Two weeks ago, we delved into how state House Dems politically miscalculated by seeming to reject a bipartisan budget deal that would have funded public schools at a historic rate while, at the same time, providing $100 million for private school vouchers. Hello, impasse.
But here’s another one for you: Even when state legislators can find common ground across the aisle, the left-wing activist crowd will often stand in the way of the very progress they purport to favor, often preferring the issue to the solution — whether due to ideology, pure power politics, or some combination of the two.
The latest example is Senate Bill 838. It’s a groundbreaking criminal justice reform bill that would — finally — address the grand inequities in our antiquated probation system. How bad is it? Pennsylvania is one of the worst in the nation when it comes to mass punishment. Nearly 250,000 of our fellow citizens are incarcerated or under community supervision, with 94,000 subject to probation. Nearly two-thirds of those on probation will re-offend and go right back to prison, many for nonviolent or technical violations, like being late for or missing a meeting with a probation officer or making an unlawful U-turn.
According to the REFORM Alliance, twice as many people are sent back to federal prison for such violations than for committing any new crime. Here in Pennsylvania, more than half of the Commonwealth’s inmates are incarcerated due to such technicalities. That which was meant to be an alternative to incarceration has actually fueled it.
“I can give two damns about the ACLU, and you can print that. They have no idea what it’s like to be caught up in these technical violations, like so many young Black men.” — State Sen. Anthony Williams
Rapper Meek Mill’s case put the issue front and center back in 2017, you’ll recall. He was carted off to jail for a phantom probation violation — 2 to 4 years, in the vindictive estimation of Judge Genece Brinkley, for popping a wheelie on a dirt bike and for breaking up a fight in an airport, neither of which warranted charges by themselves.
The injustice motivated Mill’s friend, billionaire Michael Rubin (who has been a supporter of The Citizen’s Ideas We Should Steal Festival), to start the REFORM Alliance, which lobbies state legislatures for bills like SB 838 — which passed the State Senate on a 45-4 vote and was sponsored by Republican Lisa Baker and Democrat Tony Williams. On July 7, the State House “removed it from the table,” which means it could be open for future consideration.
Even so, as in three of the last five years, the most vocal opposition to it has come from progressive groups like the Defender Association of Philadelphia and the Abolitionist Law Center in Allegheny County. They have taken their cue from the ACLU of Pennsylvania, which released a seven-page memo that argues the bill “not only fails to meaningfully reform our broken probation system, it threatens to make probation worse.”
Could that be? Could SB 838 be so wildly off base? Or is this a case of activists letting the politically unattainable great get in the way of the good, thereby effectively protecting the status quo?
What the bill does — and doesn’t — say
I caught up with Senator Williams this week, who was, uh, quite exercised. “I can give two damns about the ACLU, and you can print that,” he said. “They’re sitting in their privileged positions, having their glasses of wine on their porches Friday evenings, and they have no idea what it’s like to be caught up in these technical violations, like so many young Black men.
It’s the most ignorant and elitist position I’ve ever heard. As legislators, our role is to negotiate our way to a compromise that advances the interests of the citizens of the Commonwealth. That’s what we did here, Republicans and Democrats. But the way our politics have devolved, it’s like, Either you believe 100 percent of what I believe, or it’s nothing.”
Let’s look at what the bill actually says, and compare that to the ACLU’s rhetoric. First, a note of much-needed context: This is not your grandfather’s ACLU. Once upon a time, under the leadership of legendary leaders like Ira Glasser and Nadine Strosser, the ACLU was the nation’s moral referee. But now, as Glasser has pointed out, the organization that once defended the free speech rights of neo-Nazis in Skokie, Illinois, has, since Charlottesville, become just another progressive interest group, announcing that it would henceforth balance defending groups whose “values are contrary to our values” against the potential “offense to marginalized groups.”
A cursory look at the ACLU Pennsylvania chapter caseload indicates that it may be following suit; there seem to be a lot more cases on its docket like the one with the activist group Juntos taking on the Philadelphia Immigration and Customs Enforcement (ICE) office than, say, the one admirably protecting the right of students in the Saucon Valley School District to have an “After School Satan Club.”
What the ACLU doesn’t acknowledge is the precedent for SB 838. It’s informed by a successful experiment in York, Pennsylvania, which laudably didn’t wait for the state to enact its own reforms. There, through the use of risk assessment tools and incentivizing behavior change, the county’s Probation and Parole Department has released 1,000 people on early termination, and 95 percent have not returned with a new offense. It has slashed its supervision population from 12,000 to 7,000. Arrests have dropped, and so have violation reports.
So what does SB 838 actually do? Read the bill. Four things make it imperative legislation: It defines “technical violation,” for the first time ever; it removes language that gives judges sweeping powers — “to vindicate the authority of the court;” it sets up a series of incentives — undergoing drug treatment or getting a GED — that can lessen or terminate supervision, as has worked in York; and it effectively caps probation sentences at two years for misdemeanors and four for felonies.
