On Oct. 10, the president judges of the Philadelphia courts quietly posted a notice on their website. They had eliminated a rule outlining policies on detainers, orders that can keep people locked up indefinitely if they are already on probation or parole when they're arrested for a new crime.
Since then, lawyers and community advocates have been trying to figure out what that means, as the courts had routinely failed to follow the old rule, which limited automatic detainers to only a small number of very serious violent crimes. Keir Bradford-Grey, chief of the Defender Association, said the resulting practice, in which people were detained automatically even on lower-level offenses, was "unconstitutional."
"It's always interesting when we ask to follow a rule and instead the rule is just rescinded," Bradford-Grey said, "but we're looking forward to what's next."
At a City Hall news conference Thursday marking a different announcement — the elimination of a 30 percent fee on all posted money bail — Leon Tucker, supervising judge of the Common Pleas Criminal Division, said it was too soon to provide details on the replacement policy.
"We're in the process of putting together another rule that will take its place, that will reflect what we're actually doing — that is, lodging detainers only when absolutely necessary," Tucker said.
He said judges lodge detainers primarily for public-safety reasons. However, advocates note that detainers are also often lodged without a hearing against people arrested on lower-level, nonviolent charges. Given that one out of 22 Philadelphia adults is on probation or parole — a rate that makes the city an extreme outlier — these practices affect a vast pool of people. Currently, 55 percent of Philadelphia's jail population is there on a detainer.
Members of the #No215Jail Coalition and the Philadelphia Community Bail Fund said they're fearful that rescinding the rule eliminates the last vestige of protection for those under supervision.
"Rule 910 requires the courts to hold hearings before issuing a detainer on someone for violation of probation or parole conditions," the groups said in a joint statement. "Rather than abiding by this rule and ensuring defendants have some measure of due process before having their freedom taken away, the court has instead chosen to simply eliminate the rule they had long ignored."
Bradford-Grey said she expected to meet with court leadership next week to consult on a new rule. Tucker said the change came in part in response to a letter from the Defender Association decrying the existing process.
"Not only were we not following the rule, but the way we were issuing detainers was unconstitutional as well," Bradford-Grey said. "If people were doing well on probation, why should they be locked up for a mere arrest, when there's still a presumption of innocence? … Contact with the police, especially in certain neighborhoods, should not be the impetus to detain a person without a hearing, without an understanding of whether or not these allegations are even provable."
Bradford-Grey said that to ensure due process, the courts should do away with automatic detainers entirely and instead allow for full, individualized hearings to determine whether a person should be detained pending trial.
However, Tucker said the new rule would likely still include provisions for automatic detainers for the most serious charges, like aggravated assault, robbery, or rape.
He also said that, even for less serious charges, it's reasonable for judges to continue detaining probationers who are not reporting regularly or otherwise complying with probation terms. Is not reporting a good reason to keep a defendant in jail indefinitely pending trial? "Depending on what the underlying case is," Tucker said, " … yeah, most judges would think that."