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Prosecutors and defense attorneys at a Pennsylvania Supreme Court argument Tuesday agreed that offensive social media posts on their own should not be a basis for probation revocation, but differed on whether those posts had to show illegal conduct.
The public defender for a man whose probation was revoked over posts depicting drugs and guns said that only conduct that actually breaks the law should send him back to jail.
The Pennsylvania Supreme Court, at oral arguments Tuesday, appeared to be surprised by a point of agreement between defense counsel and the attorney handling the appeal for Larry Krasner's Philadelphia District Attorney's Office: judges should not have broad discretion to find probation violations, but instead should generally only revoke probation if the conduct violates one of the enumerated terms.
But Benjamin Halle, in a slight departure from defense lawyer Leonard Sosnov, argued that if the conduct show the defendant may "foreseeably" break the law, that conduct should also merit having bail revoked.
Sosnov, of the Defender Association of Philadelphia, argued on behalf of the probationer in Commonwealth v. Foster. He argued for a strict application of behavior that could violate probation.
Halle agreed to a point, telling the justices that "simple bad behavior is not enough" to send a probationer back to jail.
The argument involved Darnell Foster, whom the court hit with a probation violation after he posted eight photos to Instagram and Facebook, which depicted, among other things, guns, wads of cash, marijuana and the words “fuck you” spelled out using Percocet pills. In January 2018, a Superior Court panel upheld Foster’s 11.5- to 23-month jail sentence, plus seven years’ probation, that were imposed for the alleged parole violation.
Several justices questioned whether Foster's case may now be moot, as he has since racked up a new probation violation.
But Sosnov and Halle asked them to consider the issues presented by the case, given the increasing prevalence of social media.
According to Sosnov, there is a culture at trial courts that probation violation hearings are a "discretionary exercise."
"That is not the law," Sosnov said. "Courts often don't pay attention to the specific violation charge."
Justice Max Baer said the issue presented a "relatively easy case," given that the statute calls for courts to find that specific terms are violated, and Justice David Wecht agreed.
"The General Assembly said 'when you violated the terms.' They didn't say 'when the judge is ticked off.' Or 'when the defendant shows a bad attitude,'" Wecht said from the bench.
Halle said that offensive or contemptuous conduct occurring in the courtroom could be a basis for a parole violation, but the considerations are different outside the courtroom. Defendants, Halle said, have a "protected liberty interest in serving a probation sentence," and simple misconduct outside the courtroom does not necessarily mean a defendant is a bad candidate for probation.
Not all of the justices agreed.
After Halle suggested that, unless specifically outlined as a probation term, courts should only find violations for illegal conduct or conduct showing the defendant will foreseeably commit a crime, Justice Christine Donohue suggested that might not be the case.
"That's your wish list," she said.
Justice Debra Todd also questioned Sosnov several times whether conduct indicative of criminal behavior should be enough to merit a probation violation.
"It seems a little ridiculous when the defendant knows he's on probation, and know he's not supposed to be doing thing," she said. "There have to be some terms that are implicit."
Sosnov countered that courts have the ability to modify the terms of the probation, and can subsequently add limits to a defendant's social media use. But, failing to adequately give notice of what conduct might constitute a violation is a clear due process issue, he argued.
"It's important not to have vague standards," Sosnov said.