JESSICA GRIFFIN / Staff Photographer

‘Everyone is Detained’

How probation detainers can keep people locked up indefinitely — even when they haven't committed a crime.

Raquel Scott sighed with relief when Philadelphia prosecutors withdrew charges against her stemming from a domestic dispute this past summer with her older son’s father. She had slapped him during an argument, and a neighbor called the police; uninjured, he declared the whole thing had been blown out of proportion, and refused to testify.

Then, in October, after she’d already beaten the charges, she received a notice to turn herself in at the Montgomery County jail.

The problem was, Scott was still on probation in Montgomery County for a 2015 retail theft. So her Philadelphia charges were flagged as a possible probation violation. That, in turn, had triggered a “detainer” — an order to keep her incarcerated until a judge decided to let her go.

Parole
Release to community supervision after incarceration.
Probation
A sentence to community supervision imposed in lieu of incarceration.

Scott was caught in a system of incarceration that ensnares thousands of Pennsylvanians who are on  parole or probation , trapping them in indefinite detention — sometimes for a week or two, sometimes for longer than a year — with few rights and often without even an allegation that they’ve committed a crime.

JESSICA GRIFFIN / Staff Photographer
Victoria Scott comforts her grandson Jaquan Bennett, 4, at her home in North Philadelphia on Dec. 16, 2019. Raquel Scott, Jaquan's mother, was in Montgomery County Correctional Facility on a probation violation at the time, so Bennett and his older siblings were staying with Victoria Scott.
Detainer
An order to keep a person incarcerated pending some further action in his or her case.
Rate of correctional control
The proportion of the population sentenced to jail, prison, probation,  or parole.

Detainers are one way that probation, designed to keep people out of jail, often ends up doing the opposite in Pennsylvania, where the overall rate of correctional control is the second-highest in the nation. It’s a system that’s largely unchecked by law or state court rules, allowing probation officers and judges to impose their own versions of justice, and leaving those under supervision in a state of constant fear and uncertainty.

Scott had turned herself in Nov. 4, not knowing what to expect. It was a month after that before a hearing was even scheduled. “I didn’t know how long I’d be sitting, waiting for a court date. I’d keep going to the counselor saying, ‘There’s nothing in the computer about me?’ ”

After she was jailed for seven weeks, Scott finally saw a judge — and, in a hearing that lasted just a few minutes, the case was withdrawn. That night, Scott was released to repair the relationship with her three traumatized young children and to salvage her job as a manager at Dunkin’ Donuts, with just a few days to scrape together a decent Christmas, plus January rent.

Judge Gail Weilheimer ordered Scott’s detainer lifted with a word of warning: “If you are having any type of conflict with your husband or anyone else, remember: You’re the one on probation.”

Probation violation
A failure to abide by conditions of probation, from moving without permission to failing to report to using drugs or committing a new crime, punishable by more probation or even incarceration.

Compared with those awaiting trial, people locked up for alleged probation violations enjoy few constitutional protections: They have no right to bail. And while they theoretically have a right to a speedy hearing, there are many permissible reasons for delay and no specified deadline.

JESSICA GRIFFIN / Staff Photographer
Released from Montgomery County jail after seven weeks on an alleged probation violation, Raquel Scott arrived home on Dec. 19, 2019, to hugs from her daughter, Camara Brown, 8, (left), and her son Ra'Kair Spearman, 9. The children's grandmother had taken them in while Scott was incarcerated.

Most will remain incarcerated for weeks or months before they have the chance to see a judge and argue their cases, which often involve minor, nonviolent infractions such as positive drug tests or failure to complete required programs. And by the time they get that chance, many won’t bother to argue — instead accepting any new sentence, often time already served, as long as it means quickly getting out of jail.

“Any time you have someone held in custody, they’re going to be far, far more likely to plead guilty to an open matter,” said Nyssa Taylor, a lawyer with the ACLU of Pennsylvania. “They’re going to be more likely to sign an agreement to waive counsel. Incarceration is by its very nature coercive.”

In Pennsylvania, where 250,000 people are serving sentences of county probation or parole — sentences designed to help them remain lawfully in the community — the number incarcerated on violations has risen rapidly in recent years.

In Philadelphia, the number of warrants to detain accused violators nearly doubled over the last decade — exceeding 20,000 a year in 2017 — a reality that has hampered officials’ efforts to slash the jail population in half. When the city embarked on that goal in 2015, 51% of people in jail at any stage of the legal process had some type of detainer preventing their release. Today, it’s 61%.

The power of detainers is particularly apparent in Montgomery County, where Raquel Scott was locked up.

Michael Gordon, the county’s chief of probation, said jailing violators is a last resort, after all diversion efforts have failed: “We always try to find the least restrictive environment.”

