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Note - Probation Detainers in Philadelphia: A Due Process Dud


Cash bail has drawn significant popular attention as a target for criminal justice reformers, and for good reason: studies continue to demonstrate that negative outcomes are considerably more likely for people who are detained pre-trial. Despite possessing the presumption of innocence—at least theoretically—individuals who can’t afford bail and are detained pre-trial often lose jobs, housing, or even custody of children while awaiting adjudication. Many who are detained pre-trial will plead guilty—even if they are factually innocent, especially to low-level charges—in order to avoid spending months or longer in jail waiting for a trial.

This focus on cash bail reform is undoubtedly a worthy cause. In Philadelphia, as across the rest of the country, an important portion of the people filling the local jails are those accused of crimes who can’t afford bail. But there is also another population of people, facing similar detention and attendant consequences, whose situation has not received quite the same level of attention. The largest portion of Philadelphia’s jail population, by far, is made up of people who are held on a probation detainer. Probation detainers are a legal order that can be imposed when someone violates the terms of their probation; once lodged, an individual is jailed without the possibility of bail and held until their detainer is lifted. While these detainers are supposed to be within the sole purview of judges, in Philadelphia the reality on the ground is that individual probation officers, acting on their own, can have a probationer taken into custody and cause a detainer to be lodged against them.

This Note examines the world of due process issues surrounding Philadelphia’s use of probation detainers. To that end, this Note will review the history and rise of probation in the United States and the Commonwealth of Pennsylvania, examine contemporary probation law, and analyze the problem of detainers being used in a way that erodes the due process rights of people on probation.