HRW Comments on Proposed Changes to the PA Rules of Criminal Procedure

March 8, 2022

Joshua M. Yohe, Counsel
Criminal Procedural Rules Committee Supreme Court of Pennsylvania
Pennsylvania Judicial Center
PO Box 62635
Harrisburg, PA 17106-2635
criminalrules@pacourts.us

Dear Members of the Criminal Procedural Rules Committee:

Human Rights Watch (“HRW”) is a nonprofit international human rights organization that investigates and advocates to end human rights abuses, including in the United States criminal legal system. In 2017, HRW published “Not in it for Justice”: How California’s Pretrial Detention and Bail System Unfairly Punishes Poor People, a comprehensive report on the impact of pre-trial detention with a focus on California.[1] In 2020, Human Rights Watch and the American Civil Liberties Union published Revoked: How Probation and Parole Feed Mass Incarceration in the United States, a report documenting probation and parole (“supervision”) practices with a focus on three states including Pennsylvania.[2]

HRW applauds the Supreme Court of Pennsylvania’s Criminal Procedural Rules Committee (“the Committee”) for proposing rules that would make vital changes to Pennsylvania’s pre-trial and probation violation systems. If adopted and implemented, the rules would substantially limit the number of people jailed while awaiting trial or probation violation proceedings and provide critical due process protections.

HRW is concerned, however, that some proposed rules would cause harm, and others do not go far enough to protect due process rights. HRW urges the Committee to consider the following recommendations, detailed further below, that would limit incarceration and help people access needed resources in their communities:

1. Rule 520.1: Do not expand the purposes of detention to include risk of “self-harm” or “the integrity of the judicial system,” which would dramatically expand the use of incarceration, particularly for people with disabilities. Additionally, given many people do not appear for court due to transportation or childcare challenges, only permit detention to protect against willful non-appearance.
2. Rule 520.10: Wherever possible, provide voluntary, community-based supports and resources rather than imposing onerous release conditions. Where courts impose liberty-restricting conditions, require “clear and convincing evidence” that detention is necessary and proportionate to prevent the individual from physically harming another person or willfully fleeing from the legal proceedings.
3. Rules 520.18-520.19: Eliminate the use of algorithmic Risk Assessment Tools, which are inaccurate and replicate racial biases.
4. Rule 708.1(c): Do not permit probation detainers based on risk “to the defendant’s safety” or of non-willful flight.
5. Rule 708.1(d): Require Gagnon I hearings—or at least detention hearings—within 48 hours of arrest on a probation detainer, and heighten the standard to jail people pending Gagnon II hearings, to limit unnecessary and harmful incarceration.

***

Rule 520.1: Do Not Expand the Purposes of Detention to Include Risk of “Self-Harm” or “The Integrity of the Judicial System.” Require Evidence of Willful Non-Appearance.

Proposed Rule 520.1 would dramatically expand pre-trial incarceration in Pennsylvania. The proposed Rule subverts the primary purposes of bail according to Pennsylvania law—to ensure the appearance of those accused of crimes at legal proceedings and ensure the safety of any person and the community.[3] It also subverts the Committee’s express goal of “detaining the least number of people . . . as is necessary to reasonably ensure” these goals.”[4]  

Permitting incarceration to protect “the integrity of the judicial system” is unduly vague and could be interpreted to allow authorities to jail people for any reason—including arbitrary or discriminatory factors, and reasons unrelated to community safety or risk of flight. The comment section of this proposed rule states that "reasonably assuring the integrity of the judicial system includes protection against likely witness intimidation and destruction of evidence." In certain circumstances, after a thorough evidentiary hearing, these may be legitimate reasons to permit incarceration[5] but even assuming these comments are binding, they do not narrow this definition sufficiently to cure its vagueness. The Committee should eliminate this basis for detention.

Additionally, detaining people based on the likelihood they will harm themselves puts people with disabilities at a substantial risk of incarceration.[6] Nationwide, high numbers of people accused of crimes and serving terms of probation and parole have disabilities.[7] In Pennsylvania as of 2017, 29 percent of incarcerated people had a mental health condition.[8] Seventy percent of people admitted to Pennsylvania state prisons have substance-use disorders.[9] Given its likely disparate impact on people with disabilities, this provision risks failing to provide people with disabilities an equal opportunity to complete probation, parole, or pre-trial release, potentially in violation of the Americans with Disabilities Act (“ADA”)[10] and is inconsistent with international human rights standards prohibiting discrimination—including policies that have discriminatory effect, regardless of intent—on the basis of disability.[11]

Further, incarcerating people does not stop them from harming themselves and could in fact induce self-harm. Many people do not receive needed mental health services or substance use disorder treatment in jail.[12] Moreover, jail itself is traumatizing and can further destabilize peoples’ mental health, as well as make people struggling with substance use disorder more likely to use drugs and to overdose due to reduced tolerance upon release.[13] Incarcerated people also face higher risks of suicide than the general population: in 2020, suicides in Pennsylvania jails and prisons reached an all-time high, and occurred at a rate double the national average.[14] Instead of permitting detention based on perceived risk of self-harm, the Commonwealth should connect people with voluntary, community-based, mental health and substance use disorder services.[15]

Finally, the Committee should clarify the purpose of bail – to reasonably assure that the defendant does not willfully fail to appear for legal proceedings. Many accused individuals do not appear for court due to factors beyond their control, such as lack of transportation or childcare, or because they simply forgot their court date.[16] The Commonwealth should provide support—including court-appearance reminders as required by proposed Rule 520.18(c)—to help people appear for their court dates, not create rules that undermine this purpose.

