Updated (12/18/23): A bill signed last week by Gov. Josh Shapiro grants judges new authority to extend probation in cases of unpaid restitution, clashing with the ACLU’s interpretation of case law.
The new guidelines on probation sentencing came into force Dec. 14 amid a sweep of criminal reform bills as the legislature wrapped up for winter recess. Pennsylvania law now lists the failure to clear a total restitution balance as one of a handful of codified conditions delaying probation terminations.
The law also requires the inclusion of restitution payment details in status reports filed prior to probation review conferences, at which defendants have a shot at getting their sentences lifted.
In cases in which a defendant has demonstrated a “good faith effort” to clear their debt, they can be moved on to “administrative probation” – a new classification of sentencing laid out in the bill that prescribes court supervision with fewer conditions than standard probation.
A separate bill passed last week expanding the state’s expungement program – praised by some reformers – nonetheless mandates full payment of restitution for those seeking to clear their records.
Reported 10/12/2023:
Probation forever? Court ruling clarifies that unpaid restitution shouldn’t mean unending supervision
Nearly a decade after he was charged with pocketing $182,000 from a teachers union fund, Ed Maritz Jr. still lives with regret.
Thanks to a recent court ruling and some sharp legal research, though, he no longer lives with probation.
For several years, Maritz had been writing himself checks from the Pine-Richland Education Association account without detection, until he finally turned himself in in 2014.
“There was a lot of personal turmoil in my life, and very poor decisions on my part.” he said. “It’s what I would describe as the perfect storm in that people trusted me and I took advantage of that.”
He pled guilty to multiple felonies in 2015, and was sentenced to a year’s house arrest, followed by five more years under probation. He was also ordered to pay back what he’d taken. He vowed to serve his time, find new work and try to put things right.
Then, when his probation was set to conclude in September 2021, Maritz received a letter summoning him to a violation hearing because he had an outstanding balance on his restitution. He says he was advised by the officers to accept a two-year probation extension to “give him more time to pay.” Seeing no alternatives, he signed the papers.
“I did that because I didn’t know any better and I was scared,” he said.
Maritz says that since 2015 he’s consistently made payments ranging from $50 to $300, depending on his means. Court records show he’s paid less than $5,000 toward his $182,386 restitution.
Before his second probation sentence was set to end this September, Maritz received another letter warning of yet another violation proceeding in the works. This time he sought out other options.
“I didn’t feel there was a need for continued court supervised probation when I was demonstrating having a payment, one per month, every month for the past eight years.”
Maritz turned to the American Civil Liberties Union, where an attorney directed him to a ruling, Commonwealth v. Marshall, reached just days earlier in the state Superior Court. The ruling — the result of an appeal on a 2022 probation violation order in Allegheny County — found the defendant did not violate his probation for having an outstanding restitution balance because the court hadn’t proved he was in a position to pay it off faster.
Arriving at this conclusion, the ruling refers to longstanding case law that prohibits “indigent defendants from being sentenced to prison solely because they do not have enough money.”
A preference for probation
Attorneys and advocates say the Marshall ruling simply reaffirms a longstanding legal principle that, for a variety of reasons, isn’t always followed – particularly in Allegheny County.
One such reason, according to Pittsburgh-based defense attorney Justin Romano, is a belief – widespread among courts – that releasing defendants from probation means releasing them from their debts.
“There’s a misconception that probation is the stick that you need to motivate defendants to pay restitution,” said Romano, a member of the Allegheny Lawyers Initiative for Justice. “In reality there’s a mechanism on the books.” Defendants can be held in contempt of court for failing to make good faith payments on what they owe without being on probation.
“Judges presiding over violation hearings need to understand you don’t need to keep someone on probation indefinitely to get them to pay,” Romano said.
Maritz, while glad to be off probation, says he still intends to clear his balance.
“I am responsible for what I did and I am responsible for putting it right,” he said.
