A sentence that never ends: How probation kept a Pennsylvania man locked up through the pandemic — even after his release date

He was still a teenager when, a year after his school went under, he graduated to a new form of state supervision. At the age of 18, Kevin — Insider is using a pseudonym at the request of his attorney — got into an altercation with police in Sharon Hill, a Philadelphia suburb, that resulted in him receiving a sentence of up to 23 months of incarceration and a year of probation. While he was incarcerated, he was accused of ripping his mattress and stuffing his shirt in a jail toilet. He was charged with institutional vandalism and criminal mischief and received two more years of probation.

Kevin spent about two months behind bars over those incidents. But probation has meant that, in order to avoid a return, he has to comply with rules that are imposed and enforced at the discretion of a judge and probation officer. For example, smoking marijuana, which has been decriminalized in Philly, is considered a technical violation, so testing positive for it can land someone on probation back in jail.

That's what happened to Kevin, who is now 22 and still living under supervision as a result of failing a drug test and other violations. He has made mistakes, of course, but as the court recognized, he needs mental-health treatment, and the terms of his probation are ostensibly meant to help guide him, with a firm hand, to the services he needs.

By that metric, it has failed.

Kevin is now homeless. And because he's on probation, he has repeatedly been jailed for things that would not otherwise entail lengthy terms of incarceration. Indeed, he has spent most of the pandemic behind bars, beginning in March 2020 with a stint at the George W. Hill Correctional Facility in Delaware County. He was not convicted of a crime, but had been arrested (which itself is a technical violation of probation); he was released when the charges against him were withdrawn, but not before spending 107 days in a cell.

He would return to that jail in September 2020, following an arrest for "defiant trespass" in Philadelphia — essentially, loitering at a train station in Center City — that he failed to report to his probation officer within 72 hours.

After that incident, Kevin remained incarcerated for more than a year.

It took more than six months for him to even get before a judge (people on probation cannot be bailed out of jail while they wait for their hearings). And because of the conditions that the judge was able to unilaterally impose, like the requirement that he obtain housing before being released, it would take another seven months from the time he was eligible for release to actually step outside.

He was lost in the system and remains stuck in a cycle of poverty and incarceration. He is not alone.

Super citizens

In Delaware County, though, the number is more like one in 17, according to the state Board of Probation and Parole.

This high rate of supervision is not a product of crime, per se. Pennsylvania has a below-average rate of both violence and property offenses. And within the commonwealth, while Delaware County has the highest rate of supervision, from 2012 to 2016 there were 18 other counties in the state with a higher crime rate.

While every state in the nation asks law enforcement to address social ills, it is particular policy decisions — how Pennsylvania and its counties have chosen to address systemic problems — that have made the commonwealth so reliant on community supervision as a method of punishment.

"Top to bottom, the criminal-justice system tends to be a kind of substitute for other reforms and needed social services," Nikil Saval, a Democratic state senator who represents Philadelphia, said in an interview. "We tend to drive a lot of resources into the criminal-justice system rather than, you know, supplying them to people before they are caught up in the system."

At the state level, in 2019, just 0.9% of spending in Pennsylvania went toward public assistance programs; more than 3.5 times as much — 3.2% — went to corrections. That imbalance has contributed to a myopic approach to poverty and mental health, social ills too often shoved off to the criminal-justice system, which is both costly and ill-suited to solving the problem.

"We're asking it to do more than it can do. We're asking judges to do more than they can do," Saval said. Experts in criminal law are now, in many cases, expected to be social workers, with their commitment and results varying.

"We have a number of different substitutes," Saval said, "including probation, and incarceration itself, in many respects, for the forms of social support that our society seems determined not to provide people."

In Pennsylvania, courts have the freedom to devise the terms and length of probation.

On its face, that's a good thing. Instead of a one-size-fits-all directive, judges and probation officers are free to consider the individual's circumstances and appropriately tailor the length and terms of probation.

But it also means that a lot can depend on the whims of an individual judge and probation officer — all with different workloads and approaches to their jobs — as well as the culture in a jurisdiction.

