Living in Fear

WHAT’S PROBATION FOR?

“When I started as a public defender,” said Nyssa Taylor, who now works at the ACLU of Pennsylvania, “I thought a probation sentence was a win. I was keeping people out of jail.”

Now, Taylor and many others believe that this was a fundamental misunderstanding of the system — that probation, a supposedly lenient sentence, can ultimately lead to surprisingly harsh punishments. But that misunderstanding has fueled the system’s out-of-control expansion, as probation is imposed for reasons far afield from its stated purpose of rehabilitation.

It raises the question: What’s probation for?

To Erika Pruitt, president of the American Probation and Parole Association, the answer is simple: “You’re working with people on probation so they can live in their communities and not victimize. You’re not only helping an individual change their lives; you’re helping to restore their family and you’re helping to build communities.”

In practice, though, probation is also called on for a number of other purposes. It’s used as a release valve for prisons and jails, as a means to force people to participate in drug and mental health treatment, and as a screw for collecting fines and restitution.

It is, in one respect, the junk drawer of the criminal justice system. Judges use it to accommodate all those low-level cases the system has no other obvious recourse to address. Among a recent sampling: six months’ probation for stealing a package worth $20 off a neighbor’s doorstep; one month for a seven-year-old marijuana charge that, for various reasons, had not previously been resolved; a year for a vehicle inspector who falsified an auto title for a customer who would go on to commit insurance fraud.

“My theory in these low-level offenses is that it’s so the court can be perceived as doing something,” said Michelle Phelps, a University of Minnesota sociologist who studies probation.

Some people who have led lives with little structure, access to treatment, or connection to services say they benefited from their time under probation.

One is Tina Price, 41, whose struggles with substance use led to a 2016 retail-theft conviction and two years of probation in Delaware County. “They’ve given me a lot of chances,” Price said. The court-ordered treatment helped her get sober, she said. She even grew to appreciate the weekly drug tests, a check to keep her from slipping.

But even those who run the system believe probation is overused.

At a legislative policy hearing last year, Helene Placey, executive director of the County Chief Adult Probation & Parole Officers Association of Pennsylvania, said that’s true at both on the high end, with overly long sentences, and on the low end as a response to minor offenses.

“We need to stop using probation as a collection agency,” Placey testified. “For low-level, low-risk offenders we need to utilize sentencing options of ‘guilt without further penalty,’ fines, and restitution, as stand-alone sentences on a more regular basis.”

And, those on probation are less likely to succeed than ever before. According to the Bureau of Justice Statistics, 69% of those completing probation did so successfully in 1990, compared with just half in 2016.

Pennsylvania counties have largely mirrored this national trend of ever-mounting violations. Philadelphia issued 80% more  probation warrants in 2017 than it did 15 years earlier, an Inquirer analysis of court data found.

Leadership of the First Judicial District, which comprises the Philadelphia courts, declined to review data compiled by the Inquirer or to answer questions about the probation system.

Statewide, these days, twice as many people have their probations revoked each year for what are termed “technical violations” — that is, failing some condition of probation — as for new crimes.

Probation officers say that’s often justified.

“I hate the term technical, because it’s not technical,” said Michael Gordon, chief of probation in Montgomery County. “If someone absconds, and that’s usually what the technical violation boils down to, they were getting high. They didn’t want to give us urine [samples], so they just stopped coming.”

But — as researchers in Philadelphia found in a randomized study that placed some people on regular probation and others under intensive supervision — the more closely people are monitored, the more conditions and reporting requirements they’re subjected to, the more likely they are to violate and to be incarcerated.

It’s also clear that those with the fewest resources are the least able to meet the conditions of probation. Phelps found those jailed on probation violations are half as likely as probationers in the community to have completed high school and are twice as likely to be black.

It’s a cycle that, in many cases, nets low-level offenders with crimes, such as shoplifting, that are often motivated by poverty or addiction.

A review of retail-theft cases in Philadelphia and surrounding counties bears that out. Of almost 2,500  shoplifters convicted in 2013, 62% would be brought back before a judge on a violation; half would be resentenced, either to more probation or to jail. And 534 would be sentenced at least three times — extending their sentences by 2 years and 9 months on average.

These stacking punishments can add up to terms far beyond the guidelines for the underlying conviction. One woman, who stole $33 worth of body wash from a North Philadelphia Rite Aid in 2013, would be resentenced twice for violating probation, for a total of nine months in prison and nine years on probation. Yet, it’s not clear these punishments help people change their behavior. During her sentence, this same woman was also on probation or parole for a string of eight other convictions for theft, drugs, and other low-level charges.