Yet, public defenders said they could not recall a case where a probation violator was not incarcerated.

“Everyone is detained,” said Dean Beer, the county’s chief public defender. “It can be two weeks before we’re even notified that they’re in custody and what their violation is.”

People jailed in the Montgomery County Correctional Facility for probation violations remain there an average of three months before they receive a preliminary hearing, an Inquirer analysis of 1,841 violations from the last three years found. It’s no coincidence, then, that 95% of them waived their rights at that hearing, accepting agreements to be released with time served, plus additional probation or parole. Those who did not waive their right to that first hearing ended up incarcerated an additional two months, on average.

Recently, Montgomery County Common Pleas Judge Gary Silow made that proposition clear to a man who was on probation for a 2016 theft, and violated it by using marijuana and skipping a required drug evaluation. The man, already incarcerated nearly six months on a detainer, balked at a deal that would extend his probation through 2022.

“You take it or you don’t,” Silow told him. “I gotta move on. I got a whole courtroom full of people.”

Given that the offer would get him out of jail right away — whereas a court date for a contested hearing could be months away — the man took the deal.

Though Scott spent 20 days in solitary confinement after an altercation with another woman at the jail, on some days without even leaving her cell for a shower, the most painful part of her incarceration was worrying over her three young children — an 8-year-old daughter and two boys, ages 9 and 4. “I cried every day,” she said.

JESSICA GRIFFIN / Staff Photographer
Raquel Scott adjusts reindeer antlers on her son Jaquan Bennett, 4. She was incarcerated during Thanksgiving and feared she'd miss Christmas with her kids as well, because it was not clear when the detainer holding her on an alleged probation violation would be lifted.

Her mother, Victoria Scott, took the kids into her house in North Philadelphia, friends helped out, and the school after-care staff stepped up after Scott’s child-care subsidy was cut off due to her indefinite incarceration.

On the evening of her daughter’s release, Victoria, who is disabled, rubbed her face with exhaustion as she prepared chicken and rice, settled the kids with a friend, and got ready to collect Scott from the bus station.

To Victoria, the whole thing seemed deeply unfair. She acknowledged Scott had struggled as a young woman and made poor choices, like stealing clothing for her kids. “It used to be horrible back in the day. I couldn’t take it,” she said. “But she changed around so good.”

On the way home, she ribbed her daughter that her young kids had grown up in her absence, one off to the NBA, another a working architect, the third running college track. Then, more serious, she assured her she’d been saving her food stamps so Scott and her kids would have groceries.

She told Scott she still can’t quite understand why she was incarcerated on a dismissed case, when she was just a couple of months from successfully completing probation. “I never would have thought you would’ve sat [in jail] that long,” she said.

JESSICA GRIFFIN / Staff Photographer
Raquel Scott, with her children (left to right) Camara Brown, 8; Jaquan Bennett, 4; and Ra'Kair Spearman, 9, gratefully returned to their Upper Darby home on Dec. 20, 2019. Scott had feared losing the place if she didn't get home from jail in time to pay her January rent.

A System Without Rules

Revocation
The unsuccessful termination of a probation or parole sentence, punishable by more probation or incarceration.

Those held on detainers do have a few defined rights, the U.S. Supreme Court has ruled — namely, the right to two hearings. One is a preliminary hearing, “as promptly as convenient” after being detained, to determine whether there is probable cause a violation occurred. The second is a final hearing on the alleged violation, after which probation can be revoked and a new sentence imposed.

The problem is that Pennsylvania has set no rules governing detainers or detainer hearings. So, courts have arrived at starkly divergent answers to questions like: What is “prompt”? And, what’s a “hearing,” really?

Sometimes people are held for two weeks or three weeks or four months, and it’s hard to get recourse for that.
Nyssa Taylor, criminal justice policy counsel at the ACLU of Pennsylvania

“This lack of clear procedural protections means sometimes people are held for two weeks or three weeks or four months, and it’s hard to get recourse for that,” the ACLU’s Taylor said. “We see very few counties conducting robust [preliminary] hearings.”

When hearings do occur, the basic rights that should accompany them — to hear the evidence against you, to be represented by an attorney — are, in many parts of Pennsylvania, only theoretical.

In Philadelphia, defendants appear by video link from jail for preliminary hearings, and they receive legal representation. But the proceedings typically last less than five minutes. No evidence or testimony is presented. And the hearings are overseen not by judges but by courthouse officials known as trial commissioners, who are typically not lawyers. While the commissioners do release some people pending their final hearings — a review of 3,964 cases found detainers are lifted about 12% of the time — they do not appear to evaluate the substance of the violation. In more than a hundred hearings observed by a reporter, they found probable cause that a violation occurred in every single case.

