The Pennsylvania Supreme Court is Serious About Investigating Bail Practices in Philly

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by Hayden Nelson-Major, Independence Foundation Fellow

After more than a year of gathering data and urging Philadelphia bail judges to follow the letter of the law, in early July, the Pennsylvania Supreme Court announced that it would launch an investigation into the use of cash bail in Philadelphia.

When an individual is assigned bail in Pennsylvania, the bail judge must follow, by law, the Pennsylvania Rules of Criminal Procedure. According to these rules, an individual cannot be locked up before their trial simply because they are too poor to afford cash bail. These rules instruct bail judges to assess whether a person is able to pay bail. If the answer to that question is no, then the rules say that the person charged must be released until their day in court.

But that’s not what is happening in Philadelphia.

In March, the ACLU of Pennsylvania joined the law firm of Arnold & Porter to file a lawsuit demanding that Philadelphia bail judges follow the rules and stop jailing people pretrial simply because they cannot afford bail.

The lawsuit followed months of court-watching and witnessing more than 2,000 bail arraignment proceedings. After it became clear that bail judges were not following the rules, the ACLU of Pennsylvania sent a lengthy letterto the First Judicial District detailing the ongoing issues.

In announcing the lawsuit, ACLU of Pennsylvania and Arnold & Porter were joined by advocates from Philadelphia Community Bail Fund and the Youth Art & Self-empowerment Project, who shared personal stories from the plaintiffs on whose behalf the lawsuit was filed.

In a statement responding to the court’s decision, Nyssa Taylor, criminal justice policy counsel for the ACLU of Pennsylvania, described what court-watchers saw from observing more than 2,000 bail arraignment proceedings.

“Bail hearings in Philadelphia typically last less than three minutes . . . and the person whose liberty is on the line is not even in the room, as they watch the proceedings by video.”

According to the complaint we filed in March, the Pennsylvania Supreme Court has already “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.”

Nobody should be locked up simply because they are too poor to afford to pay bail.

The ACLU’s Campaign for Smart Justice aims to cut incarceration by half and challenge racism in the criminal legal system. Ensuring that Philadelphia follows the rules when it comes to assigning bail is one step towards this goal. But it is far from the last step.

In Pennsylvania, the use of cash bail and pretrial detention is not unique to Philadelphia. We hope that this lawsuit will send a message to bail judges across the commonwealth that they must follow the rules, and we hope that lawmakers will embrace policies that don’t criminalize poverty.

The ACLU of Pennsylvania will continue to work to achieve the goals of the Campaign for Smart Justice by pushing for an end to pretrial detention, sentencing and prosecutorial reform, and significant changes to parole and probation laws in Pennsylvania.

Learn more about the Campaign for Smart Justice.

Probation in Pennsylvania Keeps People Trapped in the Cycle of Incarceration

by Elizabeth Randol

Imagine a world in which you can be detained by police and thrown in jail for taking a phone call from a family member. Or for walking down the same street in your neighborhood that you’ve been taking for years. Or for getting laid off from your job. 

When an individual is sentenced to probation in Pennsylvania, the government imposes dozens of onerous conditions upon them. These conditions can include a prohibition on traveling outside of the county, forbidding conversation with certain people (basically anyone a probation officer deems disreputable), random and invasive drug testing, home inspections, and a requirement that the person on probation be in their home during certain hours. Those on probation are subject to near-constant government surveillance and supervision. 

“Technical violations,” or non-compliance with any of the numerous conditions of probation, behavior which would never be considered a crime can send that person back to jail for weeks, months, and sometimes years. A study recently released by the Council of State Governments found that 25% of 2017 prison admissions were for technical violations of supervision and 54% of all prison admissions were for supervision violations — clear evidence that probation and parole are key drivers of mass incarceration in PA. 

Pennsylvania is also one of just a handful of states that fails to impose a cap on the length of the probation sentences. Pennsylvania judges have the discretion to dole out probation sentences that can last years, even decades. Living for years with the fear that the smallest misstep will send you back to jail as the government is breathing down your neck every moment is no way to live a life.

Last month, Senator Lisa Baker, chair of the Senate Judiciary Committee, held two days of public hearings regarding probation and parole terms in the commonwealth – a welcome and laudable effort intended to help the committee get their arms around how these complex systems work in Pennsylvania and the minefields people must navigate as they return to their families and communities.