Justice, carried out with such discretion, can begin to look arbitrary.

The many paths to incarceration

Not many probationers will spend a year behind bars before they get a hearing, as in Kevin's case. But many, regardless of where they are or what they look like, will experience a severe disruption to their lives — days, weeks, or months of detention without even the option of getting bailed out — leading to a setback that could derail whatever progress they had made since first coming into contact with the criminal-justice system.

In Philadelphia, where District Attorney Larry Krasner recently won reelection campaigning as a progressive reformer, those accused of technical probation violations still spend about three weeks in jail, on average, before they get a hearing with a judge — plenty of time to lose a job, miss a rent payment, and worry about how the kids are going to get to school. In Montgomery County, just outside the city, the average wait is 70 days. That's more than two months of incarceration before a court even considers whether an alleged violation merits punishment at all.

When that court hearing does come around, the alleged violator is judged differently than other people, regardless of the jurisdiction. In a normal criminal case, the state is required to show, beyond a reasonable doubt, that the accused is guilty. With probation, the standard is far lower: The judge can unilaterally decide to revoke probation, extend state supervision for years, or send someone to jail based on the "preponderance of the evidence." In plain English, that means a person can be incarcerated if the court believes there's a 50.1% chance the allegations are true.

And what triggers all this is not always a new arrest, much less a new criminal conviction, but something far more mundane — failing to immediately report a new job, for instance, or breaking curfew because work kept you late.

"What we expect of people who are on probation is quite odd," Shanda Sibley, a law professor and director of the Systemic Justice Clinic at Temple University, said in an interview. It's not enough to go back to school and get a job or raise a family — a probationer must never miss an appointment or be late, even if it's an hour drive away; they must always document their own progress and submit that documentation on time, every time, and never associate with a person who has a criminal record.

"We don't expect them to behave like normal, law-abiding citizens," Sibley said. "We actually expect them to behave as super-citizens."

One mistake can be forgiven, and most probation officers are not eager to send someone to jail over the smallest infraction. But one error can also upend a life. Again, there is discretion.

"We set them up for failure," Sibley said. A technical violation — breaking a rule, not the law — can lead to a person remaining on probation far longer than their initial sentence called for. And the longer they're on probation, the greater the chance they will commit a technical violation again, once more resetting the clock.

In Pennsylvania, there's no real limit to how often that can happen or for how long one can be stuck under supervision. In New Jersey, probation terms are capped at five years. In Delaware, felony probation sentences are capped at just two years, and misdemeanors at one. By contrast, in the commonwealth, probation can be as long as the maximum sentence for the underlying offense — 20 years for a first-degree felony.

The sentences can also be "stacked," meaning that a pair of misdemeanor offenses could land someone three years on probation, or up to six if the judge decides to pursue the maximum sentence for each charge.

What one ends up with is an alternative to incarceration that can drag on far longer than a carceral term, making it more difficult to answer the question: Is the alternative better than just going to prison and being done with it when you get out? At least then you won't get sent back to jail just because you consumed cannabis, rode in the same car as someone with a felony conviction, or were unable to provide a current address because you do not have a place to call home.

"Probation can really go on, if not forever, for something near forever," Sibley explained. "You're never freed from the supervision and the watchful eye of the state. Your freedom is always threatened. And you have to live under that cloud for as long as you're under supervision."

'The people who society abandoned'

In Philadelphia, SEPTA transit officers had been arresting people on trespassing charges as part of a stated effort to provide "safe service and a clean travel environment," with repeat offenders banned from riding the city's trains and buses.

Kevin was one of those people.

He was leaving the city's Suburban Station, Sen said, when officers tackled him to the ground. That arrest prompted his probation officer to report him to the court, triggering his detention.

"I found his case, I thought it was particularly egregious, and so I took it," Sen told Insider.

In Pennsylvania, judges enjoy an incredible amount of discretion. A person on probation can be incarcerated simply to "vindicate the authority of the court," or a judge can decide that the same violation merits no jail time at all.