Compared with other counties, though, Philadelphia does hold these hearings relatively quickly: within 10 days of arrest.

Delaware County aims to hold the preliminary hearing within 14 days. In Lancaster and Bucks Counties, a few weeks or a month are standard. In some counties, where jail stays of 60 or 90 days are the norm for probation violations, the hearings are rarely held at all.

Gregory Mills, who worked as a Dauphin County public defender for 18 years, said he could not recall a client ever having a preliminary hearing. That’s because most people incarcerated on probation violations there already wait 60 to 90 days for their final violation hearings, which take place one week a month in the county jail in Harrisburg. It’s understood that refusing to waive the preliminary hearing would only push that process back a month.

On a December morning, those probation violators were led one at a time in handcuffs into a makeshift jailhouse courtroom, where Judge Richard Lewis presided over probation officers and public defenders crowded around plastic folding tables. None of the dozen people contested the violations, which ranged from committing new crimes to failing drug tests to disrespecting probation officers. Lewis sentenced most to short jail stays or terms of house arrest, followed by more probation.

One 60-year-old grandmother in a wheelchair, who had been convicted of Medicaid fraud in 2018, had been in jail three months when she received a hearing.

Her violations? “She did leave her residence and was found sleeping in her car,” her probation officer said. That counted as an unauthorized change of address, made worse when authorities found a crack pipe in the car. The woman said that the crack pipe wasn’t hers, and that she’d been sleeping in the car only because she’d been accidentally locked out of her house during the chaos of a family emergency. Given her three-month jail stay, Lewis released her with time served, but added more punishment: another year of probation.

In some other counties, despite the constitutional right to counsel, people who are detained have no access to a public defender at preliminary violation hearings.

One is Northampton County, where Patrick Jacino, a father of four and a truck driver from Easton, had been detained several weeks in the county jail, for failing to pay off the $375 in restitution he owed Walmart for a 2018 theft, his only criminal conviction. Jacino did not even know he had a court date until he was brought in for the video conference. And while court records show he actually had been making payments (they’d been credited toward court costs, not restitution), Jacino had no lawyer to make that argument.

In this case, luckily for Jacino, he had something better. Relief flooded his face, an inadvertent swear escaping his lips, as a friend named Randall Piazza shot to his feet in the courtroom, waving an envelope in the air.

“I have $300 today,” said Piazza — money he’d scraped together by calling in favors and loans. He urged the court to let Jacino go. “He has a very good job. He’s about to lose it if he don’t get out soon.”

So, Jacino’s became one of many cases where getting out of jail would come down to resources.

Defense lawyer Wana Saadzoi said that in Delaware County, where she practices most, that’s frequently the case.

“About 5% of people have access to private counsel who have been able to talk to the family in advance, find out if they have a place to go, try to set up treatment, try to get them out on the electronic monitor and show they have the funds for it,” she said. Those who have all that in place are generally released at that first hearing, she said. Everyone else is likely to remain in jail.

Courtesy of family
Stephen Klampfer, seen in a 2011 photograph, was detained in 2018 in Montgomery County, and remained incarcerated until he was killed by his cellmate in April 2019. Both men were schizophrenic and were jailed on probation violations.

Because of the open-ended duration of detainers, those with the fewest resources and least access to advocates occasionally do get trapped in the system.

That happened to Stephen Klampfer, a schizophrenic man jailed in Montgomery County for a probation violation after failing three drug tests. By the time he saw a judge two months later, he’d lost his housing. The judge ordered him released pending the verification of a new address — a requirement in Montgomery County that delays release for many who are on probation or parole — but no address was identified and he was never released.

Instead, nine months later, on March 30 of this year, Klampfer’s cellmate, another schizophrenic man, pulled him from the bunk where he was sleeping and beat him to death.

It’s hard to say how many people brought in on detainers remain in jail for days, weeks, or months after they should have been released.

One Philadelphia man sat in jail a week last December before being released after a reporter raised questions; it turned out a detainer had been lodged in error.

It’s a large enough concern that the Defender Association of Philadelphia has designated a staffer to check each Saturday morning on those ordered released by Friday, making sure no one was left behind.

JESSICA GRIFFIN / Staff Photographer
Sayon Brown sits on his front porch in North Philadelphia, in a rare moment when he's not in school or at work. Brown sold drugs for several years and, though he's now left that behind, remains on probation through 2027. He said when he was detained, he had no choice but to plead guilty.

Guilty Until Proven Innocent

Being locked up for any amount of time is disruptive, often causing people to lose their homes, their jobs, even custody of their children. But detainers present a particular peril for individuals accused of new criminal charges — who often find they provide an irresistible incentive to plead guilty.

That’s what happened to Sayon Brown, 24, who was first arrested on a drug charge while he was still in high school. Looking back, that arrest was “like a hex,” he said. “Ever since, I just been in and out.”