JESSICA GRIFFIN / Staff Photographer

Philadelphia District Attorney Larry Krasner (front center) and Assistant District Attorney Paul George, during a news conference about the Meek Mill case, on Aug. 27, 2019. Mill had repeatedly been incarcerated for probation violations in a case that brought national attention.

Since Philadelphia District Attorney Larry Krasner took office, he has reduced the number of retail-theft cases filed by 84%, downgrading them to the lowest-level charge, a summary offense. In other counties, though, people continue to face misdemeanor or felony charges, and lengthy probations, for shoplifting.

Even for Price, who was grateful for the help she received from probation after she was convicted of the 2016 retail theft, it feels like a never-ending loop.

Price now lives in Susquehanna County — but when police found an empty drug vial in her car during a traffic stop near her home, it put her in violation across the state in Delaware County. The vial was a friend’s, she said, but she couldn’t afford a lawyer to fight the drug-paraphernalia charge. She pleaded guilty. Then, she left home before sunrise to drive 3½ hours to the Delaware County courthouse to plead to the probation violation, accepting a new sentence of two more years of probation.

“Everything is probation,” she said afterward. “You will not leave this courtroom without probation, I don’t care what charge it is. It’s revoke, resentence, revoke, resentence. I was at the end of my two years — why not let me go?”

LIFE UNDER SUPERVISION

On Aug. 28, 2017, Lizzimore reported to the Stout Center for Criminal Justice to surrender for house arrest — the first leg of a 13-year journey under the supervision of the Philadelphia Adult Probation and Parole Department.

As a sheriff secured the monitor tightly against his ankle, it was his first indication of how supervision would constrain his life, his job opportunities, his housing options, and his social interactions for years to come.

His career options had already narrowed precipitously as his case lurched through the justice system, job offers falling away as employers learned of his pending gun charges.

JESSICA GRIFFIN / Staff Photographer

Khalil Lizzimore works on his music with Kenif Muse, whose back is to the camera, in a recording studio near Sixth and Girard Streets in Philadelphia. He's had to build his career around the conditions of his probation.

Just before his sentencing, he finally landed a warehouse position — but he still had to arrange the start time with his probation officer, so he could leave for work without triggering an alarm. He said his calls to the officer kept going to voicemail, and his emails went unanswered. The night before his first shift he could barely sleep, debating whether to miss his first day and possibly lose the job, or venture out without his probation officer’s permission and risk being hauled back to jail. Finally, the next morning, he caught the officer on the phone just in time, and was cleared to leave for his new job.

Since that day, Lizzimore has built his life around the long list of conditions that seemed unrelated to his charges — annual community-service requirements, drug and alcohol treatment, court-ordered anger management. He had to give up his apartment and move back in with his mother because his landlord wouldn’t allow him to be on house arrest. And, he has struggled to sustain employment that fits into the court-ordered parameters of his freedom.

Last year, he finally found a job he was excited about: merchandising stores for Canada Dry. It was a pay raise, and it felt like a status boost. “Everyone’s heard of Canada Dry,” Lizzimore said.

Then Lizzimore learned he’d be required to attend weekly team meetings in Pennsauken, Camden County, just across the Betsy Ross Bridge. To his dismay, his probation officer wouldn’t allow the interstate travel. “I felt that job was my second chance — and to have that taken away from me was just discouraging.”

These days, Lizzimore — a rapper who goes by Yvng Primo — believes self-employment is just more practical. He’s started his own music label, and he runs an auto-parts delivery service, operating within city limits to ensure he’s never in violation.

It’s a little-acknowledged side effect of probation: It dictates where people can live, where they can work, the shape and scope of their aspirations. People describe modest goals, like mortician school in New Jersey, as beyond reach because of the rules of probation.

JESSICA GRIFFIN / Staff Photographer

Alaya Tyler, in her Southwest Philadelphia neighborhood, said being on probation has informed every aspect of her life. To avoid any possible violation, she leaves home only for work, school, or court.

Alaya Tyler, who was just 18 when she was with a group of friends who committed a robbery, said the nine months she spent in jail were enough to make her reorient her life, with a focus on education and work. But the 12 years’ probation that Judge Rayford Means ordered was now a barrier; while under supervision, she couldn’t get a certification she needed to advance at work, as a medical assistant.

