Redefining technical violations and reducing penalties

Theoretically, probation serves as an alternative to incarceration — offenders are allowed to go free but are placed under supervision, which includes certain conditions or rules that must be followed. Technical violations refer to a failure to comply with those conditions.

Conditions vary based on an offender’s crimes and background, but common ones include reporting to a probation officer, drug testing, counseling, maintaining steady employment, performing community service and paying restitution to victims.

But other conditions, Erin Haney said, are “tragically ridiculous and damaging,” resulting in frequent incarceration.

“In Pennsylvania, 54% of prison admissions are for supervision violations,” Haney said. “So there are more prison admissions for supervision violations than there are for people just committing new crimes.”

Haney cited the case of a man whose probation prohibited him from crossing county lines, making it difficult for him to find steady, well-paying work. Although he eventually did secure a job, he struggled to find affordable housing due to another condition that prevented him from living with his family since they also had a criminal record. On top of that, the man was required to pay fines and fees associated with his supervision.

“So what happened was they said, ‘Look, I have to choose between rent and paying my fines and fees.’ And the reality of it is, if I lose my housing, I’m not gonna be able to continue to abide by any of these conditions that you want me to abide by on supervision,” Haney said. “And unfortunately, instead of understanding that that was the situation, this individual’s probation officer found him in violation and incarcerated him.”

When the man was released, he had to look for a new job and housing, was given a longer probationary period with more stringent conditions and had higher penalties he was required to pay.

“And so each month, if he couldn’t pay, if they didn’t violate him, instead what they would do is extend his probation even longer, which meant he had that many more months of having to pay those fines and fees,” Haney said.

Courts were also able to revoke probation in favor of incarceration for squishier reasons — including indications that the defendant exhibited behavior that demonstrated it was likely they would commit a crime in the future, or in order to “vindicate the authority of the court.”

“The idea that a judge had indiscriminate authority to re-incarcerate someone simply to ‘vindicate the authority of the court’ was one of the most troubling aspects of the Commonwealth’s probation system,” Haney said. “This essentially allowed people to be deprived of their liberty not for committing a new crime, but merely for disappointing or disobeying the court in some way.”

Act 44 attempts to address these issues by prohibiting incarceration for minor technical violations, instead reserving imprisonment for more serious breaches like the commission of another crime, failure to complete court-mandated treatment or actions that pose a threat to public safety.

When technical violations lead to incarceration, the law limits confinement to 14 days for a first technical violation, 30 days for a second, and whatever “sentencing alternatives available at the time of initial sentencing” for third and subsequent violations.

Overall, the law mandates that probation conditions be as least restrictive as possible, and tailored to the individual’s personal needs and circumstances.

“So given the option between something that is incredibly invasive and intrusive or something that accomplishes the same goals with re-entry and rehabilitation and accountability and public safety, you have to go with the one that’s least restrictive,” Haney said.