How Minor Probation Violations Can Lead to Major Jail Time

Most pretrial detainees in Philadelphia’s jails are there for breaking the terms of their court supervision—not because they can’t afford bail.

Two inmates walk the halls of Philadelphia's Curran-Fromhold Correctional Facility. (Mark Makela / Reuters)

PHILADELPHIA—In the early-morning hours one day last August, 25-year-old Giovanni Guzman-Vegas closed up his family’s bar and went to pick up his seven-months-pregnant girlfriend from a babysitting gig. There, he said he found her upset: A man in the house, who’d accompanied the child’s mother home, had groped her while she was asleep on a couch.

A fight quickly ensued, with Guzman-Vegas punching the man and breaking his jaw, and his adversary pulling a gun. Only one of them called police: Guzman-Vegas was reported for an alleged assault.

Guzman-Vegas would go on to join Philadelphia’s notoriously overcrowded lockup, without the option of pretrial release. He fit the profile of many of the city’s detainees: He wasn’t jailed because his alleged offense was overly severe, or because a judge said he was a public-safety threat. Rather, it was solely because the new charge violated the terms of his probation. His detention triggered, Guzman-Vegas was held for months without bail before deciding to accept a plea deal.

The popular notion in Philadelphia is that the city’s jails are filled mostly with pretrial defendants too poor to pay bail—a group that does account for roughly 25 percent of those incarcerated.* But a much larger share, roughly 50 percent, is held under what is called a detainer, like Guzman-Vegas was. Not to be confused with an immigration detainer, this type is placed by a judge when a person already under court supervision violates their parole or probation by committing an infraction—minor or otherwise. Once a detainer is lodged, the possibility of bail is revoked.

Sometimes detainers are triggered when a person commits what’s called a technical violation, like failing to report to a probation officer or missing curfew. They can also be triggered by a new charge, as with Guzman-Vegas. On one hand, a detainer is somewhat of a second-strike penalty, because a person who’s already been convicted of a crime is again suspected of wrongdoing. But even the most minor of infractions can still result in defendants behind bars, while the backlogged court system processes their cases. Virtually the only alternative to waiting, and putting any work or personal obligations on hold, is to take a plea deal.

The pretrial detention of people who cannot afford bail is in many ways an easier cause for reform-minded advocates and policy makers to rally behind—they cut a more sympathetic figure, provided that poverty is the chief or only barrier to their freedom before trial. But to some lawyers who work with those on detainer, their clients represent a path to reform that’s hidden in plain sight. “Detainers are a very serious issue for our clients,” said Keir Bradford-Grey, Philadelphia’s chief public defender. “When someone has an open case, they are often held for months on end, causing significant personal hardships and making it harder for the individual to assist in their own defense.”

Despite the high number of people held on detainers, they rarely surface in public discussions about reducing Philadelphia’s jail population, which is housed in a six-facility complex in the city’s northeast. In recent years, crime rates have dropped here, but the city has stubbornly retained the highest rate of incarceration among the 10 largest U.S. cities. After officials secured a multimillion-dollar grant last year to reduce jail numbers, the population shrunk by about 12 percent, according to city data compiled through April. The downsize is largely attributed to reforms to the cash-bail system and shortened sentences for low-level nonviolent offenses, like DUIs.

By contrast, the number of people on this type of detainer has actually grown in the past year: from 2,800 in June 2016 to 3,302 in March. “The increase is disturbing,” David Rudovsky, a civil-rights attorney who has litigated against the city multiple times for jail overcrowding, wrote in an email. The specific reduction goals outlined in last year’s grant—issued by the MacArthur Foundation, which also supports “The Presence of Justice”—won’t be met “unless steps are taken to limit or more quickly deal with these detainers.” Rudovsky learned of the recent uptick from my inquiry, and added that “historically, too many persons have been held on detainers, and for too long.”

The city has taken some steps to reduce the number of detainees. One early experiment, led by the outgoing district attorney’s office, focused on probationers who are caught using drugs, another type of technical violation. As of April, 45 of them were offered drug treatment in lieu of incarceration. That effort, though, is perhaps the easiest officials could take: Those offenders are some of least cumbersome to identify and weed out. It doesn’t take a long hearing to determine that someone who was under supervision for drug use and was again caught using may benefit from medical intervention.

