A suite of celebrity-backed legislation pushes criminal justice changes in 11 states. In Pennsylvania and Virginia, they may prove too confusing to provide much help.
LAST JUNE, rapper Meek Mill stood behind then-Gov. Ralph Northam as the Virginia Democrat signed a probation reform bill into law. Meek Mill’s 11 years on probation, which started with gun and drug charges in Philadelphia when he was 19, inspired his push to reform the probation system that subjects more than 3.4 million adults in the United States to constant surveillance and supervision. In January 2019, Meek Mill and Jay-Z had announced the launch of REFORM Alliance, a $50 million criminal justice initiative backed by billionaires and stars including Robert Kraft, Michael Rubin, Priscilla Chan, and Van Jones. The group would work to improve the probation system in states across the country.
REFORM’s Virginia bill, which went into effect in July 2021, has had “unintended consequences,” Virginia Criminal Sentencing Commission deputy director Jody Fridley said during a commission meeting in September. Jurisdictions issued inconsistent interpretations of the new law, causing confusion, obstructing due process, and contributing to ongoing sentencing disparities in Virginia, he told his fellow members of the commission, which outlined the bill’s issues in an annual report. But REFORM is forging ahead in at least 10 other states, including Iowa, Florida, and Meek Mill’s home state of Pennsylvania, where a probation bill with provisions similar to Virginia’s passed the state Senate with overwhelming bipartisan support in December. It is now headed to the state House.
Meek Mill, who was sent back to prison in 2017 for probation violations including riding a dirt bike down an empty New York street while filming a music video, is the face of an unlikely coalition: Backing the bill along with his REFORM Alliance are the Pennsylvania chapter of the Koch brothers’ Americans for Prosperity and the Commonwealth Foundation, a right-wing think tank based in Harrisburg. More than 50 criminal justice reform groups oppose it. Critics say the legislation has been marketed as a progressive reform, but in practice, several of its provisions could make Pennsylvania’s already arcane probation system worse.
State lawmakers are under pressure to fast-track criminal justice reforms after Congress failed last year, despite President Joe Biden’s promise, to pass the George Floyd Justice in Policing Act. As some violent crimes jumped in 2020, police, pundits, and criminologists blamed reforms to cash bail and prosecution of low-level crimes in cities like Philadelphia, San Francisco, and New York. Some local achievements — like modest cuts to police budgets or bans on no-knock warrants — have since fallen flat, as police reversed cuts and topped off their budgets with billions more dollars. Earlier this month, police in Minneapolis, a city that had purportedly ended the use of no-knock warrants, killed 22-year-old Amir Locke while serving one. Some lawmakers in Pennsylvania, in particular, have shied away from pushing reform bills out of fear of being blamed for crime in cities like Philadelphia, where critics have focused their attention on calls to impeach reform-minded District Attorney Larry Krasner.
“This bill is indicative of the direction [criminal justice] reform is going that weakens the movement’s ability to create real reforms that would materially change the conditions of Black people,” Scott Roberts, senior director of criminal justice campaigns at Color of Change, told The Intercept. “This is a net-widening bill and will be duplicated all over the country.”
REFORM HAS WORKED on 15 bills, of which at least 13 have passed, in eight states, including Georgia, Mississippi, and Michigan. The group is working on at least four more in three states this session, including Pennsylvania, and said it is also working on a federal bill but hasn’t yet introduced it. Several other probation reform bills in Pennsylvania, which has some of the highest rates of probation in the country, failed in recent years before the Senate passed REFORM’s bill in December.
Pennsylvania state Sen. Nikil Saval, who represents Philadelphia, was one of only four lawmakers to vote against the bill, which passed with 46 votes. Saval’s evaluation was that the REFORM-backed bill “was at best extremely confusing and circuitous, and at worst, harmful to the cause that it’s purportedly devoted to.”
The REFORM-backed bill “was at best extremely confusing and circuitous, and at worst, harmful to the cause that it’s purportedly devoted to.”
The bill includes some good provisions, Saval said, like making it harder for someone to get a probation violation for leaving the county or area to which they are confined — as Meek Mill did in 2014. But it doesn’t cap the amount of time people spend on probation, which existing laws in most other states already do. Instead, it creates a process for people on probation to obtain a “review conference,” to be considered for release after completing three years of probation for a misdemeanor, and five for a felony conviction, and limits the amount of time they can be incarcerated for a probation violation while awaiting review. But the limit doesn’t apply for people who commit a technical violation within six months before their review conference, nor does it allow people who receive new convictions to terminate probation. People on probation are already eligible for review hearings, albeit without clear timelines, under current law.
And the caps on jail time only apply for people with up to two technical violations. According to the American Civil Liberties Union of Pennsylvania, which opposes the bill, that wouldn’t impact the majority of people on probation in the state. The group released an analysis noting that most people on probation for extended periods of time “would easily have three or more violations, which means that these limits would not apply to most people on probation.” REFORM said the bill wasn’t perfect, but it took significant steps to create pathways for up to 21 percent of Pennsylvanians to get off of probation within a year of the law’s implementation.
Another provision creates a new category called “administrative probation,” which requires people to pay all of their restitution before being released from probation. “We think that’s straight up unconstitutional,” said Liz Randol, legislative director at the ACLU of Pennsylvania. The new category serves, Randol wrote in an ACLU analysis, “the express purpose of keeping people on probation indefinitely because they have not paid or cannot afford to pay restitution.” The program was a compromise in lieu of implementing true caps, state Sen. Anthony Williams, who worked on several versions of probation bills that previously failed, told The Intercept.
