As has become an annual tradition the past five years, another probation bill will likely be considered for a final vote in the Pennsylvania House soon this session. Senate Bill 838 (SB838), is a probation reform bill that — whether well-intended or not — misses the mark by a lot. The bill not only does not go far enough, which we could have lived with, but it also makes several aspects of probation even worse.

SB838 is another iteration of its predecessor Senate Bill 913 that failed in last year’s legislative session. Like its failed predecessor, SB838’s flaws have been well-documented; namely, that it will trap people who can’t afford to pay restitution on probation and will create new opportunities to incarcerate based on rule-based technical violations, while also creating a very dangerous new presumption of guilt, essentially making it easier to throw someone in jail based on only allegations.

How is it possible this bill is bad? Here are some examples. Under PA’s current law, arrests for 11 different crimes are considered violations of probation. Pennsylvania permits prosecutors to ask the court to revoke an individual’s probation based on an arrest alone. The defendants at these hearings can challenge the circumstances of the arrest. However, SB838 would allow the prosecutor to reincarcerate someone for the technical violation of the arrest as opposed to the circumstances of the arrest.

SB838 is such a convoluted piece of legislation it has failed to pass multiple times. In fact, the bill cannot stand alone as a piece of legislation because it would certainly be voted down (again).

This avoids the “hassle” of securing a conviction for a new offense, allowing people to be locked up for uncharged allegations of criminal misconduct, even if the underlying charges have been dismissed. If this language sounds like a prosecutor’s dream, you’re correct. It was drafted with input by the Pennsylvania District Attorneys Association.

SB838 also creates an entirely new category of probation — “administrative probation” — which would keep people on probation because they have not paid full restitution for their crimes. This new category of probation would also likely be found to be unconstitutional because denying termination of probation to people who have not paid restitution in full without an inability to pay hearing is not permissible by law.

SB838 is actually more restrictive than what some counties are already doing when it comes to reducing probation. It sets sentencing guidelines recommending people with misdemeanors be eligible for early termination of probation after two years and people with felonies after four years. However, the Philadelphia District Attorney’s office has issued guidance that prosecutors will consent to an early termination of probation petition at six months for misdemeanors and 18 months for felonies for most charges, as long as the defendant remains free of a new conviction during that time. And in York County, the Probation Department and District Attorney’s office cooperate to automatically terminate probation at two years or at the halfway mark of the person’s probation sentence for those with no violations and all conditions met.

SB838 even ignores the findings recently adopted by the PA Commission on Sentencing, which recommends limiting all probation sentences to 24 months, or up to 30 months when aggravating circumstances exist.

A convoluted piece of legislation

Having trouble following me so far? No worries, you are in crowded company. SB838 is such a convoluted piece of legislation it has failed to pass multiple times. In fact, the bill cannot stand alone as a piece of legislation because it would certainly be voted down (again).

The sponsor’s solution? Backroom dealing and bill trading. SB838 has now been attached as a rider to PA’s Clean Slate Act, a solid piece of criminal justice reform legislation that has bipartisan support. The Clean Slate Act gives Pennsylvanians with misdemeanors and certain felonies a second chance at life by providing them the opportunity to have their criminal record sealed if they are 10 years clear of incarceration. This act goes a step forward in eliminating the collateral consequences of incarceration that can severely impede quality of life via housing and employment.

In order for us to vote down SB838, we would have to vote down the Clean Slate Act. In this scenario, Clean Slate is the shield to a bad piece of legislation that has failed in the last three legislative cycles.

When it comes to advocacy, organizing and the struggle for good policy, some of the biggest red flags you will encounter time and time again are being told that you need to compromise, or that negotiating against yourself is how things get done, or not to “let the perfect be the enemy of good.” These cliches have more to do with excusing cynical shortcuts and bad faith legislative deal making than they do with progress for the people who continue to have their lives unfairly impacted by our punitive and messy justice system. Another red flag is to check on how a bill is written. If it’s hard to follow, hard to understand, and full of subjective levers, then it’s been written in bad faith. I challenge you to read SB838 and decide for yourself if it is a clear and coherent piece of legislation.

