Bibas
PHILADELPHIA - Detained for months on end, convicts who allegedly violated the terms of their probation have a second chance to prove an unfair system in Allegheny County rubber-stamps their fate.
The U.S. Court of Appeals for the Third Circuit on May 6 partly ruled for a group of probationers hoping to lead a class action lawsuit against the county's criminal court system and two judges they say keep them in jail before a final decision is reached at a clip much higher than other judges.
"Someone who has only been arrested is presumed innocent; someone who has been convicted and is serving his sentence of probation is not," wrote Judge Stephanos Bibas, formerly a professor of law and criminology at the University of Pennsylvania.
"This difference is why the government owes probationers less process before revoking their conditional liberty. Even so, it must give probationers some process."
The named plaintiffs were on probation but alleged by the county to have broken the rules. Charges include burglary, and probation detainers held them in jail even though they could have been eligible for release without them.
A preliminary hearing determines if there is probable cause the probationer violated his or her terms. A second hearing makes the ultimate decision on revocation.
The Third Circuit found Allegheny County provided improper notice to probationers as to when the first hearing would be held. The men alleged they were told right before, leaving them unable to mount a defense.
And once probable cause was found by a hearing officer, they remained in jail until the second hearing because judges upheld probation detainers. Four of them spent an average of 230 days in jail before the second hearing.
Attorneys at the Abolitionist Law Center and the Civil Rights Corps took up their case in 2022, suing in Pittsburgh federal court. The lawsuit said at least five prisoners with probation detainers died in Allegheny County jail from 2020-2022.
It also took aim at judges Anthony Mariani and Kelly Bigley, claiming anyone on probation who allegedly violates it will get stuck with the detainer. The plaintiffs said those judges ordered detention 85% of the time, while other judges did so in 71.5% of cases.
Attorneys studied 2,259 preliminary hearings before hearing officers, finding 53% of them lasted five minutes or less. It is alleged the probationers are given short notice, face testimony from a probation officer who reads the report of the new alleged crime and look to a public defender for help, even though they've never discussed the case with her or him.
Hearing officers then usually ask judges for detention, the suit says, and they oblige. Months go by in jail before a revocation hearing. Plaintiffs point to the differences in bail hearings, in which judges can review those decisions within a few days after a magistrate judge makes the initial determination.
"Instead, no review of the detainer ever occurs unless an individual files a motion to lift the detainer," the suit says. "As a practical matter, most people on probation do not have access to an attorney to file such a motion - even if they are indigent and qualify for a public defender."
The probationers alleged the court system failed to show it was necessary to detain them, but that claim was tossed as already decided by the U.S. Supreme Court in a previous case. However, the finding they weren't given adequate notice of their preliminary hearings opens more doors for their case.
"This remand renews plaintiffs' chance to press two potentially meritorious points that they forfeited on appeal by failing to argue them in their opening brief," Judge Bibas wrote.
"First, the long detentions, averaging 230 days, could be unreasonable. Second, there could be a material dispute about whether detention is mandatory: Are the hearing officers truly making independent findings of probable cause?"