The ACLU takes issue with the last of those, stating that “SB 838 fails to cap probation terms.” The group further writes that it “fails to provide an automatic, or even efficient, way to terminate probation early. Instead, SB 838 presumes that judges will accept recommendations from probation officers, including for early termination, as long as no one objects and the person meets the eligibility requirements to even be considered for termination.”
“We’re negotiating outside of Philadelphia with DAs and others that would not allow the ideal bill to pass. I’ve been a part of this before, where you have to get what you can get today so you can build momentum and power so you can get more tomorrow.” — REFORM Alliance CEO Robert Rooks
They’re right — there is no explicitly declared cap on probation terms, as other states have done. Would it be better if the legislation had just stated outright that misdemeanor probation would be capped at two years and felonies at three, as Michigan did in 2020, among other reforms? Of course. But laws are imperfect things, and, in the interest of crafting an overwhelmingly bipartisan approach, lawmakers settled for said caps in effect.
The law mandates a probation review conference that “shall [italics added] terminate probation unless the court finds” conditions such as if the defendant is a “clear and present danger to public safety” or “is the subject of an active protection from abuse order” or has “not successfully completed all treatment or other programs required as a condition of probation” — virtually assuring the caps the ACLU says it wants. Or does the ACLU and the other groups joining it in opposition actually believe the state has no overriding interest in at least considering the supervision of those who are found to endanger public safety?
The ACLU brief is disingenuous in other ways, too. The argument that “SB 838 would explicitly permit revocation and incarceration for basic and routine technical violations,” for example, fails to observe that the bill starts by saying just the opposite: “There is a presumption against total confinement for technical violations of probation.” And then SB 838 essentially redefines “technical violation” — out is going to a family barbecue and finding oneself in close proximity to a one-time felon; in is “assaultive behavior” and “possession or control of a firearm.” ACLU: If you think that someone who, while on probation, is in possession of a firearm and has been accused of assault ought to be automatically granted revocation anyway, just come out and say so.
Better than what we have now?
I keep coming back to Sen. Williams’ point — that the opposition led by the ACLU is really about a reflexive allergy to compromise. “I have one question for you,” Williams says. “Is this bill better than what we have now?”
The answer to that is self-evident. Two years ago, when an earlier bipartisan version of SB 838 — SB 913 — was also shouted down by activists, REFORM Alliance CEO Robert Rooks was asked about it at our Ideas We Should Steal Festival. His answer was a master class in how to get shit done, a testament to the power of not letting the perfect be the enemy of the good:
I think it’s 100 percent right to support the ACLU. I used to work for the ACLU. SB 913 addresses the harm and financial cost of Pennsylvania probation. It’s a bipartisan bill supported by Senators Williams and Baker. They actually define ‘technical violation,’ which is currently loosely defined and pretty much everybody gets caught up in that loose definition. By narrowly defining it, we believe it’s going to have impact. It also addresses some of the jurisdiction issues. Right now, if you’re on probation in Pennsylvania, you automatically inherit that you can’t go to certain jurisdictions — that is not the case in this current bill …
You need advocates on all parts of the continuum. They’re good people over at the ACLU, they’re holding the line on their side of the continuum, but we’re negotiating statewide. We’re negotiating outside of Philadelphia with DAs and others that would not allow the ideal bill to pass. I’ve been a part of this before, where you have to get what you can get today so you can build momentum and power so you can get more tomorrow.
That is the type of practical problem-solving Williams is talking about, and that too often no longer characterizes our politics.
This isn’t to say SB 838 is perfect. The ACLU’s brief makes some valid points — it may be on to something by objecting to the bill’s creation of “administrative probation,” which could keep those who owe restitution on probation until they’ve paid in full. (Though nothing in this bill appears to override current law, which makes nonpayment of fines or restitution a technical violation only if the defendant has the ability to pay and doesn’t do so.)
But we know from our history that all legislation is imperfect. We tend to deify Social Security today, right? The law all but eradicated poverty among senior citizens. FDR passed it in 1935; four years later, lawmakers went back and added survivor benefits for a retiree’s spouse and children. In 1956, disability benefits were added. Cost of Living Adjustments (COLAs) were first paid as a result of a 1972 law. In 1983, Congress passed a litany of amendments.
Today’s progressives ought to look back at what FDR, the father of progressivism, did in ’35. The rate of poverty among the nation’s elderly was hovering around 50 percent. He passed a law with a sense of urgency because real lives were at stake. And he had faith that the law would evolve as conditions on the ground changed.
Fast forward to 2023, when many young Black men, like Meek Mill, spend virtually their entire adult lives under oppressive state supervision, a system crying out for reform. Progressives used to be their cavalry. But now, for the third time in five years, groups like the ACLU run the risk of being the voice of “No” and the unwitting defender of an unjust — and unsafe — status quo.
MORE ON CRIMINAL JUSTICE REFORM FROM THE CITIZENMeek Mill speaks about criminal justice reform at City Council, with Senator Sharif Street behind him. Photo by Jared Piper for Philadelphia City Council.