Brown admits he sold drugs up until a few years ago — it was the only way he saw his friends making a living. But he eventually realized it wasn’t worth the risk.

Once he was on probation, any subsequent arrest meant he was in two kinds of trouble: staring down both a new criminal charge and a detainer for the potential probation violation. It meant “innocent until proven guilty” no longer applied to him. His choices were accepting a guilty plea or fighting his case at trial, a process that he was advised could keep him in jail for a year or even longer.

In Philadelphia, more than 2,100 people — or 45% of the jail population — are currently in such a predicament, locked up on both detainers and pending cases. On average, they remain at the jail 145 days.

They are often encouraged to consolidate the new charges and the probation violation, plead guilty, and accept a single sentencing date for both — a maneuver commonly known as a “701” after the state rule authorizing it. Those who refuse will typically remain detained until both cases can be resolved.

Brown already had probation for two drug convictions when he was arrested on a new drug-dealing case in 2017. He said he had no choice: He went with the 701, and got out of jail after five months.

“The way they get you,” he said, “is the jail time [you’ll spend on the detainer] is more than what they offer you for the plea.”

Brown, who is from Fairhill, a high-crime and highly policed area of North Philadelphia where some of his friends still sell drugs, said the system can make for a never-ending cycle of probation, detention, and more probation. He’s now involved with PowerCorpsPHL, a work-readiness program, aiming for a career as a welder, but he’ll be on probation through 2027.

JESSICA GRIFFIN / Staff Photographer
Sayon Brown practices welding as a student at Philadelphia Technician Training Institute, on Sept. 4, 2019. He finds the work thrilling, he said. But up until now, his circumstances and justice-system involvement have presented obstacles to pursuing that career.

The Defender Association of Philadelphia this summer filed a legal action arguing that the courts are detaining such defendants illegally, depriving them of their right to bail and unduly pressuring them to plead guilty. The Supreme Court declined to take up the case, but took the unusual step of referring it to the court’s criminal procedure rules committee.

Adrian McGill, a court advocate with PowerCorps, said he’s observed the pressure to plead can be profound. “Oftentimes, we’ve dealt with people who really weren’t guilty, but with what they were facing they didn’t want to take the chance.”

Those detained on a violation in one county with an open case in another often face the longest jail stays of all, with two overlapping legal proceedings that can be freighted with delays when prisoners aren’t transported in time for their various court dates.

One woman, Jamie Rosa, was seven days from completing her parole for a three- to six-month sentence for misdemeanor assault in Lehigh County when a man attacked her with a golf club in Philadelphia. She stabbed him with a pocketknife, and was charged with aggravated assault, a felony. Even though her parents posted $7,500 to bail her out, the Lehigh County detainer kept her in jail for nearly a year.

As the Philadelphia case inched forward, Rosa was shuttled about a dozen times between the two counties. Each time, she was shackled for an all-day journey that would start as early as 3:30 a.m. and end late at night in a new jail environment, with new threats of violence.

Prosecutors offered Rosa a deal for five to 10 years in prison. “It came to the point that I was like maybe I should take the charge,” she said. She lost her job and was kicked out of school, and her girlfriend broke up with her. Her grandmother, who was showing early signs of dementia, no longer recognized her by the time she got home.

“I lost a lot in a year,” she said.

In the end, she was acquitted, and the detainer lifted. In closing out her docket, a Lehigh County clerk finalized her sentence: a maximum of six months, and a minimum that, to account for time served, was nearly double that — 330 days.

The Inquirer’s investigative reporting is supported in part by The Lenfest Institute’s Investigative News Fund. Editorial content is created independently of the Fund’s donors. A listing of Lenfest Institute donors can be found at lenfestinstitute.org. Gifts to support the Investigative News Fund can be made at www.inquirer.com/donate.

JESSICA GRIFFIN / Staff Photographer
Raquel Scott walks with her daughter Camara Brown, 8, in a park near their home in Upper Darby. Scott said she cried every day while she was in jail on a probation violation, worrying about how her kids were adjusting to her absence.

THE PROBATION TRAP

probation trap part 2 thumnail

Living in Fear

Probation is meant to keep people out of jail. But intense monitoring leaves tens of thousands across the state at risk of incarceration.
probation trap part 3 thumnail

Judges Rule

When it comes to probation, Pennsylvania has left judges unchecked to impose wildly different versions of justice.
probation trap part 4 thumnail

Punishing Addiction

Courts recognize substance-use disorder is a disease. Yet some judges continue punishing relapse with ever-longer probation and even prison.
probation trap part 6 thumnail

The Marijuana Paradox

Philadelphia has decriminalized marijuana, but those who get high on probation still risk incarceration.

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