“I want to go back to school for behavioral health, but a lot of people tell me I can’t do it because of my record,” said Tyler, 24, of Southwest Philadelphia. “People never see the good that you did. They only look at the bad.”

One condition the judge added to her 12-year sentence was “not to hang around bad people.” Tyler said she’s adapted by avoiding socializing; she leaves home only for work, school, or court.

State law specifically authorizes judges to impose any or all of 14 conditions they may deem “necessary to insure or assist the defendant in leading a law-abiding life”: remaining within the county, fulfilling family obligations, seeking employment, attending school, reporting to probation, submitting to home visits, undergoing drug and alcohol treatment, or paying fines.

Most dreaded, though, is a blanket order to stay away from disreputable people or places. That can be near impossible in a city with some 36,000 people on probation or parole, according to Sangeeta Prasad, who is working toward probation reform as a fellow with the Stoneleigh Foundation.

“The way judges interpret that in Philly is you can’t be around anyone with a criminal record, certainly not around anyone with active probation or parole, and certainly not in a situation where there is a sweep. All of those end up being violations,” she said. “It really can not only change your housing, it ends up affecting how you interact in your day-to-day life.”

One young woman, Krystal Perea, on probation as a teenager for a minor drug-possession charge, was told she could no longer live at home because her mother was also on probation.

“A lot of my family, they're felons, too, so I can't move in with them. They’re under supervision as well,” said Perea, of North Philadelphia, who was homeless for a while as a result. “Now you're displaced from your home, and you've got to find a way.”

Julia Hillengas, who runs PowerCorpsPHL, a program that trains and employs young people, said it can be hard for people to maintain legitimate employment when encumbered by the restrictions of probation. It’s a reason some young people drop out of her program.

“You start to run down the list of legal-but-low-end work — overnight warehousing, retail — or back to illegal activity,” she said.

At a public forum in April, Philadelphia Probation Chief Darlene Miller denied that anyone would lose a job because of probation. “We actually make provisions for individuals who actually work,” she said.

Yet, it’s routine in Philadelphia courts to find people in violation of probation due to a work conflict.

One woman explained she lived and worked in Chester County and did not have a car,  so reporting to probation in Philadelphia seemed impossible. At her most recent violation hearing, after she spent two weeks in jail, the judge finally ordered her onto telephone reporting. Another day, a young man, who had been convicted of dealing drugs five times in three years, but was now a full-time barber enrolled in nighttime beauty school, was detained for failing to report. In court, he promised to quit his job so it wouldn’t conflict with probation again.

UNCERTAINTY THAT FUELS FEAR

Like a woman in her final weeks of pregnancy, Latyra Blake keeps a small overnight bag ready at home. It contains a pair of spotless white sneakers, a fluffy roll of socks, folded underwear, a scrap of paper with a few important phone numbers, a shimmery plastic rosary.

It’s part of a ritual she undertakes each month, along with dropping her 6-year-old son off at her mother’s house in Frankford and boarding a train to Center City, to the Philadelphia Adult Probation and Parole office.

“Even though I’m doing right, I’d be scared that something might go wrong,” said Blake, a peer mentor, artist, and advocate who helps people turn their expunged criminal records into artwork with the nonprofit People’s Paper Co-op, and who has set her sights on personal transformation after years of addiction and chaos.

To Blake, probation feels like a sort of limbo. She’s not in jail, sure. But, she said, “I don’t feel free, not at all.”

In the days before she has to report, she finds herself crossing the street to avoid the marijuana users near the subway station, guarding against the improbable danger that any secondhand smoke would be detectable on her monthly drug test.

“You go behind that door, you don’t know if you’re going to come out,” she said. “I seen people get locked up there a number of times. Maybe they did something to get locked up, and maybe they didn’t.”

For Blake, and many others, that constant, low-grade fear is exacerbated by their uncertainty about what violations are serious enough to merit incarceration and about what consequences might follow.

JESSICA GRIFFIN / Staff Photographer

Latyra Blake, seen at home in the Germantown section of Philadelphia, sorts through the bag of essentials she takes to every probation appointment, including socks, shoes, underwear, and a scarf.

“I’ve seen people detained for one positive drug test, or for 10 — for a single missed appointment or for five,” said Adrian McGill, an advocate with PowerCorpsPHL.

