In a courtroom at Philadelphia’s Criminal Justice Center on Thursday morning, a trial commissioner took the bench opposite an assistant district attorney and a public defender, and waited for the next detainee to appear on screen from the Detention Center, a county jail in Northeast Philadelphia.
Into the plastic seat slid Clifford Hill, 47, who was on probation for a four-year-old drunken-driving conviction but had failed to report to his probation officer since November 2016. The event was a preliminary hearing to determine whether there was cause to believe he had violated the terms of probation, which meant he could be detained in jail until he had a chance to go before a judge who would finally decide the matter in a violation-of-probation hearing.
“I was under the impression I was on non-reporting probation,” Hill explained. But he had completed a DUI class, submitted paperwork confirming that to his probation officer, and called to follow up. “I turned myself in when I learned I had an outstanding warrant on March 7.”
Then, even though it was clear he had violated by not reporting, the trial commissioner agreed to let Hill out of jail pending the resolution of his case.
Six months ago, Hill would not have had the opportunity to explain his situation at that preliminary hearing. Instead, the “hearing” would have been completed outside his presence and behind closed doors, by court staff and paralegals who reviewed the cases on paper only. Detainers were rarely lifted.
But, in a November 2017 letter, Philadelphia’s chief public defender, Keir Bradford-Grey, warned the court that this nominal hearing process was illegal. It ran afoul, she argued, of a series of Supreme Court cases that enshrined the right of probationers and parolees to a timely preliminary hearing when detained for violating conditions of supervision.
Under new rules, proposed last October and published as formally adopted Wednesday, defendants now have a right to participate in a timely preliminary hearing via videoconference, to be represented by a lawyer and in some cases to confront adverse witnesses (though how that would be arranged is unclear, since no testimony is typically given at the hearings).
Since the hearings began on Dec. 5, 467 people have been released at that first hearing, according to a spokesperson for the First Judicial District. Of those, only 17 — or 3.6 percent — failed to appear at their violation-of-probation hearing.
“You need to hear from them — that’s what’s become so clear since we started the hearings,” said Dana Bazelon, who has been handling many of the hearings for the District Attorney’s Office. “They’ll say, ‘I was in custody in Lehigh County and that’s why I wasn’t reporting.’ Or, ‘Look, I was in in-patient drug treatment, and here’s the paperwork.’ Seeing people, having hearings, really does make a difference.”
Providing true preliminary hearings, she said, also serves other functions besides getting low-risk individuals out of jail faster. It allows earlier referrals to drug-treatment assessments, and ensures people don’t languish for an excessive period in jail before going before a judge.
Liam Riley, supervisor of pretrial at the DA’s Office, acknowledged that some judges had pushed back, at least initially.
“I think judges were concerned that people would get out and not show up for court. That’s not what’s happened,” Riley said. In some cases, judges have simply scheduled their probation-violation hearings earlier, to preempt the preliminary hearings altogether.
Gabriel Roberts, a court spokesperson, said the feedback has been that “this new policy is markedly better than its predecessor.”
But other reforms Bradford-Grey urged, like allowing only judges to lodge detainers or preside over preliminary violation hearings, have not materialized. Going forward, probation officers may impose detainers at their discretion, with or without a warrant. And the trial commissioners who run the hearings are not judges or even lawyers, but long-standing courthouse employees.
The Defender Association has entered a standing objection to aspects of the new hearing procedure, including the fact that they are not transcribed or recorded.
A spokesperson for the Defender Association declined to comment.
Defense attorney Paul Messing said what’s missing from the rules is what concerns him most: “It doesn’t really address the problem of detainers being lodged for lower level, nonviolent offenses — contrary to new city policies to reduce the prison population, contrary I think to the positions of all the stakeholders that people shouldn’t be incarcerated when there’s no reason to do so."
Though it’s up to judges to draft the rules, he said, “It seems to me the rules should contain some sort of presumption that, in a lower level or nonviolent offense, no detainer is to be lodged.”