PA- 3 offenders file suit claiming probation process unfair

2-17-2009 Pennsylvania:

In June, Darrell Keener was about to complete his two-year state prison sentence for corruption of minors. Following his release, the convicted sex offender was to serve an additional year of state probation.

But because he couldn't find housing in compliance with state regulations, that meant before even getting out of prison, he was back in, this time in the Allegheny County Jail -- on a technical probation violation.

He's been there for more than seven months without a hearing.

Mr. Keener is one of three men who recently filed a federal lawsuit against the director of the state Board of Probation and Parole, Catherine C. McVey, claiming that her organization has failed to provide required due process.

The men are seeking to have the complaint certified as a class action, though their lawsuit specifically states that it is unknown how large the class might be.

As of the end of 2008, 757 defendants from Allegheny County were serving state probation.

Generally in Pennsylvania, a suspect who has been arrested has a preliminary arraignment within hours to be informed of the charges. A preliminary hearing, to determine if enough evidence exists to warrant holding a suspect for trial, must be held within three to 10 days.

That kind of due process of law is required under the 14th Amendment of the U.S. Constitution.

The same kind of process is provided to defendants who are picked up on parole violations through regulations set by the Pennsylvania Board of Probation and Parole.

But there are no such regulations for state probationers.

And even though U.S. Supreme Court decisions have dealt specifically with probation, there is no time requirement concerning how quickly prisoners must have hearings. Instead, those cases require only that a hearing be held "as promptly as convenient after arrest while information is fresh and sources are available."

The case that set that precedent is from 1972, and in all the years since the court has never defined what "as promptly as convenient" means.

"You can't argue in any sense of the word that an 87-day delay, or a 217-day delay, is 'prompt,'" said attorney Kevin Quisenberry, who represents the plaintiffs.

He said he hopes the lawsuit will force the state to implement a time frame for probationers so they have the opportunity to have their cases heard more quickly.

"We're not trying to get freedom for people," Mr. Quisenberry said. "We're trying to get process for people."

Under the law, a person picked up for a technical probation violation has the right to what is known as a Gagnon I hearing -- an administrative proceeding where a judge determines if there is probable cause to show that a violation has occurred.

If the judge makes such a determination, a Gagnon II hearing will follow and could result in formal revocation.

The lawsuit alleges that it is the policy and practice of the state board to incarcerate probationers without providing notice and a prompt preliminary hearing.

The way the process is supposed to work, according to state board spokesman Leo Dunn, is that if a violation is alleged, the probation officer takes that information to the court and requests a hearing on the matter.

Jim Rieland, director of Allegheny County Probation, said his office is then responsible for scheduling the hearing. Sometimes, because of court calendars thick with cases, it can take a month or more to get a state probation hearing before a judge.

"Any time you don't have time frames -- and you have discretion -- you don't have the same sense of urgency," Mr. Rieland said.

No one will say what caused the delays for the three plaintiffs in the lawsuit. However, shortly after their complaint was filed and a request was made for a temporary restraining order, state attorneys filed a motion saying their request was moot because parole board agents that day faxed a request to Common Pleas Court for a hearing.

U.S. Magistrate Judge Cathy Bissoon granted the plaintiffs' motion and ordered the state Board of Probation and Parole to make a formal request to schedule their Gagnon I hearings. A hearing for a preliminary injunction in their lawsuit had been scheduled for Friday but has been postponed indefinitely.

Last week, the state filed a motion asking that the case be dismissed, claiming that the board does not have the power to create new law regarding probationers because they are still under the jurisdiction of the courts.

"The Board (or an arresting officer) cannot be responsible for the constitutionality of criminal rules which they do not execute," wrote attorney Mary Lynch Friedline, an attorney for the state.

Further, the board argues that the actual scope of the lawsuit encompasses the authority of each county's court of common pleas and the Pennsylvania rules of criminal procedure. Again, the state argued in its brief, the board has no control over those.

Raymond L. Billotte, the Allegheny County district court administrator, said if there is a delay in the process for state probationers, his organization and the state should work cooperatively to identify the problem and correct it.

"As a general rule, being in jail for 200 days without any kind of hearing does seem to be problematic," Mr. Billotte said.

Defendants serving county probation usually have a Gagnon I hearing within a week of being picked up for a violation. The hearings are held twice each week in the basement of the county jail.

Without scheduling probation violation hearings quickly, Mr. Billotte said, "We would just cripple the jail."

In addition to losing their freedom by being incarcerated, there can be other consequences for the probationers, as well.

"Certainly, when you have someone incarcerated, they're going to lose their job, lose their apartment," Mr. Rieland said. "Then you're really starting from a negative position."

For sex offenders, the problems can be multiplied by new residency requirements prohibiting them from living close to children or places that children frequent. That often makes it difficult for them to find acceptable housing. That was the case for all three plaintiffs in the lawsuit against the Board of Probation and Parole.

Mr. Keener submitted four housing plans. All were rejected by the state.

But a goal of probation, Mr. Rieland said, is to help offenders become productive again, and the type of offense doesn't figure in.

"However disagreeable an offense might be to the general public ... every individual has the same rights no matter what their crime is," he said. "What we're trying to do is change the focus of probation to help an offender change behavior."

That means the quicker a violation is discovered and heard before a judge, the quicker that offender can get back on a supervision plan that might be effective, he said.

"The easiest thing we do is lock people up," Mr. Rieland said.

Due process is especially important in instances where a person's liberty is at stake, said Michael Jacobson, the director of the Vera Institute of Justice in New York City.

He called it a "moral and ethical burden" on the system to respond to those cases quickly.

"You're spending tons of money to keep someone in jail when they're not even accused of any new crime," Mr. Jacobson said.

Part of the problem, he said, is that often judges don't regard probation violations with the same level of seriousness as other cases.

"It has implications across the board. But unfortunately, it's such an inside-baseball, in-the-bowels-of-the-system kind of thing, that it's hard to make a case to the public," Mr. Jacobson said. ..News Source.. by Paula Reed Ward, Pittsburgh Post-Gazette