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.

Meet Caleb Christ, the 2018-19 Frankel Adair Scholar

The Frankel-Adair scholarship provides $1,500 in support of post-secondary education to an LGBQ&T student residing in the greater Philadelphia area. The scholarship honors the late Larry Frankel, former executive and legislative director of the ACLU-PA, and the benefactor, Thomas T. Adair. For more information about the scholarship, visit this link.

What were the most important events or influences that brought you to where you are today?

My lived experience as both a queer person and a transgender man motivated my pursuing a second undergraduate degree in the field of nursing. Interning at the Allentown Women’s Center and having the opportunity to help develop and implement their transgender health program sparked my passion for healthcare. I have been an advocate for people accessing transition-related healthcare, navigating insurance hurdles, and breaking down barriers to care. I would not be where I am today if I had not been able to access affirming, transition-related healthcare that allows me to live as my authentic self.

What do you see as the critical issues facing the LGBQ&T community at this time?

Access to expert healthcare for LGB and especially transgender communities is critical, along with health insurance that meets the unique needs of these communities. We also must address the ways that racism, class, and incarceration create barriers to healthcare, housing, and employment.

Do you envision your own career having an impact on concerns of the LGBQ&T community?

Healthcare as a whole has been slow to implement the level of training necessary to provide truly affirming care for transgender patients. Though LGBTQ competency is beginning to be included in health and medical education, there are many gaps. I hope to advocate for LGBTQ patients through the care I provide, through research and policy, and through clinical excellence.

What other social issues motivate you?

Sexual health and reproductive rights, rethinking the carceral system, homelessness, substance use, mental health and wellness — all these issues have an impact on access to healthcare and are crucial to address in tandem with being a healthcare provider.

The Philadelphia Police Department has a Racism Problem

By Reggie Shuford, Executive Director, ACLU of Pennsylvania

The job of a police officer is to serve and protect the community, no matter the racial, ethnic, religious, or socio-economic status of that community. Real justice is blind, and police officers are the front-line arbiters of justice in America.

But as a new, comprehensive report and database from the Plain View Project makes clear, many of the police officers in Philadelphia and across the country operate under a vision of justice that is anything but unbiased.

The analysis, which was first reported by Buzzfeed News, provides a searchable, public database of deeply disturbing social media posts from police officers in Philadelphia and seven other police departments, including York, Pennsylvania. While the names of people who interacted with the posts have been redacted, the names of the police officers who authored the posts have not.

The bottom line? The Philadelphia Police Department has a racism problem. Fortunately, the Plain View Project database names names, revealing exactly which officers are not fit to fulfill their duties to serve and protect.

The deep-seeded racism plaguing the department won’t be unraveled overnight. While the police officers whose hate-filled posts have been exposed should be dismissed immediately, the racism in the Philadelphia Police Department can’t and won’t be rooted out until the department faces the issue head-on. After all, this culture most assuredly runs deeper than the police officers who made publicly viewable social media posts.

People of color already have legitimate reasons for lacking trust in law enforcement in Philadelphia; our ongoing litigation over stop-and-frisk practices has proved that time and again. The behavior exposed by this report provides even more evidence for why that distrust is warranted. Hundreds of police officers in Philadelphia openly express hostility and antipathy toward the people they “serve.”

And the report only exposes those officers who did not hide their views behind a privacy wall. How many more officers say the same thing under the cloak of stronger privacy settings?

Over the past decade, with the emergence of smartphone technology, the epidemic of police violence driven by apparent racial animus has been well-documented. While many thought that the use of police body cameras would offer a measure of accountability that might prevent police killings, those hopes have been dashed as police officer after police officer wins acquittal in cases where their killing of unarmed civilians was caught on video.

The disturbing social media posts uncovered by the Plain View Project reinforce the sad reality that police can get away with anything, from brazen racism to murder.

Police culture in Philadelphia and across the nation must change. But it can’t change if those in power —mayors, police commissioners, city council members— don’t address the problem boldly and urgently. Until then, it’s difficult to see how the public – particularly communities of color – can trust police to do their jobs, leaving “serve and protect” as nothing but a bitter punchline.

Police Are Ill-Equipped to Help People With Mental Health Disorders

Osaze Osagie (photo courtesy of the Osagie family)


By Reggie Shuford, Executive Director, ACLU of Pennsylvania

Last month, District Attorney Bernie Cantorna of Centre County, Pennsylvania, announced that his office would not criminally charge three State College police officers who were involved in the shooting death of Osaze Osagie, a 29-year-old Black man, in March. Osaze was shot and killed in his own apartment building. The only reason the officers were there is because his parents called the police to ask for help with their son, who was having a mental health crisis. The police responded to the parents’ plea to help a mentally ill person, and they ended up shooting the young unarmed Black man dead.

Cantorna’s decision wasn’t surprising, of course. Despite the epidemic of officer-involved killings – 992 people were shot and killed by police in the United States in 2018, disproportionately people of color – officers are rarely charged by prosecutors. And when they are charged, they are rarely convicted, even in a case like the death of Antwon Rose, a 17-year-old boy who was unarmed and running away from a traffic stop when he was killed by Officer Michael Rosfeld in East Pittsburgh, Pennsylvania, last year. Rose’s death was filmed by a bystander, but the jury acquitted Rosfeld anyway.