Philadelphia Common Pleas Court Judge Leon Tucker told reporters last fall there’s no uncertainty:  The courts are detaining people “only when absolutely necessary” to protect public safety.

But that’s not the case.

Of 98 preliminary revocation hearings in Philadelphia observed by The Inquirer in 2019, 41 people were jailed primarily for failing to report to probation.

A significant minority of those had been hospitalized or in inpatient drug treatment, or said they simply didn’t have car fare to get to the probation office. One man had been reporting faithfully to Delaware County probation; he just didn’t know he had to report in Philadelphia, too. Another, having received a successful discharge from state parole, was not aware he still had to report to county probation. A third, convicted of a 2002 robbery, claimed to have simply lost touch with his probation officer; he’d been living crime-free in Lancaster County for 16 years, before he was detained in a Philadelphia jail for a week.

JESSICA GRIFFIN / Staff Photographer

Every person on probation in Philadelphia keeps a yellow card, like this one belonging to Latyra Blake, listing past and future probation appointments.

Six people were jailed primarily for drug-related issues like a positive test for PCP or failure to complete treatment.

An additional 39 had new criminal charges, ranging from felonies to marijuana possession or even summary offenses, essentially tickets.

A handful had run afoul of the rules in other ways, such as a man who spent three weeks in jail for visiting family out of state for the holidays without permission.

Among those detained for absconding, some turned themselves in after weeks or months of agonizing, while others were picked up during raids or routine traffic stops. A frequent refrain at these hearings is  “I know I should’ve reported — but I was scared.”

Keir Bradford-Grey, Philadelphia’s chief public defender, said it’s a common sentiment among her clients.

“That's the problem with probation here in Pennsylvania, is that there's so much ambiguity around what you will receive when you have an issue,” she said. Unlike the overwhelming majority of states, Pennsylvania imposes no cap on punishments for probation violators, except for the legal maximum term for a particular crime. Moreover, it has not even put in place any guidelines for judges to use in resentencing.

“The unknown and an uncertainty of what they're going to be facing, that's the part that I think people are really afraid of,” Bradford-Grey said.

Those detained on violations face at least a week or two in jail, after which a trial commissioner or judge could release them or keep them locked up until a final hearing. What happens after that varies. Some judges are inclined to give those in violation second, third, and fourth chances. Others are known for sentencing probation violators to lengthy terms in state prison.

There’s also a widespread perception among those on probation that any police contact is, in itself, a violation — even being witness or victim to a crime. Kalef Jones, 27, said that when he was on probation back in 2013 he was wounded by a stray bullet outside his home. “You know I could lock you up,” his probation officer told him after he left the hospital. Though he still has that bullet lodged in his lower back, he said, he rejected a prescription for painkillers, fearful both of addiction and of failing a drug test while on probation.

Of course, some point to one simple remedy for such concerns: Abide by your probation conditions.

“Part of the problem is defendants, once they become convicted, need to accept responsibility. They have conditional liberty — they don’t have absolute liberty anymore,” said Francis Zarrilli, first assistant at the Delaware County public defender’s office, said of his office’s clients. “If they’re not complying with those things, what’s the purpose of the rules?”

But for people such as Samuel Goggins, it feels as if trying to follow the rules isn’t enough. He was on probation for five years for a robbery he says he didn’t do when he was hospitalized and missed a probation appointment. He said he called to let his officer know. “Still, she put out a detainer the next day. After that, why report? They were gonna lock me up anyway.”

So, he worked construction awhile, saving some money to make sure his wife and child would be OK. When things were stable at home, he turned himself in. As expected, Goggins was detained. He was released after 20 days — not too bad, by his estimation — but by then he’d been fired from his job. The judge also sentenced him to 18 more months on probation, and gave him a warning: The next slipup would send him to state prison.

“Probation, it's like a setup,” Goggins said. “Any little thing you do, they send you to jail. They send you to jail for noncontact — your phone could be dead. We be living life out here, trying to get by. I don’t think they should send you to jail for missing an appointment, calling the next day.”

JESSICA GRIFFIN / Staff Photographer

Latyra Blake and her 6-year-old son walk from her home in the Germantown section of Philadelphia to a grocery store. Blake is not allowed to take her son when she reports to probation, so she must take a bus and a train to drop him at her mother's house in Frankford, then circle back to the probation office at Seventh and Market Streets in Center City.