When Kevin finally stood before a judge in April 2021, he was effectively given a sentence of time served, or 228 days, for having failed to report his arrest by public-transit officers. But his probation was also revoked, the judge imposing an additional year of supervision.

Kevin was eligible for release the same day that sentence was handed down. But still, he could not get out.

That's because the judge also imposed two conditions on his release that proved impossible for him to satisfy without help: that he obtain "a verifiable address" and that he have "mental health services in place." As a person experiencing homelessness, neither condition was something that Kevin could satisfy on his own.

"That was a bit astonishing to me," Sen told Insider. "And it just feels inherently unconstitutional. 'If you cannot provide us with an address, even though we've kept you incarcerated for well over a year, then you can't ever be released.' It's a conundrum."

There was certainly no sense of urgency to find a solution, at least not among those who imposed the conditions that kept him locked inside a cell. The local probation and parole office would not release him to a nearby homeless shelter, for example, because they determined he was a resident of Philadelphia, not Delaware County, and thus not eligible to receive its services.

It was left to others — Sen and her counterparts at the Delaware County of the Public Defender — to put together a plan to get Kevin out, ultimately compelling the authorities to release him seven months after he was first eligible, in November 2021, and some 14 months after he was put in a cell.

When living under state supervision, the threat of confinement is omnipresent. Without resources, such as stable housing and effective treatment, those who are subjected to it while battling addiction, mental illness, and deprivation can find themselves stuck in a cycle of incarceration.

A costly cycle

"Especially in Pennsylvania, it's just a never-ending loop for many, many people who get these probation sentences," Sen told Insider. "I think it's sad that we as a commonwealth, and as a society, are not even asking one of the basic questions, which is: Why are we putting these people in cages at all for this behavior?"

Much of Kevin's adult life has now been spent locked up, despite courts recognizing that he has a disability; he spent most of the pandemic in confinement — in a facility where people have died by suicide to escape — for nonviolent offenses he hasn't been convicted of, and technical violations that are not crimes, all while the authorities responsible for punishing him recognize that what he actually needs is treatment.

Kevin is poor, has no family to lean on, and needs mental-health treatment, but the state has essentially chosen to address his condition with repeated incarceration.

"Who we choose to punish very much comes down to whether you are a person of color and whether you are poor and whether you have these illnesses that we allow to be criminalized," Sen said. "People like Kevin are the people who society abandoned, and we should all feel a certain amount of shame that we allow this sort of stuff to happen."

Kevin is not a perfect human being, and his is not necessarily the most sympathetic case; he did not, as others have, violate his probation by merely crossing county lines for a doctor's appointment or failing to tell his probation officer about a new job.

But he is just the sort of person that the system is ostensibly designed to help. It makes no sense, fiscally or otherwise, to cycle a person in and out of jail, a traumatic experience that only exacerbates mental-health problems. A probation officer, in theory, should be there to act more as a social worker than a cop, guiding those in need of help to the services and opportunities that will enable them to move forward.

In practice, however, probation often means cycling those on the margins of society, like Kevin, through the system and back out again, with prison and jail stints punctuated by fleeting moments of state-supervised liberty — with no end in sight.

An emerging consensus

"We've all come to the conclusion that the current system we have isn't functional," State Sen. Lisa Baker, a Republican from outside Scranton, said in an interview. It's a system, she said, "that seems unfair — and, at times, broken."

As chair of the Judiciary Committee in the state Senate, Baker has spent a lot of time building the case to her GOP colleagues that reforming the commonwealth's probation system is not just the right thing to do, but the conservative thing to do, and something that can be done while still protecting public safety.

At public hearings in 2019, her committee received testimony from experts that people were being resentenced to longer terms of probation, and even put in jail, not for new crimes but because they missed a curfew or crossed state lines to get medical care. And such violations have bloated the probation system, with roughly 250,000 people now subject to restrictions on their freedom.

"One of the things that was very striking was the number of people in Pennsylvania who are under supervision at the county level," Baker said.

