The Philly rule that jails people indefinitely on detainers could get way worse

Annie Jackson was 30 days shy of finishing her probation term for a retail theft in April 2017 when she got arrested again — this time for a crime she says she had nothing to do with. She'd lent a neighbor her car and, when she went to get it back, discovered the neighbor's boyfriend was using it. That's when police showed up. They arrested her when they found the backpack containing drugs and guns he'd left in the backseat.

This April, Jackson, 56, of Northeast Philadelphia, was acquitted on all charges. But she spent most of that intervening year at Riverside Correctional Facility, a county jail — even though the Philadelphia Community Bail Fund had raised $5,000 to bail her out — because of a detainer that was automatically lodged against her for violating probation.

People held on detainers now comprise 55 percent of Philadelphia's jail population. It's been a subject of criticism by reform advocates, who slammed the court for failing to follow its own rule on detainers. Last week, the First Judicial District, which oversees the courts and the probation department, took the surprising step of simply deleting that rule.

In its place, a new draft rule has been submitted this week to the state Supreme Court for review. It does not appear to address critics' concerns, instead eliminating many of the theoretical protections in the previous rule.

>>READ MORE: Philly courts, under fire over detainer rules, simply deleted them. So what's next?

For instance, the old rule required a detention hearing within 72 hours for those held on technical violations; the new rule says the hearing must be "as soon as practicable and within a reasonable time," but fails to specify a timeline. The old rule limited automatic detainers to the most serious, violent charges; under the new rule, it appears that any time anyone on probation or parole is arrested, that person can be subject to a detainer.

"We are very concerned," said Nyssa Taylor, a former Philadelphia public defender who now works on criminal justice policy for the Pennsylvania ACLU. "There's a lack of due process and there's a lack of timeline. It appears to codify what's currently happening and make that acceptable, when we know it's not. Even more troubling, the rule also allows for video hearings, which makes it impossible to actually provide people with an opportunity to be heard."

She said the same problems that come up at video bail hearings — where defendants are unable to consult with their lawyers and frequently prevented from speaking at all — are likely to arise at video detention hearings.

>>READ MORE: Why the ACLU says Philly bail practices are unconstitutional

Martin O'Rourke, a spokesperson for the court administration, said that the rule could evolve. "This is an ongoing dialogue," he said. "We shared this document with the Defender and the DA, awaiting their comment. This is part of an ongoing discussion."

The battle over detainers became public earlier this year when WHYY published a letter from the Defender Association to court leadership calling the detainers "illegal" and urging the court to follow its own rule, which limits automatic detainers to those facing the most serious charges and then only after a preliminary hearing is held.

"Not only were we not following the rule, but the way we were issuing detainers was unconstitutional as well," chief defender Keir Bradford-Grey told the Inquirer and Daily News last week.

She did not respond to requests for comment Thursday, and O'Rourke declined to further discuss how the new rule would be implemented.

One in 22 Philadelphia adults is living under probation or parole supervision, a Columbia University analysis found. That's a large pool of people who could be affected by the new policy, which outlines rules for detention hearings, called Gagnon I hearings.

These hearings, according to current court listings, occur at a courtroom in the county jail, usually a few days or as long as a week after arrest.

Typically, Taylor said, the Gagnon I is mostly a review of paperwork, among a trial commissioner, prosecutor, and defense attorney: The defendant is often not in the room at all, and often no evidence is presented. She said that those hearings don't meet the standard of due process, which would call for a true adversarial hearing before a judge.

The new rule specifies that in a Gagnon I a defendant must be provided the opportunity to appear either in person or by video, and to present evidence.

"Everything depends on the execution," said Temple Law professor Sara Jacobson. "It will be interesting to see whether these hearings will change at all based on these rules. My bet is they're not going to. These rules seem to formalize existing practices."

A defendant held on detainer following that hearing can still file a motion to lift the detainer. If that's denied, she'll have to wait until her case is complete — which can often take a year or more — and then seek a second hearing to have the detainer lifted.

In Jackson's case, she scraped together $500 to hire a lawyer to file a motion on her behalf. The detainer was lifted in December. Only, no one told Jackson, until a reporter reviewed her dockets this week. (Since she still hadn't posted bail, and the bail fund didn't know the detainer was lifted, the jail would not have received instructions to release her.)

"Are you serious? I could have been home in time for Christmas, my birthday, everything. Nobody let me know," she said. "I sat there four months. That's devastating."

She lost her car, her home, and pretty much all her possessions while detained. Today, nearly five months later, she is couch-surfing and still looking for permanent housing.

"I have to start all over again," she said.