Why the ACLU says Philly bail practices are unconstitutional

Under Pennsylvania law and the U.S. Constitution, a defendant cannot be held in prison pretrial without a full hearing to determine whether it's safe to release the person.

The reality in Philadelphia, though, is much different.

Conducted by video in a 24-hour courtroom in the basement of the Criminal Justice Center, the average preliminary arraignment hearing lasts less than 2½ minutes — during which defendants are typically warned not to speak. Bail commissioners almost never consider a defendant's ability to pay, and routinely set money bail for people they've already identified as indigent. The result is, often, de facto pretrial detention.

That's according to the Pennsylvania ACLU, which observed 650 bail hearings this year and summarized the findings in a searing Sept. 11 letter to the leadership of the Philadelphia courts, also known as the First Judicial District (FJD).

"We believe the FJD's bail practices are unconstitutional," Pennsylvania ACLU's Mary Catherine Roper and Nyssa Taylor said in the letter.

Roper, the organization's deputy legal director, said the group has met with FJD leadership and hopes to collaboratively resolve the issue, though a federal lawsuit could be a last resort.

An FJD spokesman said by email that the court welcomes the feedback, but that the ACLU's report didn't account for changes already underway, "which have assisted in reducing the jail population, resulted in fewer people being detained on cash bail, expanded diversion programs, and early bail hearings — all without jeopardizing the safety of the community."

Even as Philadelphia has invested in pretrial services to improve its court-appearance rate to 95 percent — part of a $6.1 million investment ignited by a MacArthur Foundation grant to reduce the jail population — ACLU observers reported that four out of the city's six bail magistrates never referred defendants to such services, instead relying solely on money bail as a condition of release.

According to the ACLU's analysis of 2018 dockets, 42.5 percent of defendants still get money bail. Of those, one in four faced a bail of $50,000 or higher. The ACLU observed cases in which commissioners assigned bail amounts as high as $450,000 (for a person facing a robbery charge) to defendants they knew could not pay, without ever stating the reasons for the high bail. Nearly three-quarters of those assigned cash bail were deemed indigent by the court.

Defendants being arraigned generally appear by video conference from police stations around the city, so they typically have no opportunity to speak with the public defender, except in open court. That's why they're typically advised not to talk at all, even to try to make a case for lower bail. As part of the MacArthur initiative, the Defender Association has been running a pilot program to allow defendants to meet with advocates before arraignment, but it's limited in scope.

People who are locked up pretrial are more likely to be convicted and to face longer sentences; they are also more likely to commit future offenses, according to one analysis of Philadelphia and Pittsburgh bail systems. Researchers have found even a few days in jail can be destabilizing, causing people to lose jobs, housing, custody and benefits.

These practices are not new, said Joshua Glenn, 30, an advocate with the Youth Art and Self-Empowerment Project.

"At the age of 16, I was locked up and held as an adult for 18 months for $2,000 bail. Then, my case was dismissed," Glenn said. "By then I had to do a lot to pick up the pieces."

A 2016 Inquirer analysis found that bail commissioners routinely set bail for teens facing adult charges far above guidelines, at an average of $248,000, without considering holding a full hearing or considering the youths' ability to pay. In  2016, the U.S. Court of Appeals' Third Circuit weighed in on the  Lehigh County case of Joseph Curry, who was jailed for months on $20,000 bail for trying to scam a Walmart out of $130.27, and eventually took a plea deal so he could go home; the court described such bail practices as a "threat to equal justice under the law."

Recently, though, there's been pressure to reduce reliance on money in bail. The MacArthur initiative resulted in the creation of early-bail-review hearings, release valves for lower-level offenders who can't bail themselves out within five days. The District Attorney's Office in February announced it would not seek bail on a list of 25 minor charges.

To critics, that's a start — but it's not a solution.

In response, two community bail funds are now raising money to bring home those who can't pay their own way.

Cara Tratner, an organizer of the Philadelphia Community Bail Fund, said the group had bailed out people who'd be locked up for days, weeks or even as long as two years, on bail amounts as low as $200. The "vast majority" of the more than 80 people they've bailed out have showed up for court.

"We have seen through the bail fund that people do not need additional monitoring pretrial in order to safely attend court dates. We've shown through our experiences that building community with people — simple things like transportation, two-way text messages, phone call reminders, mental health and addiction services — is what works," she said. "And a lot of people have attended court without seeking or needing any support."

This article has been updated to correct that Joseph Curry's case was in Lehigh County.