Report: Unaffordable cash bail is ‘a statewide crisis’ in Pa. | Monday Morning Coffee

Local magisterial district justices ‘routinely’ set bail that people can’t afford, triggering a ‘cascade of harmful consequences’

January 3, 2022 7:10 am

(Image AdobeStock via The Philadelphia Gay News)

Good Monday Morning, Fellow Seekers.

We’re back after a holiday hiatus. And we’ll start this new working week by hoping that this third day of 2022 finds you and yours happy, healthy and rested for what will surely be a consequential year.

Criminal justice reformers in Pennsylvania and across the nation have spent the past few years training their sights on cash bail, a system that at least one Keystone State lawmaker has denounced as a ‘de facto debtor’s prison’ that can have ruinous and far-reaching consequences long after a person’s involvement with the criminal justice system has come to an end.

recent report by the American Civil Liberties Union of Pennsylvania took an in-depth look at the use of cash bail in the Keystone State, finding that local magisterial district justices “routinely” set bail that people can’t afford, triggering a “cascade of harmful consequences,” that includes increasing the possibility of someone’s future arrest.

Among its top findings:

  • “Cash bail was the most common type of bail set across Pennsylvania, and set nearly twice as often as release on recognizance (ROR), the least restrictive type of bail.” And of the people assigned cash bail, “more than half … did not post it and remained incarcerated.
  • “Some counties rarely assign release on recognizance,” and “bail practices varied widely even among the magisterial district justices who serve in the same county,” and
  • “[Magisterial district justices impose cash bail more frequently and in higher amounts for Black people].”

“Cash bail is a primary driver of pretrial incarceration. When assigned cash bail, an accused person must pay a sum of money to obtain their release,” the report’s authors concluded.

“Cash bail keeps poor people incarcerated, while those with means can purchase their freedom. Cash bail also perpetuates systemic racism as judges more often assign unaffordable cash bail to Black people facing charges than white people,” they wrote. “Black and Latinx people accused of crimes face far greater risk of pretrial incarceration.”

The ACLU-PA’s report includes data from 2016-17, the most recent year for which it was available before the state’s Clean Slate Law went on the books.

In 2019, the Capital-Star took an in-depth look at cash bail, which some states, including Illinois, have since eliminated.

Cash bail rates, by county (Source: ACLU-PA).

The ACLU’s report found that cash bail amounts varied wildly across the state. Armstrong County had the lowest average amount at $15,099, while Bucks County had the highest average, at $77,462. One magisterial district justice [MDJ] in the suburban Philadelphia County had the highest average amount of all, clocking in at more than $600,000, the report found.

Statewide, the average was $38,433, which is more than half the average household income in the state, researchers found. As a result of those punitively high amounts, “in the two-year period between 2016 and 2017, more than 97,000 cases occurred in which the defendant remained incarcerated until trial,” the report’s authors concluded.

And if you think this is just a “Philadelphia thing,” think again.

According to the report, cash bail was as likely to be assigned in rural counties as it was in the state’s urban centers. And “this trend is consistent with mounting research showing that the geography of mass incarceration is shifting: big cities no longer have the highest incarceration rates,” the report found.

While rates varied by county, and even among MDJs in the same county, what was consistent, however, was a gap in racial equity in the assignment of cash bail.

“Among Black defendants accused of a crime, MDJs set cash bail in 55.2% of cases. In comparison, among white defendants accused of a crime, MDJs imposed cash bail in 38.5% of cases. MDJs imposed cash bail on Black defendants more frequently, and they also imposed higher amounts of bail — on average, $12,866 more,” the report found.

That disparity was the most severe in rural Somerset County in southwestern Pennsylvania, where the rate of cash bail among Black defendants “was three times the rate for white people,” the report found. And when Black defendants were assigned cash bail, the amount they had to pay was more than double that of white defendants, researchers concluded.

State Rep. Summer Lee, D-Allegheny, speaks at a 2021 state Capitol news conference where she and other Pa. House Democrats rolled out a package of police reform proposals (Capital-Star photo by John L. Micek).

The report makes a number of recommendations for reform. They include:

  • Requring MDJs to “set ROR (release on recognizance) in far more cases and use the least restrictive conditions necessary to guarantee future appearance,” and that,
  • “MDJs must follow the guidance of the Constitution and the Rules of Criminal Procedure as the norm and use pretrial detention as the carefully limited exception.”
  • Requiring the “Administrative Office of Pennsylvania Courts to promote transparency by analyzing bail data on a regular basis.”
  • Requiring county president judges to “exercise supervisory authority over the magisterial district judges whom they oversee” by [ordering] procedural audits to assess whether MDJ practices conform with the law.” And it suggests that,
  • “Courts and jails must work together to install safeguards that guarantee no person is incarcerated only because they are unable to pay bail,” the report concludes.

In early 2021, state Rep. Summer Lee, D-Allegheny, announced she was seeking co-sponsors for legislation banning cash bail in Pennsylvania, the Capital-Star previously reported.

Lee, who is now seeking the Democratic nomination for the Pittsburgh-based 18th Congressional District, wrote in a “Dear Colleague” memo that the state’s current system “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,” Lee wrote of her yet-to-be introduced legislation. “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.”

Nationwide, the reform movement continues. Both New Jersey and Washington D.C. only use cash bail in certain situations, while, “New York and Alaska have moved towards banning cash bail but since rolled back their plans,” WUWM-FM in Wisconsin reported last April.

And the bottom line from the ACLU-PA?

“When a person is incarcerated before their trial, they lose more than just their liberty. Pretrial detention also triggers a cascade of harmful consequences. After just a few days in jail, a person can lose their job, access to medical care, custody of their children, and even their homes. These consequences reverberate for years. Individual lives, families and communities are devastated,” the report’s authors wrote.

Pennsylvania State Capitol Building. (Capital-Star photo by Cassie Miller.)

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John L. Micek

A three-decade veteran of the news business, John L. Micek is the Pennsylvania Capital-Star's former Editor-in-Chief.