Pennsylvania is Jailing People With Mental Illness Who Belong in Treatment

By Witold Walczak, Legal Director, ACLU of Pennsylvania

For the third time in less than four years, the ACLU of Pennsylvania and co-counsel from Arnold & Porter Kaye Scholer asked a federal judge last week to order Pennsylvania’s Department of Human Services to reduce the time that people with severe psychiatric disabilities spend waiting in jail for treatment beds. These people’s mental disabilities are so significant that under the Constitution they can be neither prosecuted nor punished, which means they cannot be kept in a prison or jail. 

How disabled are our clients?

Most are floridly psychotic. This means that they see people who are not in the room, hear people who are not talking, and feel things — like armies of spiders crawling on them — that are not there. Jail conditions only exacerbate these symptoms and make them deteriorate further. They spread feces on themselves and eat it. Some become violent. 

These people are also very alone. Many of our clients’ families have abandoned them — not because they are bad people necessarily, but because the societal and medical supports to help both their loved one and themselves are not there. And the clients’ illness prevents them from advocating for themselves. These people are helpless, often without anyone even trying to help them. 

Our clients also share in common criminal charges for a range of transgressions, from stealing peppermint candies from a convenience store — I kid you not; check out our lead plaintiff’s story— to murder. But because they are too sick to understand the charges or assist in defending against them, the Constitution prohibits them from being prosecuted or imprisoned. 

If the criminal court determines that mental health treatment will likely make them competent within a reasonable time period, however, the court can order them into “competency restoration treatment.” This treatment need not involve expensive hospital beds; for some people, the treatment can be provided in the community. 

In October 2015, we sued DHS over what appeared to be the longest wait times for incompetent criminal defendants in the country. Two federal courts had ruled that the Constitution requires states to transfer incompetent patients ordered to treatment within seven days. In Pennsylvania, one of the two DHS hospitals accepting such patients was so full that people were waiting in county jails for over a year, and in some cases more than two years.

These lengthy waits in jail are not only plainly unconstitutional: They are inhumane. People with severe psychiatric disabilities, who legally cannot be punished, are held in cages — that’s what a prison cell is, folks — usually with little or no mental health services. Studies reveal that individuals with major mental illnesses, as a group, face a substantial likelihood of getting seriously injured in prison. Confining severely mentally ill patients in close quarters with, and without adequate protection from, large numbers of antisocial persons with excess time and few productive activities results in bullying and predation.

Moreover, their mental illness causes them to act in ways prisons don’t condone, often leading to their placement in solitary confinement. Not only does the patient remain untreated, but the isolation causes the patient to decompensate much faster, exacerbating the mental health condition. These experiences — the trauma of physical and sexual victimization and conditions of solitary confinement, either alone or in combination — often aggravate inmates’ psychiatric symptoms and even create new mental disorders. 

Our first injunction in the case resulted in a January 2016 settlement requiring DHS to study the problem to identify a solution as well as to add treatment beds. We suggested that many of the patients could be treated in community settings, which would be better for them and much cheaper for the agency. When those changes did not reduce wait times, we filed for a second injunction in summer 2017. The second settlement eventually reduced wait times to about 4-5 months, but that was still far too long, legally and medically.

Our third injunction request last week is straightforward: We ask the court to order DHS to meet the seven-day transfer period for all patients by Sept. 1. The agency will need to figure out how to do so. Our clients cannot continue to pay the heavy price of DHS’s failure to fix this problem.

If a society is judged by how it treats its most vulnerable citizens, Pennsylvania is not doing very well. 

Stories from Philadelphia’s broken bail system

On March 12, 2019, the ACLU of Pennsylvania and the law firm of Arnold & Porter filed a lawsuit against bail judges in Philadelphia who regularly violate their own rules when setting bail.

When these bail judges don’t follow the rules, bad things happen. People are being locked up for days, weeks, and months in Philadelphia’s county jail before they ever have their day in court simply because they cannot afford to pay bail.

The lawsuit was filed on behalf of Philadelphia Community Bail Fund and the Youth Art & Self-empowerment Project.

Also included as co-plaintiffs are a number of individuals incarcerated in Philadelphia’s county jail because they cannot afford their bail (as of the filing of the lawsuit).

These are their stories.

M.W. is 18 years old and has worked for a local remodeling company since he was 16, which helps cover the bills at home where he lives with his mother and younger siblings.

At a bail hearing following his March 6 arrest, the teleconference audio was not working, and M.W. could not hear most of what his bail judge said. The bail judge never asked whether M.W. could afford cash bail of any amount, finally setting bail at $7,500.

Not being able to afford the $760 required to secure his release, M.W. remains incarcerated, worried that he has lost his job and concerned about the amount of stress his absence is having on his mother and his family.


P.R. was arrested on March 4. At his hearing, the bail judge never asked whether P.R. had the means to afford cash bail before setting bail at $10,000.

P.R. works a seasonal job for an asphalt and concrete company but has not worked since December due to the winter weather. Because of this pause in his income, P.R. does not have the financial means to pay $1,010 required to secure his release.

P.R. is worried that he will still be in jail when his seasonal work resumes. If he is still incarcerated at that time, he will likely lose his job. He is also worried about whether or not he will lose his apartment while in jail without the ability to pay rent.


J.H. has been working for a moving company for the past two years. A devoted family man, J.H. is worried that his fiancé will not be able to pay rent without his income. J.H. also takes his niece and nephew to school on days when his sister has to work.

Without his help while he remains incarcerated, J.H.’s family is struggling to get by.

At his bail hearing, the judge did not ask J.H. whether he could afford cash bail before setting bail at $150,000.

J.H. sits in jail at the time of this writing, unable to pay to secure his release.