When it comes to advocacy, organizing and the struggle for good policy, some of the biggest red flags you will encounter time and time again are being told that you need to compromise, or that negotiating against yourself is how things get done, or not to “let the perfect be the enemy of good.”

Opposition to SB838 was never what impacted advocates like myself, Reuben Jones, Rev. Michelle Simmmons, and many others with feet down in the community wanted to spend time on. We know that PA’s horrific probation system wreaks havoc in the lives of countless Pennsylvanians, and we know that in order to stop the harm we need strong policy, and if SB838 offered even incrementally positive impacts we would all be supportive. The fact is, it does not, and may even do more harm. What, then, is the goal?

SB838’s supporters and opponents

Senator Anthony Williams, one of the bill’s co-sponsors in the Senate can hurl insults at the ACLU all day, but for people like me, it smacks of someone angry that they are being asked to do a better job, when we need that anger directed at our state legislator who knows very well that our probation system has been antithetical to public safety and public health, and have no good reason to keep the status quo in place.

But let’s dig deeper into the opposition to SB838. While the ACLU, work on probation litigation is well documented, is certainly part of the opposition Sen. Williams and The Citizen’s Larry Platt miss the fact that, unlike REFORM Alliance, the national criminal justice organization they praise and that is working to pass this bill in Pennsylvanian, the opposition to SB838 is being led by legal organizations that actually do probation work day in and day out across Pennsylvania.

The Abolitionist Law Center, of which I am the executive director, has scrapped the dockets of thousands of probation cases in Allegheny County and just this year produced a comprehensive report on the harm probation does to incarcerated people in Allegheny County. One of the findings of the report is that over 60 percent of the people incarcerated in Allegheny County jail are there on probation violations. These violations are the result of stacked probation sentences — or, in layman’s terms consecutive probation sentences imposed on defendants. It’s not uncommon for people to have three 2- to 6-year probation sentences imposed consecutively. SB838 would not benefit many of our constituents and clients in Allegheny County.

In addition, the Defender Association of Philadelphia, which has the highest number of people on probation in the state on their probation docket also opposes SB838. Their opposition is grounded, in part, in the simple fact that SB838 will do nothing to address the drivers of the probation trap in Philadelphia, including stacked probation sentences and split probation (state prison sentence followed by county probation) sentences. On top of that the changes to the presumption of guilt, and the dozens of other problems identified contributed to their opposition to SB838.

In an article last August, Platt touts a probation program in York County that had more success than our current system. There are things to praise about the York program for sure, but to compare it to SB838 is a bridge too far, and in fact some of Platt’s arguments against our opposition starkly contradict his support of the York program.

Settling for less is what people like myself have been asked to do for generations; to continue to ask that of me is an insult to all of us.

To put it as simply as possible, the York program functionally caps probation at 24 months, automatically terminates probation without any hearings, and the mechanism it uses is straightforward and easy to follow, unlike the convoluted, confusing mess that is SB838.

Lateral or backwards movement does not create momentum, it stifles it. We aren’t demanding perfection, nor are we striving for it. We are humans, perfection is not in our nature. What we refuse to do is continue to negotiate against ourselves so that the political establishment and organizations like REFORM Alliance can remain comfortable, concealed and pat themselves on the back for passing symbolic legislation.

Settling for less is what people like myself have been asked to do for generations; to continue to ask that of me is an insult to all of us. If what we were calling for was wrong, then we’d welcome anyone to point that out. What I keep hearing however, is that we are right, but we should accept continued slaps in the face, and not ask why. As a native Philadelphian, that is antithetical to my nature.

Robert Saleem Holbrook is the executive director of the Abolitionist Law Center and a Lecturer of Law at the University of Pennsylvania. He was sentenced to life without parole as a juvenile offender and served 27 years in prison. He was released in 2018. He has served on the transition team of Governor Josh Shapiro and was a member of the United States Civil Society Delegation at the United Nations Human Rights Committee this October in Geneva representing human rights abuses within the United States carceral state. He is The Citizen’s 2023 A. Leon Higginbotham Social Justice Activist of the Year.

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