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.