How Pennsylvania’s new sentencing guidelines for probation violators ‘could increase mass incarceration’

It took more than a decade after the legislature issued it a mandate, but Pennsylvania’s Commission on Sentencing has finally instituted guidelines for resentencing people who violate their probation.

What the commission came up with — a rule of thumb setting the guidelines, in most cases, back to the options available to the judge at initial sentencing — will give judges a common starting point and rein in outliers, said the commission’s executive director, Mark Bergstrom.

“It tends to bring sentences closer to the middle rather than a lot of extreme sentences,” he said.

But given that those guidelines will in many cases call for jail or prison time, it could also result in many judges imposing far harsher sentences on probation violators than they had in the past. In Pennsylvania, more than 30,000 people face resentencing each year after their probation is revoked.

“That could result in an increase in mass incarceration,” said Sangeeta Prasad, a fellow from the Stoneleigh Foundation working with the Philadelphia District Attorney’s Office on probation issues. “This would push a significant portion of the judges to consider a higher sentence.”

The commission spent the last decade building a data-collection system and analyzing current sentencing practices, according to Bergstrom. It found that, for the lowest-level crimes, judges departed from the guidelines to impose harsher penalties at resentencing more than half the time.

That’s one reason Greg Rowe, legislative director for the Pennsylvania District Attorneys Association, thinks the guidelines will pave the way for more consistent outcomes and ultimately reduce incarceration. “Given that we’ve had no real structure up until this point, I think it’s a good step in the right direction,” he said.

But at a hearing on the resentencing guidelines last summer, Helene Placey, executive director of the County Chief Adult Probation & Parole Officers Association, questioned whether that analysis was sufficient.

» READ MORE: The Probation Trap: Lenient sentences in Pa. often have harsh consequences

“It’s time to take a step back and request the Sentencing Commission members not rush into adopting policies that have no data to support the proposals,” Placey testified.

She particularly decried an aspect of the plan that increases the guideline sentence for any violation that involves a new criminal conviction, calling it “very arbitrary and capricious in nature” — because it doesn’t take into account the seriousness of the offense or the rehabilitative needs of the defendant.

Prasad argued that it also may create a false distinction — for instance, between a person in addiction who tests positive for drugs and one caught with those same drugs and convicted of possession.

“Both of them are relapses which every substance-abuse expert will tell you is part of the trajectory for a user or an addict,” she said. To her mind, in the case of either violation, incarceration is not a helpful response. “It sort of flies in the face of common sense," she said. "Putting people in jail constantly for them will actually increase recidivism and decrease public safety.”

State law prohibits the incarceration of probation violators unless they have committed a new crime, are likely to commit a crime, or have acted out so flagrantly that jail is essential to “vindicate the authority of the court.” In some cases, incarceration will now become the recommended sentence. Judges will have to explain on the record their reasons for departing from the guidelines.

Lawmakers in Harrisburg have over the last year debated comprehensive probation-reform proposals that would greatly reduce the number of people on probation and limit jail stays for noncriminal violations to just a few weeks or months. However, those proposals have stalled under opposition from prosecutors, judges, and Republican lawmakers.

As that debate raged, little attention was paid to the draft resentencing guidelines the commission had published.

Bergstrom said that, even after a decade of consideration, what the commission came up with was more or less an inevitability.

“The question would be: What would be the alternative?” he said. “We’re saying just go back to where you started. I’m not sure what the alternative would be.”