Over his first year in office, Philadelphia District Attorney Larry Krasner rolled out a series of internal policies described as “an effort to end mass incarceration": seeking shorter sentences, diverting low-level offenses from the justice system, and charging crimes at a lower level.
Now, he’s looking to the next step. “One of our big priorities this year," he said, "is to try to address mass supervision — which, of course, would be both probation and parole.”
Philadelphia counted 42,000 people on county supervision at the end of 2017, or one in 22 adults. Statewide, Pennsylvanians are under correctional control at the second-highest rate in the nation, behind Georgia, and has the highest rate of parolees.
“I think people instinctively believed too much supervision is not enough. But it turns out too much supervision is too much. ... It does tremendous harm, and it costs a fortune,” Krasner said in an interview outlining policies to be announced Thursday. Nationally, about 40 percent of people on probation are reincarcerated, making community supervision a major driver of incarceration. About 40 percent of Philadelphia’s jail population is being held on a detainer for a violation of probation or parole.
His plan? To put his office’s weight behind a push to drastically curtail terms of supervision, which can stretch on for years or even decades, long after prison and jail sentences have been concluded.
Under the new policy, on top of any sentence of incarceration for a felony, assistant district attorneys will seek community supervision terms averaging 18 months, with a ceiling of three years. For misdemeanors, they’ll seek probation or parole terms around six months, not to exceed one year of combined community supervision.
And, going forward, Krasner said, “Parole should not be longer than the period of incarceration.”
Under the new policy, someone facing a misdemeanor drug charge, who in the past might have a faced a sentence of three to 23 months in jail, plus a year on probation, would instead face just three to six months in jail, plus at most nine months’ probation. A person convicted of a felony who in the past may have received two to four years in prison plus two years probation would now receive that prison time plus six months or at most one year of probation.
(The policies are presumptive, but supervisors will be able to make exceptions as needed. They’ll also have to work within state law, which requires that a maximum prison sentence be at least double the minimum.)
Krasner said the shift is influenced by reforms taking place around the country that have rendered Pennsylvania an outlier, as well as by research that’s found most recidivism — and most benefits of probation — occur within a few years after release from prison. Under the state’s unusual laws, probation can last far longer than in other states — as long as the maximum legal prison term. A consensus statement by criminologists, probation officials, prosecutors and others convened by Harvard’s Kennedy School in 2017 recommended capping supervision terms at two years and creating provisions for early termination.
“What happens is, there’s a period of time when the supervision for some people is useful and is a good thing,” Krasner said. “But after that, it just becomes a bunch of tripwires that very few of us could ever keep dancing over.”
Vincent Schiraldi, co-director of Columbia University’s Justice Lab and former commissioner of New York City’s Department of Probation, would go even further.
“There’s good evidence that most of the impact of probation supervision comes in the first year," he said. "That’s when most crimes occur. But there’s evidence that the impact of supervision wanes after a year. That means every day after a year, you’re getting diminishing returns, and you’re getting it on a system that’s generally overburdened.”
In 2017 alone, more than 6,000 people in Philadelphia were sentenced to probation terms of four years or longer, according to an Inquirer analysis of court data. More than 600 of those are on probation for at least eight years.
Schiraldi believes Philadelphia is the first city where the district attorney is leading probation reform efforts, though a similar policy is being developed in Dallas. There are limits on the District Attorney’s Office’s power to curb long supervision terms; Krasner expects this policy to have the greatest effect among cases that are resolved by agreement, which are the vast majority of the cases in Philadelphia’s justice system.
Judges have the authority to approve or reject any negotiated agreements, and to accept or ignore the district attorney’s recommendations.
The court administration is interested in advancing the issue, according to Gabriel Roberts, a spokesperson for the First Judicial District.
“The court has been an active and willing partner in our city’s mission to reduce both the number of individuals who are incarcerate and under court supervision," he said. "We’re eager to continue this work, in conjunction with our justice partners, in order to advance the significant progress we’ve already made.”
But Krasner’s changes around community supervision have run up against judicial resistance in the past.
The office in February of 2018 said it would not seek punishment of probationers for marijuana use, yet people on probation who test positive for marijuana continue to risk arrest. And, while Krasner announced a year ago he would seek only short punitive terms for violations — no more than six to 12 months in prison for violations that are not new crimes, and no more than two years for violations involving new convictions — some judges have been more receptive to those shifts than others. Some violators continue to face jail or prison terms of months or years for probation violations ranging from drug use to nonreporting to new criminal convictions.
Even so, Krasner is seeking to push those changes further under the newest iteration of his policy.
“We want our ADAs to make recommendations at all violation hearings and not simply defer to the court. For technical violations, we are not recommending more than 30 to 60 days in custody and for most instances we are not recommending custody.” For direct violations — that is, new criminal convictions — he’s urging a rethinking of the philosophy of “piling on” and questioning whether an additional sentence is required.
Schiraldi said that fewer people on probation will lead to more effective supervision. Current caseloads, which in Philadelphia average 145 probationers to one probation officer, are too high, he said. He said he spoke recently to Pennsylvania’s probation officers’ association about similar reforms proposed in the state legislature.
“They did not run screaming from the room,” he said. “They know they’re not getting more resources, but they keep getting more bodies. In some respects, that washes out your ability to do the job.”
Krasner said he expects his changes to take time to be adopted.
“We have seen over and over that when we do things the right way, there has been some resistance,” he said. But he pointed to collaborative efforts underway with the Defender Association to engage with the courts to create a more systematic approach to terminating probation early for those who no longer require supervision.
“It’s our hope that the public will be safer and supervision by probation and parole will be more effective," Krasner said. "What’s required for that is very seriously downsizing the rolls of probationers and parolees, so it can be focused and it can be surgical — as opposed to the current scattershot approach.”