ACLU Sues a Pennsylvania County for Detaining Probation Violators for Months With No Hearings

A Supreme Court ruling requires due process before sending these people back to jail. That’s not happening in Montgomery County.

A Pennsylvania county is locking up alleged probation violators for months with no court hearings to examine their cases, the American Civil Liberties Union claims in a class-action lawsuit filed Tuesday, in which the plaintiffs argue that the practice is an unconstitutional deprivation of liberty.

Montgomery County, just north of Philadelphia, has a practice of detaining people in jail for probation violations and waiting weeks or months before providing them a judicial hearing to determine whether they should be returned to prison. The ACLU argues in its suit filed before the Commonwealth Court of Pennsylvania that this practice denies these people of their rights to due process.

A Supreme Court ruling from 1973, Gagnon v. Scarpello, establishes that people who face having their probation revoked have a right to a hearing first. Even though revoking somebody's probation isn't technically a new punishment, but a re-imposition of a previous sentence, the Court ruled 8-1 that it nevertheless may result in a substantial loss of liberty, and therefore these defendants are entitled to due process. Imagine the potential consequences otherwise: A person could end up back in jail for months or even years all based on just an accusation that they violated probation.

In Montgomery County, defendants are left in jail for weeks or months awaiting these hearings. According to the ACLU lawsuit, this ends up essentially being a form of punishment that pushes the defendants to plead guilty to a violation in hopes of a judge releasing them from jail. Without any sort of judicial assessment, probationers are sometimes being detained for long periods for minor crimes or even technical violations—like missed meetings with probation officers. These are problems that can be resolved without throwing these people back into cells.

The ACLU is representing six people who have been caught up in this system, and is looking for more plaintiffs to join the class action. Charles Gamber, one of the plaintiffs, has been in jail since August without a hearing because he "allegedly failed to complete a voluntary psychiatric program, did not take his medication as prescribed, and could not afford to pay $100 in fines." The lawsuit argues that

The 38th Judicial District's custom, practice or policy to automatically detain virtually everyone who is alleged to have violated the terms of their probation or parole, results in prolonged and unconstitutional detention. Applying such an irrebuttable presumption of detention pending a final revocation proceeding, particularly without affording any means to contest the confinement, constitutes a separate and independent constitutional due process violation under both the Pennsylvania and U.S. Constitutions.

The lawsuit names the leading judges and administrators of the 38th Judicial District serving Montgomery County. The lawsuit asks the Commonwealth Court of Pennsylvania to rule that these detention practices violate both the Pennsylvania and U.S. constitutions and to enjoin the county court from continuing to detain probation violators without timely hearings.

The Philadelphia Inquirer reported in 2019 how Montgomery County's system of detention jailed alleged probation violators. They covered this week's lawsuit and note that the leaders of the Montgomery County Board of Commission support Pennsylvania Senate Bill 5, which would put limits on probation-related detention. Among the changes would be a 30-day limit on detention for "administrative" or technical violations. The bill would further require that, before imprisoning a probationer for not paying fines or restitution, the court must determine whether he or she is financially unable to pay the money or is simply refusing to do so. The bill would also allow for early termination of probation after 18 months for those who keep their records clean.

S.B. 5, despite having both Democratic and Republican co-sponsors, has been sitting in the Senate's Judiciary Committee since it was introduced in March and has no recorded votes. Maybe a class-action lawsuit will force some consideration.