The more complicated cases, such as Guzman-Vegas’s, would require more substantive change. In Philadelphia, those involved in reform measures, including Bradford-Grey, declined to discuss specifics about what the city may or may not implement. But generally speaking, potential reforms could include putting time limits on the holds, offering bail, and making defendants’ initial hearings more trial-like—so that defense attorneys have time to prepare, and present witnesses or other evidence.

This detained population isn’t unique to Philadelphia, but their ranks are particularly large here. The Atlantic surveyed the 10 biggest jurisdictions in the country to learn their detention rates for parole or probation violations. Of the six that provided information, Philadelphia’s is uniquely high at 50 percent. It’s trailed by Texas’s Bexar County, where San Antonio is located, at 32 percent; New York City, at 21 percent; San Diego, at 10.6 percent; Texas’s Harris County, which includes Houston, at 5 percent; and Los Angeles County, at 4 percent. (The comparisons here are in some cases imperfect. Some rates are based on a recent, one-day snapshot of the inmate population, and others on a daily average from 2016. But it is clear that Philadelphia far exceeds the others.)

There’s no national survey that asks each jurisdiction how they handle parole or probation violators—whether they sometimes grant them bail before trial or detain them without it the way Philadelphia does. But a small sample of U.S. states indicates there is wide variety in how these people are processed. In New York, for example, a judge can still decide to set bail. In Texas, state legislators passed a law in 2015 to similarly allow bail according to judicial discretion.

One factor that likely contributes to the high rate here is the unusually high number of people who are under court supervision. Hundreds of thousands are on probation or parole in Pennsylvania; the state has the second-highest rate in the country, after Ohio. About 44,000 are in Philadelphia alone. (Officials from both the Office of the Court Administrator and the Adult Probation and Parole Department declined interview requests for this article.)

The Philadelphia Department of Prisons could not provide before press time a breakdown of what share of detainer holds were for technical violations versus new charges. But defense attorneys told me anecdotally that after years of pushback, judges now place holds for minor technical violations less frequently than they used to. Still, when new charges are involved, defense attorneys say judges almost always lodge a detainer—often at prosecutors’ request. “In my opinion, the DA’s office here likes detainers because they know that the longer someone sits, the more likely it is that they will resolve the case non-trial via guilty plea,” said defense attorney Evan Hughes, who is representing Guzman-Vegas. That lands prosecutors easy convictions, and saves time and other resources that would ordinarily be spent on trial proceedings.

The DA’s office disputes this claim: Officials there have “no interest in needlessly keeping defendants in jail any longer than necessary,” spokesman Cameron Kline wrote in an email. He added that judges and the Probation Department initiate the placement of detainers.

It’s not clear whether this slice of the jail population will see major reform under the next DA. They are so under the radar that their status rarely came up in the high-profile DA primary race last month. The Democratic winner and presumed DA-elect, progressive Larry Krasner, told me the issue wasn’t a major platform item because it’s “sophisticated and complicated. … It describes many scenarios, some of which call for detention.” If formally elected in November, he plans to push for cutting the length of holds for those with technical violations or new drug-related charges. Without pressure from the DA’s office, “it becomes very easy for the judge whose detainer has lodged to perpetually continue [holding the defendant],” he said. “A non-serious case can drag on and on.”

Guzman-Vegas ultimately accepted a plea deal in February to misdemeanor assault, after spending about five months in jail; it was his second misdemeanor in five years stemming from a fistfight. He was sentenced to 11-and-a-half months, with credit for time served, and two years of probation. Hughes said that his client took the deal to put an end to his detention—not because he backed down on his claim that the other man should be the one punished for allegedly brandishing a gun and groping his girlfriend.

“I felt very strongly about the defense that we would have presented and my client’s innocence. He acted in self-defense and in defense of others. It just didn’t make sense to fight the case anymore because of all the time he had already spent in jail,” Hughes said. “He had basically served his sentence before he was able to get his day in court.”

* This article originally misstated that one-third of Philadelphia's jail population is composed of pretrial defendants who cannot afford bail. We regret the error.