DEFENDER ASS OCIA I 0N
0F PHILADELPHIA

1441 Sansom Street
Philadelphia, PA 9102

 

KEIR 

CHIEF DEFENDER
(215) 568-3190
Memorandum
November 6, 2017
To: Honorable Sheila Woods?Skipper, President Judge, Court of Common Pleas

Honorable Marsha H. Neifield, President Judge, Municipal Court
CC: Honorable Leon W. Tucker, Supervising Judge

Honorable Jacqueline Allen, Administrative Judge

Charles J. Hoyt, Chief Probation Parole Of?cer

Richard McSorely, Deputy Court Administrator

Re: Changes in Detainer Procedures

This memorandum addresses proposed changes in practice for the imposition and review
of detainers. Currently, probation detainers are automatically lodged in a number of instances,
including, but not limited to: those classi?ed as ?high risk? who are arrested for a new offense, or
are charged with speci?c enumerated offenses (Le. murder, robbery, aggravated assault, rape or
involuntary deviate sexual intercourse). For the reasons stated herein, this process is against the
law and raises a number of public policy concerns. This memo also offers an alternative process
which, if adopted, will be fairer and more ef?cient, signi?cantly reduce the jail population, comply
with legal requirements, and be more cost effective.

A. Introduction

It is the exclusive province of the judge to initially decide on what conditions to impose on
a probationer or parolee. 42 9754. See, Commonwealth v. Vilsaint, 893 A.2d
753, 755-57 (Pa. Super. 2006) (probation of?cers have no authority to impose conditions of

probation).

Even when it is established at a ?nal hearing that a violation of conditions did occur it is
solely the judge?s decision whether incarceration is necessary because of the violation.
Pa.R.Crim.P. 708. gee also Morrissev v. Brewer, 408 US. 471, 480 (1972) (?Only if it is
determined that the parolee did violate the conditions does the second question arise: should the
parolee be recommitted to prison or should other steps be taken to protect society and improve
chances of rehabilitation?).

It is axiomatic that before a violation of probation or parole is established, as after, it is the
judge?s decision whether the probationer or parolee should be detained based on an alleged
violation. That it is solely a judicial function whether to lodge a detainer is made clear by the
unambiguous terms of the controlling Rule, Phila. Co. Crim. Div. Rule 910, discussed anfga.

The elimination of automatic detainers is not only legally required, but is also good policy.
The result will be fewer individuals who are needlessly incarcerated - those for whom an
individual consideration of their overall performance on probation would lead to the conclusion by
a Judge that incarceration is not now necessary for an alleged violation. This would help not only
individuals, but also a costly and overburdened prison system.

For those individuals charged with new offenses, the fact that an individual is on
probation or parole is already a factor in the bail decision, and the bail set will re?ect this, as well
as the circumstances of the new offense (a factor that cannot be takeninto account with an
automatic detainer system). Those defendants on probation or parole who warrant detention after
an individual determination will be kept in custody. Further, there is nothing to prevent the
Probation Department in individual cases from contacting the probation judge to seek the lodging

of a detainer.

Eliminating automatic detainers will result in fewer detainees. This will enable the entire
process for a proper judicial Gagnon I determination to be made speedier. What follows are
speci?c proposals for modifying current practices.

B. ?Detainers? Are A Judicial Function, And Automatic Detainers Are Only Permissible After

A Preliminary Hearing Has Been Held On New Charges.

1. Phila. Co. Crim. Div. Rule 910.

 

Philadelphia Rule 910 must be followed. It is a valid local rule, and it is not inconsistent
with any statute or statewide rule. E, gg, 103 Commonwealth v. Williams, 125
A.3d 425, 428 (Pa. Super. 2015).

a. Violation as the Result of a Subsequent Arrest (Rule 910 

Rule 910 unambiguously provides that whether a detainer is lodged is a judicial decision,
and that automatic detainers can only be imposed in limited circumstances after a defendant is held
for court following a preliminary hearing. The plain and unambiguous language of the court rule

cannot be ignored, nor any part of it. See, e. g, Commonwealth v. Lassiter, 722 A.2d 657, 660-61

 

(Pa. 1998) (language of statute must be followed, and no part is super?uous); Commonwealth v.
Mel, 165 A.3d 952, 959 (Pa. Super. 2017) (criminal procedure rules interpreted like statutes;
plain meaning controls).

