Why are Pennsylvania judges sentencing people on probation for debts they won’t ever be able to pay?
Jailing people and extending probation for failing to pay costs, fines, and restitution has, according to the ACLU “turned Pennsylvania’s jails into a form of modern debtors’ prisons.”
A decade after he was first sentenced in Philadelphia Common Pleas Court, Maurice Hudson still could not come up with $1,941 in outstanding court costs — and, at a February hearing, it was clear Judge Genece Brinkley was out of patience.
“Each time, he has come back here with excuses,” Brinkley said of Hudson, who at 19 was convicted of a robbery and sentenced to two to four years in prison.
“I’m struggling out there on the streets,” Hudson, now 29, told her. He had come home on probation, gotten married, and become a stay-at-home father of two young girls with special needs. He earned only $150 a week as a part-time janitor. “I keep hearing it every time I come in front of you, ‘I’m not trying.’ How is it I’m not trying?”
To Brinkley, there was only one way to teach Hudson: an additional 1½-to-3-year sentence in state prison. She said it was “absolutely necessary to vindicate the authority of the court.”
Appeals courts have ruled people cannot be incarcerated for nonpayment without a determination that they are actually able to pay. Yet, in Hudson’s case, said Cheryl Brooks, a Philadelphia public defender, “he was essentially jailed for his poverty.”
Hudson’s case illustrates a reality for hundreds of people on probation or parole across Pennsylvania: Failure to keep up with court-ordered payments remains a common reason for judges to revoke supervision and impose more probation, more parole, or even more incarceration, keeping people under court control for years on end.
“It’s an ongoing, systemic problem,” said Andrew Christy, an attorney with the ACLU of Pennsylvania. He wrote, in an amicus brief in Hudson’s case, that the practice “turned Pennsylvania’s jails into a form of modern debtors’ prisons.”
Last year, Hudson spent about six months in Delaware County jail for falling behind on $350 in monthly child support owed to his older daughter. He said the repeated incarceration was a barrier to getting on his feet; he was home just over a month when he was incarcerated again for the probation violation.
Brooks filed an emergency bail petition with the state Superior Court, which ordered Brinkley to rule on it “without delay.” Six weeks later, on Oct. 4, Brinkley denied the petition. Brinkley did not respond to interview requests.
‘When that cycle ends, I don’t know.’
Though poor defendants are entitled to be provided legal representation, that does not mean access to the justice system is free.
Court fees — even for indigent defendants — average more than $1,000 per case across Pennsylvania. The median court costs imposed on indigent defendants in the region range from $537 in Philadelphia County to $1,652 in Delaware County, an ACLU of Pennsylvania analysis found. That’s in addition to fines and restitution the court may impose.
For those who spend years on probation or parole, as Hudson did, costs can pile much higher. In addition to assorted fees — $250 for a DNA detection fund, $50 toward the cost of prosecution, $8 for a judicial computer project, $5 for a firearm training fund — he was assessed almost $800 in supervision fees.
In many cases, these costs appear uncollectible: The ACLU found that among defendants poor enough to be assigned public defenders, court costs were paid in full in just 24% of cases over 10 years. Among non-public-defender cases, 54% had paid in full.
“It tends to be the people who are not paying are the ones who have no ability to pay,” Christy said.
In Philadelphia and other counties, public defenders have been campaigning over the last year for judges to waive court costs for indigent defendants, arguing they are obligated to take defendants’ means into account. That question is now before the state Superior Court, which ruled in September that judges did not have to do so — but recently, unprompted, withdrew that opinion, opting to put the question before a judicial panel for further review.
But costs and fines across Philadelphia and its four suburban counties brought in $273 million over the last 10 years, according to the Administrative Office of Pennsylvania Courts — making them a critical part of courts’ budgets.
And, in some local counties, judges routinely impose punishments on people who can’t or won’t pay, generally without distinguishing between the two.
In Delaware County, dockets show some people have been sentenced 10 times or more on a single case, with sentence conditions emphasizing paying fines, court fees, or restitution. In some cases, the judge threatened detention in the event of a single missed payment. In others, judges promised early termination once costs were paid.
Defense attorney Mike Malloy described court-imposed costs and restitution as the No. 1 reason keeping his clients on probation in Delaware County.
“These guys don’t have employment to pay them off, so they’ll extend the time,” he said. “When that cycle ends, I don’t know.”
If a client were to hire him to handle the violation, he’d request a hearing to evaluate the client’s ability to pay. But anyone who can’t afford to pay court costs, he noted, also can’t afford a lawyer. So, he said, “I can’t remember in Delaware County court the last time a hearing like that took place.”
As a result of this cycle, he said, some of his clients, faced with a term of one to two years in prison, will decline to apply for parole.
“They think: ‘I’ll do the two [years] and then I’m done. If I come out, I’m still under supervision until 2024,' ” he said. “And that’s not the worst decision. That’s a guy who understands the system.”
Michael Raith, who heads Delaware County’s adult probation department, said in an email that probation may be extended for nonpayment of restitution, though not for costs or fines alone. Supervision may also be prolonged because a person has not completed court-ordered programs, which may cost hundreds of dollars.