Rule 520.10: Provide Supports, Rather Than Onerous Conditions, and Require “Clear and Convincing Evidence” to Impose Liberty-Restricting Conditions of Release.

Proposed Rule 520.10 permits magistrates to impose a host of probation-like conditions, including maintaining or seeking employment, complying with a curfew, regular reporting, and electronic monitoring. Many of these conditions are not necessary or proportionate to ensuring appearance in court and can infringe on rights.[17] Further, these rules are difficult to navigate without adequate resources such as stable housing, a steady job, and reliable transportation, and thus regularly lead to technical violations, especially for Black and brown people.[18] In 2017, a quarter of all Pennsylvania prison admissions stemmed from technical parole violations alone.[19]

Rather than requiring compliance with conditions, wherever possible the Commonwealth should connect people with voluntary, community-based services and supports, including assistance securing housing, employment, and mental health, or evidence-based substance use disorder treatment.[20] Additionally, the Commonwealth should offer supports including court date reminders[21]—as required by proposed Rule 520.18—and court transportation services,[22] which are less costly and rights restricting than incarceration or supervision and demonstrably curb failure to appear rates.[23]  

Where the Commonwealth imposes non-monetary conditions of release that restrict peoples’ liberty, it should demonstrate, by “clear and convincing evidence,” that the conditions are necessary to prevent willful flight or physical harm to another person.[24] Additionally, the Commonwealth should not require people to pay for conditions of their release, such as electronic monitoring or treatment programs.

Rules 520.18-520.19: Eliminate the use of Risk Assessment Tools.

The Committee should eliminate the use of algorithmic Risk Assessment Tools (“RATs”). RATs rely on data, such as criminal history, residential stability, and employment history, that contain race and class biases. They also make judgments based on statistical estimates of what people might do, that come from surveys of what others have done in the past, and their scoring systems are arbitrary and adjustable, thus easily manipulated to meet authorities’ perceived detention needs rather than what would be necessary on an individualized basis.[25] The results replicate and reinforce these biases, and therefore lead to poor people and Black and brown people being disproportionately labeled as “high risk”—making it more likely that they will be detained.[26]

Instead of relying on algorithms, courts should honor people’s due process rights by conducting thorough, individualized hearings.[27]

Rule 708.1(c): Do Not Permit Probation Detainers Based on Risk “to the Defendant’s safety” or of Non-Willful Flight.

Proposed Rule 708.1(c) provides critical limits on incarceration while people await probation violation proceedings. Today, probation authorities across Pennsylvania regularly jail people absent any evidence that they pose a flight or safety risk, including for technical violations and for new offense violations when they would otherwise be released pending trial.[28]

The proposed Rule’s prohibition on lodging detainers for alleged new offense violations, and for alleged technical violations absent an ongoing public safety or flight risk, are vital. However, for the reasons discussed with respect to proposed Rule 520.1 and in light of the disproportionate impact including language on “self-harm” would have on people with disabilities without justification, the Committee should not permit detention based on risk “to the defendant’s safety.” Further, where flight is at issue, the Committee should only permit detention based on risk of the defendant’s willful non-appearance.

Rule 708.1(d): Require Gagnon I Hearings—or Separate Detention Assessments—within 48 Hours, and Heighten the Standard for Detention.

Proposed Rule 708.1(d) offers crucial due process protections for Pennsylvanians incarcerated on detainers. Currently, there are no statewide regulations regarding when courts must hold Gagnon I hearings[29]—meaning in parts of Pennsylvania, people are incarcerated for months before any hearing.[30]

The proposed rule requiring a Gagnon I hearing within 14 days of detention is a significant step forward. Yet 14 days is far too long to incarcerate a person absent any assessment of the strength of the allegations against them, their willful flight, or public safety risk. Even a few days in jail can cause devastating harm, disrupting access to jobs, housing, health care, and family, while exposing people to violence, abuse, and illness behind bars.[31] Under international human rights law, anyone detained or arrested on a criminal charge, in all cases without exception, is entitled to a prompt hearing, generally within 48 hours of their detention.[32]

Where individuals are detained, the Committee should require the court to hold Gagnon I hearings within 48 hours of detention. If it is not feasible to hold a Gagnon I hearing within that time period, the court should at a minimum hold a detention hearing within 48 hours.[33]

Additionally, the court should specify the standard for incarcerating an individual pending their Gagnon II hearing—namely, a court should be permitted to order detention only upon a finding that detention is necessary and proportionate to prevent the accused from physically harming another person or willfully failing to appear for proceedings, and that no non-monetary condition or combination of conditions could ameliorate these risks. In this case, the court should be required to impose the least restrictive non-monetary conditions necessary to reasonably prevent physical harm to another person or willful flight, with a presumption of release without conditions.[34]

***

The proposed Rules would significantly limit incarceration for people accused of crimes and probation violations in Pennsylvania, and provide critical due process protections. However, some Rules would subvert that goal by expanding the bases for detention. HRW urges the Committee to adopt these recommendations to prevent unnecessary detention and help people get the services they need in their communities.

We would be happy to provide further information upon request.

Sincerely,

Laura Pitter (she/her)
Deputy Director, US Program
Human Rights Watch
Tel: (212) 216-1897
Twitter: @LauraPitter
Email: pitterl@hrw.org