More than 80% of those living under supervision in Pennsylvania report to county probation offices, which are funded by local taxes. At a state Senate Judiciary Committee hearing in June 2019, lawmakers were told that these county probation officers couldn't handle the load — and wanted reform.

April Billet-Barclay, director of probation services in York County, noted that Pennsylvania's probation officers' caseload makes it difficult to do their job. She said the "consensus" among the state's officers was that probation sentences should be capped (five years for a felony and three for a misdemeanor) to reduce the burden.

That burden is heavy, and it leads to a heavy hand. According to the American Probation and Parole Association, a probation officer should have no more than 50 active cases among a "moderate- to high-risk" population. In Pennsylvania, Billet-Barclay noted, the average caseload is "more than double."

As of 2018, a probation officer in the state had an average of 105 active cases. In Montgomery County, the average is 174; in Delaware County, it's 177.

For a probation officer to assume the role of a Big Brother or Big Sister, they not only need to possess the inclination but the time to drive a client to a drug-treatment facility, for example, instead of just referring them to the courts over a failed drug test.

As the APPA has put it, sticking probation officers with too many active cases is like sticking teachers with large and unruly classrooms, where they "will be reduced to just maintaining order and sending misbehaving students to the principal's office."

But the analogy only goes so far. A principal, like a judge in a probation case, has almost unchecked discretion to mete out punishment — a Saturday detention, for example, or an in-school suspension. They cannot, however, send a misbehaving pupil straight to jail.

Marshall Clement, deputy director of policy at the Council of State Governments Justice Center, told Insider that probation officers need to possess both the training and the desire to act like more than just another form of law enforcement, with a goal of reducing recidivism, not just returning their client back to jail. But packing the probation system with people who do not need to be there — who, in other states, would not — can make that an impossible ask.

"How many can they actually work with simultaneously — to connect to drug treatment, address housing and employment issues, and deal with crises that come up? To make sure they're making court appearances, paying restitution, and actually learning skills to cope with stress effectively so they don't resort to drugs or alcohol or have outbursts that lead to violent altercations?" Clement asked.

Compared to the number of cases most officers actually have? "It's going to be a lot lower," he said.

Landmark reform or shuffling the deck?

In a statement, Sen. Baker, who shepherded the legislation through her committee, described Senate Bill 913 as a "giant step forward" in the fight to "eliminate excessive incarceration, [and] give individuals a more reliable second chance to get their lives right." The REFORM Alliance, a nonprofit co-chaired by Philadelphia rapper Meek Mill — whose own cycle of incarceration for "technical" violations drew national attention to the state's probation system back in 2017 — likewise praised the legislation as an "important step forward," urging the state's GOP-led House to quickly pass the measure.

The bill, should it reach the governor's desk, would make a slew of changes to how probation works in Pennsylvania. Some have been sought for years.

Under current law, a judge can revoke probation and sentence someone to jail if they have been convicted of a new crime, if their conduct suggests it is "likely" that they will commit a new offense, or simply because it's deemed necessary to uphold the court's authority.

Senate Bill 913 would eliminate the last two conditions. Under the bill, a person could only be incarcerated if they have been convicted of another crime or, based on a "preponderance of the evidence," they are determined to have committed one of six "technical" violations.

The legislation also spells out repercussions: A first violation comes with a maximum sentence of 14 days behind bars; a second comes with up to 30 days of court-ordered incarceration; a third violation can result in a person being incarcerated for the maximum time allowed for the underlying offense that led to their being put on probation — allowing for the possibility that a person who was given an alternative sentence ultimately serves more time behind bars than a judge would have ordered in the first place.

SB 913 does prohibit extending state supervision simply because a person can not afford to pay fines or court costs; in most cases, at least $1,000. It also would establish new "probation review conferences," declaring a person eligible for an initial review of their probation status after three years for a misdemeanor conviction and five for a felony — and potentially earlier if they continue their education or perform community service.

