Philly public defender suit seeks to blow up ‘unlawful’ probation detainers

When Tyjear Davis was arrested in April on marijuana charges, a magistrate reviewed his record and determined he was eligible for release without any bail.

Davis, presumed innocent, would have been free pending trial — except he was already on probation for a 2017 aggravated assault and robbery, and the new arrest comprised a “potential” probation violation. The judge overseeing that probation, Robert Coleman, ordered Davis held on a detainer, a court-order that would keep Davis in jail until he could go to trial and then return to Coleman’s courtroom for a final probation-violation hearing.

Such detainers are common practice in Philadelphia, holding more than half of people incarcerated in the county jails, many of them for months on end. Now, the Defender Association of Philadelphia has filed a petition asking the state Supreme Court to step in and provide extraordinary relief for Davis — and reform a statewide practice the Defender Association argues violates individuals’ fundamental rights to bail and to due process.

“Detention on a probation detainer, without any necessary reliable showing that release will endanger the community, eviscerates the right to bail, violates the presumption of innocence, and constitutes constitutionally impermissible punishment,” the Defender Association wrote in the lawsuit, filed in June.

In the complaint, the Defender Association said the state’s highest court must at last impose rules on when, why, and how people can be held on detainers pending new charges.

“It is imperative that this court address the serious problem of detainers for those awaiting trial, and limit them under appropriate standards that balance individual rights with the safety of the community,” it argued.

Philadelphia’s court administration, known as the First Judicial District, did not immediately respond to a request for comment.

The District Attorney’s Office filed a “no answer” letter to the petition, indicating it would not immediately weigh in. The office did not respond to a request for comment.

In a brief supporting the action, the American Civil Liberties Union of Pennsylvania and the Public Interest Law Center noted, “Probation violations drive Pennsylvania’s mass incarceration crisis.... Detainers lodged against those charged with, but not convicted of, probation violations hold thousands in pretrial status.”

Researchers have found those jailed pretrial in Philadelphia, whether for inability to post bail or because of a detainer, are 13 percent more likely to be convicted and receive sentences that are on average 42 percent longer — numbers thought to reflect the pressure to plead guilty rather than spend months in jail awaiting trial, as well as the diminished ability for jailed defendants to assist in their own defense. Moreover, excessive detention can make communities less safe: Just two or three days of incarceration boosts the likelihood of being arrested again pretrial by 40 percent among low-risk defendants, one analysis found.

Philadelphia’s chief defender, Keir Bradford-Grey, said in a statement that the petition asks "the state Supreme Court to consider if a probation detainer based solely on a new arrest can justify indefinite pretrial detention — advocating for a client who, despite having complied with all conditions of supervision, has been detained for months solely based on arrest for a nonviolent offense.”

The Defender Association last year called out the First Judicial District for failing to enforce its own rule on detainers, a local provision that then required a judge’s authorization before a detainer could be lodged in almost all cases. (In reality, the probation department was seeking detainers on its own, to be reviewed by a judge only once a person was in custody for days or weeks.) The court responded by doing away with that rule.

“It’s always interesting when we ask to follow a rule and instead the rule is just rescinded,” Bradford-Grey said then, “but we’re looking forward to what’s next.”

The rule that came next in fact eliminated many of the theoretical protections that the previous rule provided, allowing probation officers to continue acting on their own to detain alleged violators.

Today, according to the Defender Association petition, detainers are often lodged automatically if a person on probation is arrested, according to “secret criteria the department has refused to disclose.”

According to the association, the city Adult Probation and Parole Department typically seeks detainers well before preliminary hearings. By then, there has been no determination of whether there is probable cause to believe an offense was committed; instead, the association alleges, the decision is linked to a risk assessment score. Such risk tools have been criticized as perpetuating racial bias, because inputs can include factors such as neighborhood demographics and arrests that did not result in conviction that may say as much about policing practices as the individual’s own criminal tendencies.

The petition cited an affidavit from a staffer, Asia Hightower, who worked as a probation officer for 11 years until July 2017: “The policy and practice while I was there was to automatically lodge a detainer whenever a high-risk client or one in a specialized unit such as a sex offender or domestic violence was arrested for any new offense.”

There is often no individualized finding on detainers either, the association noted: In many cases, judges order detainers to remain without a hearing and without the defendant present. In some courtrooms, the clerk may enter that order based on the new arrest without even waiting for a judicial determination.

The Philadelphia courts have instituted improvements, including preliminary hearings on violations that for the first time are held in open court, with the defendant present via video conference. As a result, the trial commissioners who conduct those “probable cause” hearings are releasing far more individuals than in the past. However, no testimony is taken, probable cause for a violation is found in seemingly every case, and the vast majority of detainers remain in place pending trial. Additionally, some Philadelphia judges, rankled by the early release of their probationers, have sent down orders that their detainers are to remain in effect, with or without probable cause.

Still, those prompt preliminary hearings actually set Philadelphia apart from many of its counterparts across the state, where people held on detainers may languish for weeks or months before receiving even a preliminary hearing, noted Nyssa Taylor of the ACLU of Pennsylvania, one of the authors of the amicus brief.

“Most counties in our commonwealth have the same persistent, long-standing issues," said Kimberly Makoul, president of the Public Defender Association of Pennsylvania and Lehigh County’s chief public defender. "Specifically, county probation departments very often lodge a detainer based on the new arrest without exercising discretion or considering whether the defendant is a risk to flee or a danger to the community.”

Taylor emphasized that an arrest alone is not sufficient to revoke probation, and it shouldn’t be enough to hold someone on a detainer.

“As we look across the state, we see this as being one of the major drivers of pretrial incarceration," Taylor said. "We’re concerned about all the ways that people on probation get far, far less due process than they should.”