For instance, a woman in Delaware County, who owed $8,000 in restitution to a car insurance company for a 2008 drunken-driving crash, initially received a sentence of two to six months in jail. But because she was only intermittently making payments, she was resentenced 13 more times, each time adding four more months of parole with the order to pay off the remainder of her restitution.
In Montgomery County, probation officers used to present clients who were in arrears with “paper revocations,” forms agreeing to extend probation due to nonpayment.
For Michael Mastrocola, those agreements kept him on the hook for 20 years for money he could not hope to pay.
Last summer, sitting in a dilapidated trailer, with holes in the floor and a busted chassis, that was stranded in a Quakertown campground, Mastrocola said his court debt had followed him as he drifted from friends’ couches to boardinghouses, to his pickup truck, a tent, and now this trailer.
“If I get gas, I could go to work tomorrow, but then I’m still hungry,” he mused. “Or if I take that money to get food, I have no fuel in my truck. What do they call that, the catch-22? I’m always in it. I’m always in that circle.”
The cycle started in 1998, when Mastrocola stole a box of cash from his mother’s house. “It was a suicide run. The goal was to go out on an overdose,” he said. Instead, he was revived, hauled into Montgomery County Common Pleas Court, convicted of theft, and sentenced to 11 to 23 months in jail, seven years’ probation, and $75,000 in restitution.
He never committed another crime — but at the end of the seven years of transient living, marginal employment and child-support payments, he still owed almost as much as when he’d started. So he signed the agreement to extend his probation seven more years.
Resentencings, conducted en masse
One morning this April in the Bucks County courthouse, a 68-year-old man complained that he barely scrapes by between Social Security and seasonal work. He was told his income was still too high to qualify for a public defender.
So, that morning, he would be among more than 50 people who went unrepresented as they crowded into a courtroom and entered agreements to be resentenced for probation and parole violations, many of them rooted in poverty.
Probation officers stood at the courtroom door, holding clipboards and setting the terms of those agreements: usually, a payment plan, plus months or years of probation or parole.
Then, Judge Rea Boylan took the bench and conducted a mass colloquy, apprising everyone of their rights.
“You absolutely have a right to a violation hearing … ,” she said. “Even if you agree you’re in violation, you do not have to agree to a recommendation. Does everyone here understand what I’ve said?" After a diffuse mumble of affirmation, she called the cases one by one.
A handful of people were in violation for nonfinancial reasons.
But most had not made sufficient payments or had not completed required programming, such as Alcohol Highway Safety School, a $225 course mandated for drunken drivers. Some acknowledged they had not prioritized the treatment programs; others indicated they could not afford them.
In an interview, Bucks County probation chief Christine Shenk clarified that a violation may indicate that the “sentence was too short, or they just didn’t get it done.” She generally does not seek to extend probation for unpaid court costs, instead referring individuals to a separate, civil collections program. “But victim restitution is a condition of supervision,” she said. “If they don’t pay it, we can’t close out a probation. We can’t close out a parole. We don’t have the authority to do that.”
Christy said that restitution is no different from costs when it comes to punishing people: Extending probation is not permitted unless a court finds the non-payment to be willful.
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A woman on her 15th year of probation for a 2003 theft — her only criminal conviction — stepped forward to accept seven more years of supervision.
“Case to close once restitution is paid in full,” the docket noted, ordering payments at a rate of $75 per month toward a total of $40,939. If she continues paying at that rate, she will remain on probation for an additional 45 years, until she’s 104 years old. (That’s not counting the court costs and $35 monthly supervision fees that mount each time her probation is revoked and extended, adding $3,071 to her tab so far.)
Resentencings such as these help explain a curious criminal justice puzzle in Bucks and Delaware Counties. Crime there fell more than 25 percent in the last decade. Yet jail populations held steady, state prison admissions climbed, and probation rosters swelled most of all — up 66% in Delaware County and 73% in Bucks from 2007 to 2017.
“If you get two years’ probation and there’s restitution, they end up being on probation for six, seven, eight, nine, 10 years. They just never get off of it,” said defense lawyer Joe Kelly. “I have one individual that owes $50,000. He keeps paying, but he can’t pay all $50,000. He pays what he can, but it just never ends.”
20 years on probation, then free
Montgomery County, following advocacy from the public defender, has begun terminating probations for some people like Mastrocola who had completed all but their financial obligations. (That doesn’t mean the debt is wiped away, just that Mastrocola can’t be jailed for it any longer.)
For Mastrocola, ending that probation felt finally like a step toward getting his life back. Recently, he’s been staying in a friend’s basement, trying to save up money for his own place and work through his court debt.
He said all those years of transient living have left him estranged from his family, though his oldest son called him not too long ago.
“I think he wanted to tell me he got married,” he said. “I really do have to call him. But I can only reach him through Messenger, because the phone is broken.”
Finally getting off probation, though, has restored his optimism, he said.
“I’m trying to get a happy ending for you. People like happy endings.”