The pitfalls of change

Instead of capping probation terms at three and five years, as called for by probation officers and criminal-justice reformers alike, the legislation only calls for status reviews to be conducted at those times — a product, Baker told Insider, of the compromises needed to get it passed.

And while the bill limits the time someone can be incarcerated for a technical violation, it does nothing to address their being detained before a hearing on that violation — a detention that, perversely, can go on far longer than the actual punishments allowed for under the legislation.

"You can't post bail. There is no way out other than the judge lifting the detainer. That's why it's so pernicious," Elizabeth Randol, legislative director at the ACLU of Pennsylvania, told Insider. Real reform would tackle head-on this deprivation of liberty, she believes.

But it's not just that the bill does not go far enough. Some don't see it as improving the system at all.

Randol said what really "terrifies" her about SB 913 is that it could potentially make a harsh system even more punitive. Currently, a person on probation can request early termination at any time. Judges could look at the bill's new language and see the status review conferences years out as the new normal.

Or take the language on technical violations: The ACLU abhors the current law, which allows for someone to be incarcerated just to "vindicate" authority. But the group also takes issue with replacing it with a range of technical violations that could be punished with incarceration.

Two of the technical violations in the bill are not really "technical" at all: those that are "sexual in nature" and ones that involve "assaultive behavior." Their inclusion suggests someone could be incarcerated for alleged crimes based on the reduced evidentiary standards of a probation hearing, saving prosecutors the trouble of actually charging defendants with new offenses and proving their guilt beyond a reasonable doubt. People on probation could also be detained if they present an "identifiable threat to public safety," language that conceivably includes a person experiencing a mental-health crisis — or however a judge, in their sole discretion, defines a "threat" and "public safety."

"If I'm a judge, and there's no list of things that I should be revoking and incarcerating people for, then discretion cuts both ways — you can have discretion and be a terror with the 'vindication' provision or you can cut people some slack," Randol said. "Now there's a list."

Overall, the ACLU sees SB 913 as a missed opportunity, a bill that shuffles the deck but doesn't clearly improve the outcome.

"It feels antiquated already," Randol said, "just given, comparatively speaking, what some counties are already doing."

How Philadelphia cut its rolls

In 2018, Philadelphia District Attorney Larry Krasner announced his intention to significantly reduce the number of people living under state supervision. At the time, 42,000 people, or around 1 in 23 adults in the county, were on probation or parole.

The first change was instructing prosecutors to reduce or eliminate sentencing "tails," which is when someone is both sent to prison and put on probation once they get out. The second major change was limiting probation terms: a maximum of three years for a felony and a year for a misdemeanor, with a stated goal of half that time for each type of offense.

By April 2021, the number of people on supervision in Philadelphia had fallen 33%, to fewer than 28,000.

According to a report from the DA's office, there was no statistically significant difference in rates of recidivism between those sentenced under the new policies and those sentenced earlier to longer probation terms, suggesting, "for the vast majority of people, long periods of community supervision add little supportive value to their lives and have no discernible effect on community safety."

Byron Cotter, director of alternative sentencing at the Defender Association of Philadelphia, said it's been a tremendous help having a DA in office who wants to reduce the number of people living under supervision. Now, when he and other attorneys appear in court to request early termination of a client's probation, they are often accompanied by someone from Krasner's office, which goes a long way toward persuading a judge.

But in Pennsylvania's largest city, as in any of its more rural counties, a person's life can be suddenly upended over a minor infraction.

"Say a client is on probation. He stops reporting, but he commits no new crimes. He's successful. He has employment. He's supporting his family. And it's been five years [on probation]," Cotter said.

Then one day he's pulled over for speeding, and the police officer sees that he has a probation warrant for that technical violation — for failing to report to his probation officer.

He's not just going to get locked up.

"He's going to lose his job," Cotter said. "Often he'll lose his apartment. It really hurts his family. His kids have no way to get to school. Now, 20 days later, he gets before a judge and I stand up and say, 'Your honor, this client has achieved what we've wanted him to achieve. He's committed no new crimes. I not only want you to lift the warrant, but terminate the probation.' And often the probation is terminated right there."

