of people accused of violating probation and provided preliminary hearings for just 8% of them. The rest remained in jail until they were resentenced. The average wait in jail for a hearing was 70 days.

Taylor said ACLU lawyers interviewed about 100 people jailed on violations before filing the lawsuit, which besides Gordon names as defendants 38th Judicial District President Judge Thomas M. Del Ricci, Court Administrator Michael Kehs, and Clerk of Courts Lori Schreiber. Throughout that process, the organization repeatedly clashed with the county in court over access to incarcerated people and to basic information about who is in jail. In May, Montgomery County briefly barred ACLU lawyers from its jail, but restored access after the ACLU sued.

» READ MORE: People are locked up indefinitely on probation violations, even when they haven't committed a new crime (from December 2019)

Those who spoke with the ACLU said they had not had a preliminary hearing to show probable cause of a probation violation or a hearing to determine whether detention was necessary, rights repeatedly affirmed by the U.S. Supreme Court.

Instead, they were told that the preliminary hearing had been replaced by a meeting with a probation officer, Taylor said. By the time they finally got the chance to see a judge months later, most pleaded guilty because it seemed the fastest way out of jail.

The six named plaintiffs include Eboni El, a woman with end-stage kidney disease who requires dialysis every other day. El was on Montgomery County probation in 2018 when she was arrested in Philadelphia for marijuana possession and driving while intoxicated. She was released from jail in Philadelphia, but stopped reporting to probation for fear she would be locked up in Montgomery County and wouldn’t be able to access needed health care, she said in an affidavit. She was detained in August 2021, and described her health as rapidly deteriorating in jail.

David Krah was arrested for drug possession in Philadelphia, and released without posting bail. That arrest somehow triggered a violation of probation for possessing drug paraphernalia in Montgomery County back in 2011 — a case Krah believed had been resolved long ago. Krah said in an affidavit that he was given a choice: plead guilty to the violation and be released on probation again, or stay in jail until the new case is resolved. “I didn’t do anything wrong, and I don’t want to plead guilty,” he wrote, adding that he was assaulted in jail. “I am desperate to return home to my job, my family, and my life.”

» READ MORE: Judges recognize addiction is a disease — but instead of treatment many prescribe probation or even incarceration

Another man, Sung Joo Lee, was sentenced to 48 hours in jail and a year’s probation for driving while intoxicated in Tennessee in 2019 — but then shipped back to Montgomery County in August 2021 because that DUI had violated his probation for a 2015 drug case. His first child was born while he was locked up, he said in an affidavit. He agreed to a new, three-to-23-month sentence in hopes he can get home to his family before the end of the year.

Taylor said some Pennsylvania counties, including Chester and Allegheny, have shifted away from such practices, starting with the presumption that detention is not necessary unless a person is shown to be a flight risk. In Montgomery County, the lawsuit alleged, people are sometimes jailed for violating “technical” rules of parole like failing to notify a probation officer of a change of employment or address within 72 hours.

The lawsuit asks the court to find Montgomery County in violation of the Constitution’s 14th Amendment and to compel the county to hold “prompt, constitutionally required” hearings. It also posed an open-ended request for “other equitable or remedial relief as the Court may deem just and appropriate.”