The Rule provides that when an individual is arrested notice will be sent to the probation
judge. The notice provided after arrestis only for certain speci?ed serious offenses, and should
state that an automatic detainer will be lodged if the defendant is held for Court at the Preliminary
Hearing. The Rule further provides that after the preliminary hearing with a crime other than
those enumerated, no automatic detainer will be lodged. Even with the enumerated offenses, the

lodging of the detainer is, in reality, not automatic under Rule 910. It provides that the probation

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judge must respond to the notice of arrest by providing noti?cation that he approves of the lodging
of an automatic detainer if the defendant is held for court at the preliminary hearing. Aside from
these provisions addressing automatic detainers, there is the residual power of the probation judge
to, at any time, schedule the probationer before himself for a detainer hearing.

To sum up, Rule 910 is unambiguous in two respects. First, it provides that judges, and
not the Probation Department, have the authority to make decisions concerning whether an
individual is to be detained following an arrest on a new case. Second, ?automatic? detainers can

only be lodged for speci?c enumerated serious offenses, and only after a defendant been held

 

court following a preliminary hearing me, new 

b. Technical Violations (Rule 910 

Rule 910 unambiguously provides that the Probation Department has no authority to issue
?wanted cards? for a defendant for a technical violation. Its function is only to notify the judge of
an alleged technical violation. As Rule 910 states, ?the Probation Judge shall direct whether or
not ?wanted cards? shall be placed?. If the judge directs the Probation Department to lodge
wanted cards, and an arrest results, the Rule provides for a prompt 72 hour determination of
whether the probationer should be detained pending further hearings. Thus, according to the
plain and unambiguous terms of Rule 910 (B), it is the judge, and not the Probation Department,
who determines whether a probationer is to be arrested for an alleged technical violation, and
whether he should be detained pending a hearing if an arrest follows from a judicial order.

We recognize that there may be exceptional, exigent circumstances that could require an
arrest for a technical violation without prior authorization form the judge. However, following
the arrest, a judicial decision whether to detain would still have to be made very Qf,
Rule 910 (B). also County of Riverside v. McLaughlin, 500 U.S. 44 (1991) (warrantless

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arrest requires judicial determination within 48 hours of whether arrest is justi?ed).
2. Due Process Protections Prohibit Automatic Detainers Before A Preliminary Hearing.

In addition to Rule 910, there is a constitutional bar to the lodging of automatic detainers.
An arrest for an offense is something that happens to an individual. It is not conduct by the
defendant, only the consequence of a decision by police or prosecutors. ?An arrest is equally

consistent with either guilt or innocence.? Commonwealth v. Scott, 436 A.2d 607, 612 (Pa.

 

1981). Therefore, the mere fact of an?arrest may never be considered as evidence against an
individual for any purpose. Commonwealth V. Scott, supra; Commonwealth v. Jones, 50
A.3d 342, 344 (Pa. 1947). The automatic lodging of a detainer based on an arrest, without
considering all relevant individual considerations, including the probationer?s adjustment on
probation, therefore violates state law and due process. Further, it amounts to an irrebuttable
presumption of guilt and a need for immediate detention. Irrebuttable presumptions such as this
violate due process rights when, as here, they are not almost universally true. See generally, egg
Stanley v. Illinois, 405 U.S. 645 (1972); Commonwealth v. Clayton, 684 A.2d 1060, 1063 (Pa.
1996)

C. There Should Be A Single Detainer Hearing Held Before A Judge Within Seven-(7)

Working Days.