But the damage is already done. And there's nothing in the recently passed probation-reform bill that would stop it from happening again.

One path forward is simply reducing the number of people on supervision and the amount of time they're under it. A person who has followed all the rules could, for example, have their probation automatically terminated at the halfway point, instead of having to request it themselves. Under SB 913, the burden is shifted, but only slightly: There is still a presumption that a person who has not reoffended must prove their worthiness, but their probation officer — managing over a hundred cases at once — is now charged with identifying clients eligible for early termination and writing them a recommendation.

The legislature could also encourage counties to pursue alternatives to a jail-first policy on stated probation violations.

"What we would like to see is a summons process," Kate Parker, director of policy at the Defenders Association of Philadelphia, said in an interview. That means when someone is accused of a technical violation — a failure to report or failure to submit a letter documenting they completed drug rehabilitation — they get a chance to answer for their behavior before a court instead of first serving a de facto 20-day sentence.

"We're talking about having folks receive a summons in the mail to come to court and answer for why they didn't do what they allegedly didn't do rather than go directly to jail," Parker said.

In theory, counties could do that now.

The problem, Parker said, is "nobody wants to go first," a fact that could be remedied by linking the adoption of reform at the local level to the funding these jurisdictions receive from the state.

"I think if you ask the overwhelming majority of the public who they think shouldn't be in jail, folks who fall under technical violations — nonviolent behavior, who the courts ultimately decide don't warrant additional incarceration — would fall into that group," she said.

A system few will defend

Though SB 913 would prevent someone's probation from being revoked because they can't pay a fine or court costs — probation itself costs a person between $25 and $75 a month, depending on the county — it would not do so for restitution.

Under the bill, a person who has paid half their debt to a victim or business and otherwise qualifies for early termination would be placed into a new "administrative probation" with reduced reporting requirements. They would be required to continue making payments on a schedule they "can afford to pay," but public defenders have complained that judges rarely examine bank records and other financial obligations before deciding whether a person isn't making good on their restitution due to obstinance or hardship.

"I'll be blunt," Muth said in an interview. "I work with people — probably the majority of the people in the Senate — who have never had to live paycheck to paycheck or pay student loan bills."

Most also have no idea what it means to be on probation. If they did, Muth argued, the bill might have addressed what she sees as the most glaring flaws in the system: the uncapped length of probation, the indefinite extensions of state supervision, and the "detainers" that allow people in her district to be held for months before they have a hearing on their alleged technical violation.

It also does nothing to curtail what constitutes a technical violation, which she sees as setting a trap for those on probation, triggering the cycle of poverty and incarceration. Whether it's 70 days waiting for a hearing or less than a week, any time in jail is enough to lose a job — detention itself is a traumatic experience that, depending on the mood of a probation officer or the policy of their office, can be prompted by the mundane.

"It's a whole ordeal, just to live your basic life," she said in an interview. "Like calling 911. What are you supposed to tell them? 'Please take me to a hospital in the county because, like, I'm going to get a technical violation?'"

In 2018, just under 11% of Pennsylvanians under supervision had their probation revoked, the majority for technical violations.

To Muth and other critics of the supervision status quo, that represents thousands of lives disrupted by a system of arbitrary and arbitrarily enforced tripwires, leading to people being removed from their family and friends, at least temporarily, for behavior that isn't criminal.

It is, among other things, an inefficient use of limited resources. From the perspective of a fiscal conservative, it makes no sense to monitor and repeatedly incarcerate someone when it would be cheaper and more effective to treat their underlying problems, be they economic, social, or behavioral. In Philadelphia, a 2019 report prepared for the city found it costs more than $48,000 a year, on average, to house an inmate.

"How the fuck do you justify that? That's not a system that's making people safer. That's locking people into poverty and being in prison," Muth said.

"And for people that don't care about this, because they're like, 'Oh, everyone should just behave themselves?'" she added. "You're paying for it."

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