Efforts to overhaul the state’s probation system are on hold until next year after law enforcement, domestic violence survivor advocates and others objected to key details of a bill under consideration by lawmakers last month.
Delaware's Department of Corrections currently supervises roughly 10,000 people through its probation and parole programs, compared to roughly 15,000 in 2017. The DOC contends that the program is in good working order, enabling the state to run group violence intervention programs and offering an incentive for probationers to pay their court fines. Critics, including Delaware's civil liberties organizations, argue that the probation system is rife with pitfalls that make it exceedingly difficult for probationers to achieve stability.
State Sen. Marie Pinkney’s bill seeks to limit probation terms to one year and prohibit the Department of Correction from keeping probationers under supervision for not fully paying their court fines, restitution and supervision fees.
The bill would also prohibit incarcerating probationers for so-called “technical violations,” such as missing appointments with a probation officer, which bill backers say should not interrupt progress towards rehabilitation. Technical violations are responsible for the vast majority of re-incarcerations in Delaware's probation system.
Kevin O'Connell, Delaware's Chief Public Defender, testified in support of the bill before the Senate's Corrections and Public Safety Committee last month, pointing to his experience representing thousands of defendants facing re-incarceration for probation violations.
"The highest percentage of people I meet say they were re-arrested because they stopped going to their probation and parole appointments," he said. "When I ask why they did that, they say, "I would have failed a urine test, or I didn't completed domestic violence counseling, or I didn't complete my mental health treatment. And I think the thing we all want to see is people completing their probation. So anything you can do to create a culture where the people I represent don't feel like they're going to get locked up and continue going to probation and parole — because the program is there to help them reintegrate into society — I applaud."
Former Dover City Council candidate Donyale Hall — a domestic violence survivor — also argues that the arrest of the man who abused her and her daughter for a technical violation gave her a greater sense of security.
“I have to tell you, albeit almost tearfully, that had it not been for a technical violation, he would have been out on the streets," she said. "And because he had to await an adjudication process before he could be back on the streets, it saved me from having to look over my shoulder.”
Delaware Department of Correction Deputy Commissioner Terra Taylor — whose agency oversees the state's probation and parole program — offered other examples of technical violations that can currently prompt the DOC to re-incarcerated a probationer.
"It could be your offender who is under supervision for their fourth DUI," she said. "They would have a no alcohol provision, but if they continue to use alcohol or drugs, the courts would not be able to impose a term of incarceration for those technical violations."
Witnesses before the committee also debated whether violating a protection order or, in the case of sex offenders, restrictions on contact with children constitutes a technical violation or a new offense; the bill would not prevent the DOC from re-incarcerating probationers for new offenses.
Given the disagreements about what limitations the bill would place on law enforcement, Deputy State Court Commissioner Evelyn Nestlerode warned it could carry unintended consequences.
"One thing we would really hate to see is if this leads to an increase in incarceration sentences," she said. "If probation is seen as lacking proper supervision or the time needed for services, judges might begin choosing to sentence people to incarceration rather than probation."
Pinkney assured skeptics that the bill is not intended to fully strip the probation program of teeth.
"I do not want to leave anyone with the impression that we want to take away [the DOC's] ability to re-incarcerate when necessary," she said. "But I want to put heavy emphasis on 'when necessary.' That is the intention behind the bill."
Pinkney says she hopes to work with concerned stakeholders to refine the bill before lawmakers return in January.
