Ending Cash Bail in Pennsylvania

Background

Among the fundamental rights that protect all Americans is the right to reasonable bail and due process of law guaranteed to the accused. Federal guidelines for the imposition or denial of bail include the defendant’s history, evidence, and whether they are a flight risk, danger to the public, or both.

However, the bail process in Pennsylvania too often centers on an individual’s ability to pay rather than the individual’s risk to public safety. Because it includes no review of one’s ability to pay monetary bail, it frequently assigns cash bail to those who do not have the means to pay for release. This leads to lengthy periods of imprisonment, sometimes years, putting employment, housing, child custody and other means of a stable and productive life at risk.

Even six months of imprisonment can cost taxpayers $20,000. Often, an accused individual may be forced to accept a plea deal to leave the jail environment and preserve their home life and freedom. This reality was underscored by the Third US Circuit Court of Appeals who classified Pennsylvania’s system of bail as “a flaw in our system of justice” and “a threat to equal justice under the law” in response to the case of Joseph Curry (Curry v. Yachera) who spent 88 days in a Lehigh County jail, costing taxpayers almost $10,000. Because he was unable to post bail, which was set at $20,000 for allegedly shoplifting $130 in merchandise, he pled no contest without admission of guilt. His time detained resulted in him missing the birth of his first child and losing his job. He almost lost his home and vehicle.

According to the Vera Institute’s 2019 national study, “The Lasting and Harmful Effects of Pretrial Detention,” over 64% of those imprisoned nationally since 2015 are pre-trial detainees, most of which are unable to post bail. More than two thirds of the over 740,000 incarcerated in local jails have not been convicted of a crime. Pennsylvania holds the ninth highest rate of pretrial incarceration in the United States, imprisoning 270 people for every 100,000 residents.

California, the District of Columbia, and New Jersey have ended the use of cash bail and Philadelphia has limited its use in recent years. The Philadelphia experiment has yielded interesting results. In 2018, 1,750 defendants were released without bail and the recidivism rates went unchanged. In that same year, court appearance rates remained at ninety-seven-percent in the Court of Common Pleas and eighty-seven-percent in the Municipal Court, the exact rate they have been in Philadelphia for over a decade.

The way in which the pretrial process is administered in Pennsylvania is out of compliance with the Pennsylvania Rules of Criminal Procedure created to encourage pretrial release without cash bail, limit pretrial detention and protect the presumption of innocence. Cash bail is an antiquated sect of our justice system that creates a de facto debtors’ prison by disproportionately jailing the indigent. The costs averted by ending the mass incarceration of pretrial detainees will more than compensate for bail maintenance fees collected by counties throughout the Commonwealth.

Legislative Solution

Eliminate the use of cash bail or other financial securities.

  • Studies have shown that the use of cash bail does not increase the likelihood of appearance in court.
  • The use of cash bail and other financial securities is a form or wealth based discrimination; the wealthy go free while the poor remain in custody.
  • Federal Courts shave recently ruled that the use of arbitrary cash bail that results in the pretrial detention of the accused violates the Due Process and Equal Protection clauses of the Constitution – the continued use of arbitrary cash bail in counties could be the subject of litigation.

Establish a presumption of release that can only be overcome by clear and convincing evidence that the accused poses a serious danger to the community or a serious risk of flight.

  • The clear majority of those accused of crimes are not a threat to the community and are not a threat to flee the jurisdiction and can be released on their own recognizance.
  • The presumption of innocence requires that restriction on pre-trial liberty be the exception and not the rule.

Require that any conditions of release that are imposed be the least restrictive conditions to ensure appearance in court or to protect public safety.

  • Restrictions on the accused’s liberty must be narrowly tailored to meet the objectives of ensuring public safety and appearance in court and cannot be punitive.
  • Imposing the least restrictive conditions ensures that the accused is not detained pretrial unnecessarily.

If bail is denied or the accused is unable to meet the conditions of release, establish a right to a pretrial detention hearing within 48 hours where the accused is represented by counsel and the burden is on the prosecution to show by clear and convincing evidence that the accused is a danger to the community or a flight risk and that no other conditions of release will ensure the public safety or the accused’s appearance in court.

  • There must be a procedural right to contest the denial of release or the inability to meet the conditions of release.
  • Pretrial detention hearings ensure that the accused is not being held because they are unable to meet financial conditions of release, something that would amount to a denial of due process and equal protection.
  • Since even brief periods of pretrial detention can have serious consequences for the accused, the accused must be given the opportunity to contest the conditions imposed within 48 hours.
  • Federal Courts have recently ruled that anyone detained because they are unable to meet a financial condition of release and who have not been deemed a danger to the community or a flight risk is entitled to have a review of those financial conditions within 48 hours.

Require the use of citations when the accused is charged with a nonviolent offense and their identity and place of residence can be verified by law enforcement.

  • The use of citations for nonviolent offenses increases the efficiency and effectiveness of the criminal justice system.
  • Law enforcement officers do not need to maintain custody over the accused and can resume other law enforcement activities.
  • Prosecutors, defense attorneys and judges do not need to spend time on cases where the accused is not charged with a serious offense and where the accused’s identity and place of residence have been verified.

Guarantee the presence of counsel at the accused’s initial appearance before a judge or magistrate who has the power to impose conditions of release.

  • Studies have shown that when defense counsel can interview and advocate for the accused at the initial appearance the accused is more likely to be released, more likely to appear in court and representation reduces racial disparities.
  • The resulting reduction in the local jail population saves counties a significant amount of money thereby offsetting the increased cost to provide counsel at the initial appearance.
  • Pretrial detention, even for a brief period, can lead to the loss of employment, housing, custody of children, educational opportunities and medical treatment and has been shown to actually increase recidivism.

Require the collection and reporting of data on pretrial release decision-making and case disposition.

  • The collection of data regarding pretrial release will help inform judicial decision making and legislative efforts to create a fairer and more efficient system of pretrial release.
  • Data collection must include information on race and ethnicity to identify and correct bias in the decision-making process.

Stakeholders

  • Defender’s Association
  • DA Association
  • Criminal Justice Reform Groups
  • Americans Civil Liberties Union
  • FOP
  • State Police
  • Attorney General
  • PA Courts
  • Office of Victims Advocate