The number of punitive measures the bill introduces are unnecessary and potentially harmful, Saval said, including allowing “any relevant officer or entity” to arrest or detain people suspected of violating their probation. REFORM told The Intercept the group doesn’t support that provision, and it was added to the bill at the last minute.
The provision “would sort of operate like a domestic ICE detainer,” Randol said. “I don’t know that this was intended. … Which is why this careless drafting is so infuriating.” Williams said his office was looking to tighten the provision’s confusing language.
Opponents also point to a provision in the bill that would empower law enforcement to detain people for whom “an additional term of total confinement is necessary” for evaluation or participation in court-ordered drug, alcohol, or mental health treatment. Critics note that this would effectively exempt people with mental health and substance abuse challenges from limits on the time they can be incarcerated for probation violations. REFORM objected to this characterization, saying that people waiting to be admitted to a mandated treatment program would be detained in the interim for their own benefit.
“I don’t know how this bill came into being and that people think it’s progressive rather than regressive.”
“I don’t know how this bill came into being and that people think it’s progressive rather than regressive,” said Byron Cotter, director of alternative sentencing at the Defender Association of Philadelphia, which opposes the bill. “It would have been [a progressive reform] in the early 2000s, but not now.”
REFORM Chief Advocacy Officer Jessica Jackson said the provision was modeled off of another program in California and was not unconstitutional. Jackson said the program “actually decreases the burden on the individual” by cutting the number of times they have to appear in the probation office to once a year.
Staff from REFORM met regularly with groups that had concerns with changes to earlier versions of the bill, Jackson told The Intercept. “While this bill does make improvements, we don’t believe that it causes any harm to any individual who is currently on probation,” she said. “And we think this is a first step. It won’t fix all the problems.”
REUBEN JONES, executive director of Frontline Dads and Pennsylvania policy lead for Dignity and Power Now, said REFORM represents “what they would call in the old days ‘carpetbaggers’ who rode into town, riding the wave of progressive politics.” Billionaires get to impact policy and legislation, Jones said, “then they move on to the next thing. … That’s all this is, opportunism.” Jones, who is currently on parole and was on probation as a juvenile, met twice with REFORM before the bill passed and raised concerns that it would create additional pathways for people on probation to be incarcerated.
Williams, the state senator, characterized the bill as a start, particularly given the climate in Harrisburg, where Republican lawmakers are afraid of looking soft on crime, and their colleagues are trying to get rid of Krasner in Philadelphia. “I’m not the guy running around here saying this is the progressive bill that many of us believed [in]. … If there is language in there that makes it worse than what it currently is, clearly we don’t want that to be in there,” Williams said. “In many of these legislative bodies, the Republicans are in charge. … The fact that we got this far is a miracle.”
“There has been a shift in the Republican legislature that is slowly turning from failed tough-on-crime sound bites to more nuanced perspectives.”
The bill’s supporters, including REFORM, say having bipartisan support behind a probation reform bill, even if it has flaws, is better than having a dead bill. “During my time in the Senate, there has been a shift in the Republican legislature that is slowly turning from failed tough-on-crime sound bites to more nuanced perspectives,” Democratic state Sen. Art Haywood, who voted for the bill and has been vocal in support of police reform, told The Intercept. “While Pennsylvania moves slower than other states in this area, it appears the trend is going in a positive direction.”
According to Senate Minority Leader Jay Costa, the bill wasn’t perfect but it was good enough. “There were certainly shortcomings to the bill and we didn’t get everything we wanted, but that is the case with nearly every piece of legislation that we vote on, especially being in the minority,” Costa said in a statement to The Intercept. “Specifically the limitations on courts’ power related to extension of parole for technical violations or for unpaid fines and fees are substantial improvements over the current system.”
Asked if he met with any of the groups that oppose the bill, Costa said he had met with many, “and their input is important to me, but sometimes perfect is the enemy of the good. As you can see from the final vote, the vast majority of my colleagues thought moving this bill forward was the right thing to do. And we still face a battle negotiating the bill in the House, so we’ll see how that plays out.”
House Democratic Leader Joanna McClinton, who spoke in recent months with some groups opposing the bill, declined to comment.
If Pennsylvania can pass this legislation, Williams said, it sets a precedent for other states where legislators are fearful of passing criminal justice reforms because of misleading narratives on crime. “If we’re able to move it in Pennsylvania, then other states that have general assemblies like ours, Republican and a lot of conservatives, then they at least have a benchmark. … Think about getting this bill out among Republicans who want to impeach our DA?”
Some national groups whose chapters oppose the REFORM-backed Pennsylvania bill worked with the group on measures in other states. In New Jersey and Georgia, respectively, the ACLU supported REFORM laws to allow some early releases because of the Covid-19 pandemic and to create a pathway for early termination of sentences. In Florida, where REFORM Alliance CEO Robert Rooks worked on the 2018 campaign to restore voting rights for people with felony convictions, the group is working on two other bills: one that would allow private entities to supervise probation for misdemeanors; and another that would provide additional incentives to shorten terms, as well as the option to report for probation remotely. A REFORM bill in Iowa this session would offer similar pathways to early termination — without a guarantee — but like Pennsylvania’s, it includes potentially harmful exemptions for people ordered to undergo mental health or substance abuse treatment.
To many critics, flawed reforms like the ones in Pennsylvania and Virginia point to more fundamental problems in the probation system. Probation programs were intended to create alternatives to sending people to jail or prison, Randol, of the ACLU, said. “It’s just set up right now for trip wires. And this bill does nothing to interrupt that at all.”
Correction: March 1, 2022
This story previously stated that the group Families Against Mandatory Minimums supports Pennsylvania’s REFORM legislation, but it does not. The reference to the group has been removed.