‘THEY TOOK THE SOCIAL WORK OUT OF IT’

In Philadelphia’s Stout Center for Criminal Justice, courtrooms where probation violations are heard are often filled to overflowing.

In a single week in Philadelphia this August, 421 people were brought to court for violations. Of those, 115 had already had their probation revoked at least twice before; one had been revoked 10 times, on a case dating back to 2012.

Of the 21,000 people discharged from probation in Philadelphia in 2017, about half were deemed “successful” and nearly one-quarter were incarcerated. Statewide, 54% of prison admissions are for probation or parole violations, according to the Council of State Governments.

It’s clear that this supervision comes at a high cost, but a more complicated question is: What are we getting in return?

Philadelphia DA Larry Krasner called the current recidivism level for probation and parole “frankly absurdly high” — which he blamed on the probation department’s massive caseload.

Several former Philadelphia probation officers — including Ed Quinn, a retired policy director who oversaw the creation of an armed unit within the probation department — said that as the pool of probationers ballooned, the culture of supervision also shifted.

As drug addictions proliferated among those on probation, Quinn said, he used to have flexibility to respond more deliberately. For instance, he’d put a client in jail briefly on what was termed a “therapeutic detainer,” then call around and find an in-patient treatment bed. “I’ll put him in my car, get him a medical assistance card, drive him to Eagleville where there’s a bed waiting for him, sit through the admissions process with him and go back while he was there and attend group therapy with him. That’s the kind of stuff we did back then. You’re not doing that with today’s numbers.”

MARGO REED / Staff Photographer

Keir Bradford-Grey, chief of the Defender Association of Philadelphia, speaks at a news conference in this March 6, 2019, Inquirer file photograph. The defender has successfully petitioned for early termination of probation for more than 200 people.

The traditional view on probation is it is part social work, part law enforcement, said Shari Smith-Jackson, a Philadelphia probation officer from 2006 to 2017. But by the time she left, she said, “They took the social work out of it.”

Her caseload — often, 200 to 300 clients at a time — limited her ability to help them. She counts “less than a handful of success stories” over a decade, and many crushing disappointments, including a woman whom she’d been proud to help get clean, but who relapsed on her very last day under supervision.

She said it wasn’t surprising that violations have risen.

To Smith-Jackson’s mind, that coincided with a number of policy shifts that removed the discretion officers once had.

One was the adoption of a computer system on which she was required to log every client interaction. If a client missed one appointment, she was supposed to call the next day. The day after that she was to send a letter, ordering the probationer to report within the week. If that didn’t happen, she was required to put out a warrant. In the past, if she knew, for example, that the person had missed an appointment because he had just started a new job, she might give him a little more leeway. Now, she could not do that.

Once the department adopted a risk-assessment tool in 2009, she said, there was even less discretion. Officers were instructed to automatically detain certain groups of people, including those labeled high risk, if they incurred any new charge, she said.

“By the time I left,” she said, “I felt a robot could have done my job.”

Bradford-Grey, the city’s chief public defender, believes probation has the potential to improve public safety and change lives — if it is primarily used to support people.

But, she said, “Sometimes, probation can drive people into further desperation. People can give up, even when they had hope in the beginning.”

These days, she has come to believe the most effective way she can help her clients get their lives on track is to get them off probation as quickly as possible. Over the last year, her office has successfully filed more than 200 motions to terminate probation early.

JESSICA GRIFFIN / Staff Photographer

With help from the Defender Association of Philadelphia, Alaya Tyler, 24, petitioned to be released early from a probation term that was set to continue until she was 31 years old.

One was for Alaya Tyler, the 24-year-old aspiring medical assistant who’d been sentenced to remain on probation until she was 31.

In June, she sat surrounded by supporters in Judge Means’ courtroom, in what would be her third request to end probation, trying to gauge the judge’s mood that day. She had barely slept, and was too nervous to eat.

By the time Tyler’s name was called, she was shaking — but in a hearing that lasted less than a minute, Means agreed to end her probation.

“It’s over!” she sighed as she left the courthouse. “Do you know how long I’ve been waiting for this?”

Tyler’s mother, Shidonna, wiped away tears — grateful that she won’t have to open her home to further intrusions by probation officers, but mostly pleased that Tyler will no longer live a life framed by fear.  She said now her daughter will finally be free to pursue her dreams.

“It’s just a lot of pressure. There were like 20 eyes watching her,” she said. “Now, it’s all over. She can go forward. Now she don’t have nothing in her way.”