Under current practice there is an initial prison detainer hearing that is not before the
probation judge. That hearing provides minimal rights that do not comport with Gagnon 1 due
process requirements. Morrissev v. Brewer, 408 U.S. 471, 486-87 (1972) (outlining due
process rights at initial probation violation hearings). A second hearing is later scheduled before
a judge. We prepose removing this 10-day hearing, and providing a true Gagnon 1 hearing before
a judge. This change, along with other modifications (supra and infra), should help speed the

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process for holding meaningful hearings before the assigned judge, or a judge designated by the
Court to hear the case. The reduction in automatic detainers would reduce the volume of
summaries needed, and allow for more hearings to take place while someone is out of custody.

Morrissev v. Brewer, 408 US. 471 (1972), and Gagnon v. Scarpelli, 411 US. 778 (1973),

 

held that due process guarantees a ?preliminary hearing? on a detainer (gm 1 hearing), and
Morrissey requires that it be held ?as as convenient after arrest while information is fresh
and sources are available.? Morrissey, 40 US. at 485. Morrissey did not state a Speci?c time
limit for holding this hearing. Those courts that have considered the due process issue have
generally held that the hearing should be held within 10 calendar days.I Our proposal of a hearing
within 7 working days would be the equivalent because it would average to about 10 working
days.

1. Proth Speci?c Notice of the Violation Should Be Provided Within Three (3)
Working Days.

If copies of the violation notice are distributed to the detained probationer and counsel
within 3 working days this would generally provide enough time to prepare for a Gagnon 1 hearing

within 7 days. This is particularly so, if one needed change is made to the current violation notice

 

SQ, 9g? Commonwealth v. Ferguson, 761 A.2d 613, 619 (Pa. Super. 2000) (A
reasonable time standard; ?fteen day delay was reasonable here, particularly where there was only
a 9 day delay after petitioner advised that he had changed his previous decision indicating that he
would waive the hearing); Luther v. Molina, 627 F.2d 71, 74 n. 3 (7th Cir. 1980) (?It is possible that
a ten day delay between detention and the preliminary hearing does not 
requirements?); Valdivia v. Davis, 206 F.Supp.2d 1068, 1078 (ED. Cal. 2002) (holding that delay
of over 30 days was unconstitutional; remedy ordered was a preliminary hearing within 10 days);
L.H. v. Schwarzenegger, 519 F.Supp.2d 1072, 1085?86 (E.D. Cal. 2008) (holding 60 day delay
rule unconstitutional, but noting that adopting Valdivia 10 day due process requirement was
premature because detained juveniles here may not have same rights as adults); Pinzon v. Lane,
675 F.Supp. 429, 435-36 (N .D. Ill. 1987) (due process requires preliminary hearing within 10 days
of detention).

summaries that would enable counsel and the court to better focus on the initial issue at the
Gagnon 1 hearing of whether there is probable cause to believe that a condition of probation has
been violated. See Morrissey m.

The current violation notice form should be modi?ed to also contain a clear speci?c
succinct statement of the condition(s) allegedly violated, and the alleged conduct constituting the

alleged violation. An example is provided below:

 

ViOlation Charge
Condition - You are not to possess any?rearm
Alleged Violation - You did possess a

ri?e in your home at 1350 Elm Avenue
on August 29, 201 6

 

 

 

Speci?c written charge notice (like a criminal complaint) better enables the defendant
and his counsel to know what to defend against, and to prepare for the hearing. The written
charge notice also aids the court by focusing in advance on the precise issues the court will have to
resolve at the hearing. Further, the United States Supreme Court has held that Due Process
Clause guarantees speci?c ?written notice of the claimed violations of probation.? Qagngn, 411
US. at 786. Commonwealth v. Alexander, 331 A.2d 836 (Pa. Super. 1974). 42
?9771 (?The court may revoke an order of probation upon proof of the violation of

speci?ed conditions of the probation?).

D. Conclusion

For the reasons stated herein, it is our belief that changes are needed to bring Philadelphia
procedure into compliance with the law of Rule 910 and the protections of the and
Federal Constitutions.

I look forward to meeting with you to discuss these issues.

 

 

Keir Bradf 1? rey
Chief Defender