One person who testified and shared her story was Latonya “T” Meyers. T spent nine months in jail even though she was eventually acquitted — she did not have enough money to pay bail. Soon after returning home, T had enrolled in community college and became an advocate for other people in reentry, joining the Defender Association of Philadelphia as a full-time staffer. 

But after a flawless record on parole that led her parole officer to not even require regular check-ins, T’s supervision shifted to probation. That’s where the trouble started. Because of risk assessment algorithm, T was labeled “high risk” and ordered to check in with her probation officer weekly. 

T had to miss work once a week (thankfully her bosses understood) to check in with her probation officer, who told her that because of her high-risk status, she would never be able to ease the terms of her probation until 2027. 

When the city of Philadelphia presented T with an award for being an up and coming leader for those in reentry, T’s probation officer was not in attendance. Instead, she was writing an arrest warrant for T, who was late to their scheduled meeting because she was receiving her award. Her probation officer never acknowledged the award, only asking T the same mundane questions she was asked every week: Did you move? Did you change your phone number? And so on. 

It doesn’t have to be this way.

The Pennsylvania Senate is currently considering a bill, Senate Bill 14, that would reform probation in the commonwealth by capping probation terms and mandating early termination of probation after a certain period with no violations, among other badly needed reforms. 

Probation reform and smart criminal justice reform are not partisan issues or ideological issues. Individuals and organizations across the political spectrum want to see bold, meaningful change. We at the ACLU of Pennsylvania urge the Pennsylvania Senate to move swiftly when they return to session to pass S.B.14 and the Pennsylvania House of Representatives to take it up as soon as possible. 

Tens of thousands of Pennsylvanians languishing on needlessly long and punishing probation terms are in desperate need of this reform. Legislators should act accordingly.

Take action to support S.B.14 here.

Elizabeth Randol is the Legislative Director at the ACLU of Pennsylvania

Elected Officials Cannot Block People on Social Media

By Rich Ting and Andy Hoover

From Franklin Roosevelt’s “fireside chats” on radio to John F. Kennedy’s mastery at the televised debate, politicians have made use of the latest communications technology to reach people with their message. Today, elected officials as different as Donald Trump and Alexandria Ocasio-Cortez have mastered social media as a platform.

But communication between an elected official and the people is a two-way street. Thanks to the free speech clause of the First Amendment, politicians cannot eliminate viewpoints they don’t want to hear.

A federal court in New York this week affirmed the right of the people to share their views with elected officials. In a case known as Knight First Amendment Institute at Columbia University v. Trump, the United States Court of Appeals for the Second Circuit upheld a lower court’s decision that President Trump violated the free speech clause of the First Amendment by blocking certain users from his Twitter account.

In its ruling, the court made a distinction that the ACLU of Pennsylvania has been making over the last two years as this issue has popped up – the relevance of the First Amendment hinges on whether or not the social media account is the person’s official government page or a personal or campaign page. Blocking users from a social media account violates the First Amendment if the account is an official, government-run account with interactive features accessible to the public.  The court noted that “not every social media account operated by a public official is a government account,” and whether a social media account is a government account is a fact-specific inquiry informed by how the official describes and uses the account, to whom features of the account are made available, and how others regard and treat the account.  The decision in Knight, for example, does not apply to personal or campaign social media accounts.

With respect to President Trump’s Twitter account, the court noted several factors indicating the account is an official, government-run account.  For example, the account is registered to “Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.,’” the President uses the account on an almost daily basis to communicate and interact with the public about his administration, the President uses the account to engage with foreign leaders and announce foreign policy decisions, and the account was intentionally opened up for public discussion.  The court found that President Trump, therefore, “is not entitled to censor selected users because they express views with which he disagrees.”

As a private real estate mogul, Donald Trump could block whomever he pleased from his Twitter account. But when he made the decision to run for public office, he lost that luxury. He and other elected officials cannot eliminate people from public discussion based on their viewpoints. Our constitution forbids it, and our democracy demands that those viewpoints can be expressed without obstruction from public officials.

Rich Ting is a volunteer attorney with the ACLU of Pennsylvania. Andy Hoover is ACLU-PA’s director of communications.