Both Hudson and Mill spent more than a decade under supervision by Philadelphia Common Pleas Court Judge Genece Brinkley. The judge found both men in “technical” violation of their probation for conduct that wasn’t criminal, and sentenced them to terms in state prison — punishments Brinkley declared essential “to vindicate the authority of the court.”
And now, both have been released on an emergency basis by the state Supreme Court.
In ordering Hudson’s release Thursday evening on unsecured bail pending the outcome of his appeal, the court said it was taking an unusual step “warranted only when there has been an ‘egregious error’ indicating a need for an exercise of extraordinary jurisdiction.”
Rubin and Mill visited Hudson in prison, paid his court costs, and made his case an example on social media of the need for probation reform. After being freed Friday morning from the State Correctional Institution Phoenix in Montgomery County, Hudson met at a Center City office with his lawyer, supporters and CNN commentator Van Jones, one of the faces of the Reform Alliance lobbying for those changes in Harrisburg.
Hudson, 29, was on probation for a robbery he committed when he was 19, his only criminal conviction. A decade later, he was the stay-at-home father of two young girls with special needs, earning $150 a week working nights as a janitor — but he was repeatedly incarcerated for reasons related to poverty.
He fell behind on child support for his oldest daughter, then was jailed for several months for contempt in Delaware County. After that, he was home for just over a month before Brinkley found him in violation for failing to heed her orders to obtain a “paycheck job," get a GED, and pay his court fees — and sentenced him to a 1½-to-3-year term in state prison.
The judge said Hudson was simply making excuses for not paying the fees.
“I’m struggling out there on the streets,” Hudson pleaded in court. “I keep hearing it every time I come in front of you, ‘I’m not trying.’ How is it I’m not trying?"
In a letter to The Inquirer following the paper’s coverage of Hudson’s case, A. Charles Peruto Jr., a lawyer representing Brinkley, said she is “a tough judge” but “extremely fair and decides cases the very same way many of her colleagues do.”
Both the Philadelphia District Attorney’s Office and the Defender Association, which represents Hudson, agreed the prison term she ordered for Hudson should be overturned. An appeal will likely be argued before Superior Court early next year.
Cheryl Brooks, an appellate lawyer representing Hudson for the Public Defender’s Office, said it’s extremely rare for the court to grant bail pending such arguments. But given the pace at which the legal system works, she said, it was perhaps the only hope Hudson had of coming home before serving the 1½-year minimum term.
In appealing the case to Superior Court, Brooks argued that it was illegal to incarcerate Hudson for nonpayment of his fees without first finding that he had the means to pay them — and further claimed that locking up an individual over court costs constituted an abuse of discretion.
But the case, she said, also speaks to a systemic issue with probation in Pennsylvania.
“There’s this clause in the law which has been causing all the problems,” she said Thursday night. “The phrase is, to vindicate the authority of the court.”
That — along with committing a new crime or posing a threat of criminal behavior — is the only permissible ground in Pennsylvania for incarcerating a probation violator. Brooks argues the phrase was designed to address flagrant disregard for court orders. But some judges, she said, use it as a catch-all to justify incarceration when probationers fall short of their demands. “If I say ‘Jump’ and you don’t say, ‘How high?’, then I can exercise my power to vindicate my authority," she said.
To her, that’s an abuse. “It’s not really about the court. It’s about society. It’s about justice. It’s about what the court is doing in the interest of justice. It shouldn’t be about the court and the court’s ego.”
The DA’s Office, in its filings, agreed that Hudson’s incarceration was not necessary. It noted nonpayment of court costs "is not a valid basis for probation revocation, and it was virtually impossible for defendant to satisfy the other conditions of his probation within the time allotted.”
Advocates for the Reform Alliance are hoping Hudson’s case will be one more nudge toward broader change in Harrisburg.
Early this week, Gov. Tom Wolf convened a bipartisan group of lawmakers and advocates to urge prompt action on probation reform bills that were proposed this year in both the House and Senate, but that have proved difficult to dislodge from the chambers’ respective judiciary committees.
On Monday, the governor led a bipartisan group of lawmakers and advocates to call for prompt action on probation reform bills that have been languishing without action in the Senate and House judiciary committees.