“G.T.” was arrested in Philadelphia on March 4, 2019. Fifty-two years old and suffering from chronic pain from a 2014 injury, G.T. is a recipient of food stamps and was living in a car with all of his possessions in the weeks before he was arrested, as he sought an affordable apartment.

At his bail hearing, despite stating that he was currently unemployed and homeless, the judge set G.T.’s bail at $250,000, meaning G.T. would have to come up with $25,010 to secure his release until his trial.

G.T. is worried that his car, full of his possessions and parked on a public street, will not be there when he finally is released. He’s at risk of missing scheduled doctor’s appointments to treat his chronic pain. He’s sure that the leads on apartments will have evaporated. Worst of all, G.T.’s mother is dying of cancer. Everyday that he spends languishing in jail before he’s ever had his day in court is less time that he might spend with his mother.


“K.B.” is a 27-year-old mother of two who was recently arrested in Philadelphia. Despite making clear that she is not currently working and has no other source of income, the judge set K.B.’s bail at $10,000.

The judge never asked K.B. whether she could afford the $1,010 necessary to secure her release. K.B. remains separated from her children, who are five and nine.

K.B. has no idea how long she will be separated from her children before she has her day in court.


Z.L. was arrested on February 26. Just 16 years old, Z.L. was charged as an adult, and his bail set at $300,000. At his bail hearing, it was clear that Z.L. could not hear anything that was said by the bail judge or anyone else, as he tried to put his ear closer to the videoconferencing screen, to no avail.

Z.L. and his family do not have the $30,010 needed to secure his release, and as a result, Z.L. remains incarcerated in adult jail.

A football and basketball player at his high school, Z.L. was starting to look at colleges and was planning to apply to Penn State at the time of his arrest.


According to the Pennsylvania Rules of Criminal Procedure, using bail as a tool to incarcerate an individual before their day in court is prohibited. Further, judges are obligated to ask if an individual can afford to bail themselves out and to consider the ability to pay when setting bail. In other words: it’s against the rules to lock up someone pretrial simply because they are poor.

But in Philadelphia, as the stories above illustrate, that’s exactly what is happening.

The lawsuit filed on March 12 asks the state Supreme Court to force bail judges to follow their own rules.

The ACLU of Pennsylvania will continue to fight pretrial detention and the abuse of cash bail in Philadelphia and across Pennsylvania as part of our Campaign for Smart Justice. Learn more at aclupa.org/PhillyBail.

Why won’t Philadelphia follow the rules when setting bail?

by Ian Pajer-Rogers

“G.T.” was arrested in Philadelphia on March 4, 2019. Fifty two years old and suffering from chronic pain from a 2014 injury, G.T. is a recipient of food stamps and was living in a car with all of his possessions in the weeks before he was arrested, as he sought an affordable apartment.

At his bail hearing, despite stating that he was currently unemployed and homeless, the judge set G.T.’s bail at $250,000, meaning G.T. would have to come up with $25,010 to secure his release until his trial.

G.T. is worried that his car, full of his possessions and parked on a public street, will not be there when he finally is released. He’s at risk of missing scheduled doctor’s appointments to treat his chronic pain. He’s sure that the leads on apartments will have evaporated. Worst of all, G.T.’s mother is dying of cancer. Everyday that he spends languishing in jail before he’s ever had his day in court is less time that he might spend with his mother.

“K.B.” is a 27-year-old mother of two who was recently arrested in Philadelphia. Despite making clear that she is not currently working and has no other source of income, the judge set K.B.’s bail at $10,000.

The judge never asked K.B. whether she could afford the $1,010 necessary to secure her release. K.B. remains separated from her children, who are five and nine.

K.B. has no idea how long she will be separated from her children before she has her day in court.

At the time of this writing, G.T. and K.B., like so many others, are incarcerated in Philadelphia’s county jail. Even though they have not been convicted of a crime, they are still being held pretrial because they can’t afford to pay to get out. But working with groups like the Philadelphia Community Bail Fund and the Youth Art & Self-Empowerment Project, they are fighting back.

G.T. and K.B. are, along with eight other individuals being held pretrial in Philadelphia County Jail, co-plaintiffs in a lawsuit filed March 12 by the ACLU of Pennsylvania and the law firm of Arnold & Porter. The lawsuit comes after observing more than 2,000 bail arraignment proceedings and after sending a letter of concern to the First Judicial District last September.

The lawsuit makes a very simple demand: that bail judges in Philadelphia follow the Pennsylvania Rules of Criminal Procedure.

But before describing how bail judges in Philadelphia are in violation of the rules, let’s remember what bail is. And what it isn’t.

As cited in the complaint, the Pennsylvania Supreme Court has “reaffirm[ed] that the purpose of bail is to ensure” that a person charged with a crime shows up for court and that “Pennsylvania law favors the release, rather than the detention of an individual pending a determination of guilt or innocence.”

In other words, bail should never be the sole factor that keeps a person locked up pretrial and judges have a legal obligation to consider whether an individual can afford the bail they set or whether they are effectively locking up a person for being poor.

The 2,000+ bail hearings that were observed in Philadelphia’s First Judicial District over the past year were rife with rule violations.

In many cases, judges would assign cash bail in one breath and a pro bono public defender in the next. Eighty-six percent of the defendants who were observed being assigned cash bail had already been determined to be too poor to afford bail or a lawyer.

The lawsuit calls on the Pennsylvania Supreme Court to intervene and ensure that judges in Philadelphia are acting within the parameters of the rules and within the bounds of decency.

While this lawsuit is focused on bail judges in Philadelphia, the overuse of cash bail and pretrial detention is rife across Pennsylvania. We hope that judges and district attorneys statewide will take notice of this lawsuit and take time to review their own practices to ensure fairness, liberty, and justice for all Pennsylvanians.

If not, we will see them in court.