While probation may at one time have been an alternative to incarceration, it is now an alternative to freedom. Judges are reluctant to release people from jail or prison without first imposing a lengthy probation or parole sentence, despite research that shows that such sentences do not decrease the likelihood of recidivism or increase public safety, according to public policy organization, The Pew Charitable Trusts.
Probation expands the carceral state without a demonstrative increase in public safety, and yet its use is as widespread as ever. This current state of the probation system is demonstrative of the dangerousness of so-called criminal justice reform: even well-meaning advocates often advance “reforms” or “alternatives to incarceration” that ultimately only serve to entrench or further inflate mass incarceration. Pennsylvania’s Senate Bill 913 (SB 913) is the latest example of this harmful phenomenon.
At best, the bill’s proposed reforms appear superficial and conditional — they are subject to numerous restrictions and will not assist the vast majority of individuals on probation. Its primary reform proposes mandated probation review conferences for individuals with lengthy probation sentences.
Individuals are only eligible for these conferences after three years on probation for a misdemeanor or five years on probation for a felony. This is an exceptionally long period of time that, right off the bat, will exclude a large number of probationers. (Many people on probation for a long period of time are not serving a single lengthy probation sentence, but multiple short sentences as their probation is constantly revoked and reimposed.)
Additionally, eligibility for these probation review conferences is also subject to many limitations and requires several seemingly simple, but practically burdensome steps, including that the judge overseeing probation also must not perceive the defendant to be a “threat to public safety” — a vague and highly subjective standard.
Most important to note is that judges already have the authority to terminate probation early. Early termination of probation is already permitted; the creation of probation review conferences may in fact reduce the amount of early termination as judges may rely on this mechanism rather than take action themselves. It may also further confuse what is now a relatively straightforward process of early termination.
Aside from these flawed and convoluted review conferences, SB 913 offers no other potentially positive changes.
As mentioned, even well-meaning policymakers can unknowingly advance harmful reforms. However, the groups that support SB 913 are far from progressive: one of its loudest supporters is the Pennsylvania Safety Coalition, a political advocacy group that partners with far-right organizations such as the American Conservative Union, Americans for Prosperity Pennsylvania, and the Faith and Freedom Coalition. The bill is also supported by the Pennsylvania District Attorneys Association.
Conversely, the groups opposed to SB 913 include virtually all of the major progressive organizations in the state, including the ACLU of Pennsylvania, the Public Defender Association of PA, the Philadelphia Bail Fund, and dozens of other anti-carceral grassroots organizations across the state, including 1Hood and Casa San Jose. That alone should send a message to legislators about how they should approach this bill.
Probation is one of the primary drivers of mass incarceration; its scale and power must be reduced to move towards decarceration. Legislation such as SB 913, which offers limited, conditional benefits yet creates a high risk for future harm and entrenchment, is not the way towards this goal. It is a shame that this momentum is not used to advance effective decarceral initiatives.
Politicians assume that grassroots organizers are the uneducated ones who don’t understand the ins and outs of proposed legislation; in reality, they are the ones who clearly don’t understand the full context or potential impact of the bills that they advance. This bill’s unpopularity is blamed on “bad marketing,” when in reality it is just bad legislation."While probation may at one time have been an alternative to incarceration, it is now an alternative to freedom."
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Legislation is risky — there is always the chance that it may be warped to do more harm than good. To be worth that risk, it must offer at least some guarantee of meaningful decarceration. Unfortunately, SB 913 does not meet even that low bar, and instead entrenches many of the harmful practices we should be seeking to end.
Dolly Prabhu is a Staff Attorney and Equal Justice Works Fellow at the Abolitionist Law Center, a Pennsylvania-based nonprofit law firm and community organizing project working to build a world without police and prisons.