Legal reformers in Pennsylvania have been pushing for years to end the practice of considering unpaid restitution and court fees as a probation violation. Andrew Christy, a Philadelphia-based attorney at the ACLU who was involved with the Marshall case, said Allegheny and Delaware Counties have – for reasons unclear – stood out for frequently issuing restitution-based probation violations.
Dolly Prabhu, a staff attorney at the Abolitionist Law Center in Pittsburgh, who recently co-authored a report on “Probation in Allegheny County,” said a team of volunteer court watchers under her supervision has regularly observed probation periods extended for unpaid restitution in the manner described by Maritz.
“We saw this all the time,” Prabhu said. “They make it sound like they’re doing the defendants a favor, because ‘we’re going to give you another five years to pay this off,’ almost like they’re giving them an extension of a homework assignment, when really they’re illegally extending their probation.”
Prabhu’s report notes that probation is “increasingly given as a default sentence rather than an alternative sentence.” It argues that instead of reducing jail sentences as a diversionary measure, probation places people on a “fast track to incarceration.”
While on probation, minor offenses can quickly land you in jail where they may otherwise be dismissed, she said.
Taking data recorded in May, the ALC report stated 40% of the county’s jail population were there on probation retainers – meaning they’d been sent there while awaiting a hearing on probation violation charges. It also noted the prevalence of poor people and people of color within the jail and probation systems.
“It’s very paradoxical because the conditions of probation itself make it very difficult to get employed and make money,” Prabhu said
Court appointments and meetings with probation officers can interfere with work schedules, Christy said, sometimes jeopardizing employment.
“Keeping people on probation makes it harder for them to work and pay back what they owe,” he said.
Maritz noted simply disclosing his probation drove away some employers when he first sought new work after his sentence.
Is change coming?
While his felony record means he’ll likely never return to the field of education, Maritz has found employment in customer service and – as of last month – is no longer under court supervision.
He counts himself among the lucky ones.
“I’m very fortunate in terms of the nature of my crime, and the size of my restitution. The criminal justice system was fair to me.”
Joseph Asturi, a spokesperson representing the county’s probation department and its broader court system, said the Superior Court ruling was non-precedential and would have no material consequences for sentences related to unpaid restitution in Allegheny County.
“Probation does not detain defendants for failure to pay. Instead, the probation office presents cases to judges, who consider the information and arguments provided by attorneys and defendants, including those concerning whether the defendant made a good faith effort to pay or whether or not the failure to pay was willful,” Asturi wrote in an email to PublicSource.
He added that restitution obligations remain in effect until they’re paid, and judges decide whether to keep defendants on probation — but they’re never “sentenced to jail for failure to pay.”
Christy said the ruling was non-precedential – meaning lower courts are not bound to it in future cases – because it does not reflect a change in precedent but instead “builds on decades of case law” going back to 1984.
The Marshall case “shouldn’t have been necessary,” he said. “But it does leave an open question of: Are courts going to be coming into compliance with this new and reiterated point from the Superior Court that you can’t punish people for being poor by keeping them on probation?”
A former educator with a doctorate, Maritz said his research abilities helped him build a case that persuaded the judge to release him. But, he pointed out, others facing similar situations may be less fortunate.
“I’ve seen people in the courts who say, ‘I’m literally going to be on probation my whole life paying this off,’” Prabhu said. “It’s unfortunate that even after this decision, some judges aren’t taking it seriously, or they simply aren’t aware, in the best case.”
Christy is optimistic about slow change in Allegheny County and he’s learned of cases in Delaware County in which the district attorney has dropped charges in response to the Marshall ruling.
“I do view what happened in Ed’s case as promising,” Christy said. “On the one hand it was troubling that the probation department [was] still trying to [extend his probation]. But on the other hand, the judge clearly was familiar with this decision and stuck with it.”
Correction: The report citing the proportion of Allegheny County’s jail population held on probation was published by the Abolition Law Center. An earlier version of the story misattributed the author.
Jamie Wiggan is deputy editor at PublicSourceand can be reached at jamie@publicsource.org.
This story was fact-checked by Tanya Babbar.