In Osaze’s case, there were no witnesses, and there was no video footage. There were four people on the scene; one of them is dead and the other three are police officers. So, Cantorna was left with only the officers’ stories in conducting his investigation. When he announced his decision, Cantorna effectively acted as a mouthpiece for the police. And he refused to name the officers involved, leaving people in State College to wonder who on the police force killed a man.

Osaze came to the attention of the State College police because his family was concerned that he may have been having a mental health crisis. The officers knew this when they approached his door. According to a statement released by the family, Osaze’s father was in the neighborhood, looking for him. DA Cantorna stated that all three officers had crisis intervention training and one had been trained as a crisis negotiator.

And yet, with all of that training and Cantorna’s contention that the officers followed it, Osaze still ended up dead.

The fact is that police officers should not be first responders to people who are in crisis. When they are, the odds increase that the person in crisis will be killed. Research indicates that at least 25 percent of people who are killed by police are in crisis. Helping people who are struggling with mental health disorders is a public health issue and is better left to healthcare professionals.

Some cities in the United States are taking this approach, sending crisis counselors or at least paramedics and nurses to the scene when the situation does not involve a crime in progress. And for the narrow situations in which police must respond, their training needs a total overhaul, to emphasize de-escalation techniques.

It was disappointing and, frankly, a bit frightening that DA Cantorna actually suggested loosening Pennsylvania law to make it easier for police to intervene with people with mental health disorders. State law only allows involuntary commitment when a person is an imminent danger to harm themselves or others. Cantorna’s rationale is that broadening the law will allow intervention before a person is in crisis.

While his reasoning sounds logical, in practice, it would likely lead to more tragedies like the death of Osaze Osagie. As long as police culture and training cling to a mentality of control and violence, giving police more power to engage a person who has not committed a crime is a terrible idea. The public needs less interaction with the police, not more.

According to Cantorna, more than 300 mental health warrants were served in Centre County in 2018. And Osaze’s death was the first officer-involved killing in the State College Police Department’s 100-year history.

That is little solace to the Osagie family, who called the police to help their son, not kill him.

Voters Showed Up in Pittsburgh to Talk Smart Justice. Their DA Did Not.

Panelists (from right to left) Lisa Freeland, Paul Jubas, Turahn Jenkins, Alyssa Snyder

by Ian Pajer-Rogers

On May 9, with less than two weeks to go before the first contested district attorney primary in Allegheny County in 20 years, ACLU-PA co-hosted a candidate forum to give voters the opportunity to hear from the incumbent, Stephen Zappala, and the challenger, Turahn Jenkins.

Unfortunately, voters were not given this opportunity as Mr. Zappala chose not to attend the forum. Speaking with the Pittsburgh Post-Gazette in the days following the forum, Mr. Zappala stated, “I’m not interested in talking politics with the ACLU or socialists.”

The charge that the candidate forum was “socialist” might come as a surprise to some of the co-hosts of the event, including the conservative group Americans For Prosperity, which, among other issues like criminal justice reform, advocates for a free market — Eugene Debs acolytes they are not.  

Once it was clear that Mr. Zappala was not going to attend, the candidate forum became a community forum, with three defense attorneys and a community organizer joining Mr. Jenkins on the stage for a vigorous discussion about smart criminal justice reform. The discussion ranged from topics such as money bail and pretrial detention, mandatory minimum sentences, and probation reform.

When discussing the need to get rid of mandatory minimum sentencing, Lisa Freeland, a federal public defender for Western Pennsylvania, noted that “most efforts to eliminate mandatory minimums have been met by prosecutors with the following: ‘we need mandatory minimums because it’s the only way to get a plea bargain’ … The prosecutors need these, they believe, to squeeze people.”

But, Ms. Freeland continued, “The real problem with mandatory minimum sentences is that they don’t work.”

In a conversation about much-needed probation reform in Pennsylvania, attorney Frank Walker neatly summarized what happens when a person violates probation, saying, “If you mess up on probation in state court and you mess up and go before the judge, they can do whatever they want … the worst part about it is you don’t see the judge right away when you violate. You might sit in jail for months before you see the judge again.”

Turahn Jenkins agreed and also invoked the financial burden associated with the fees and financial penalties that accrue while on probation, effectively criminalizing poverty, reminding the audience that there is “a large segment of our population on probation because they can’t afford to get off probation.”

The discussion turned briefly to the outsize influence that the Pennsylvania District Attorneys Association has in shaping legislation and lobbying the legislature.

The problem, according to Ms. Freeman, is that “the prosecutorial side of an adversarial system is seen as being fair and reasonable, while the defense side of that same system is seen as partisan — we just want to let people out of prisons … that’s a danger of having the PDAA without having an organization on the other side.”

The discussion ended with calls from Mr. Jubas and Mr. Walker for Allegheny County to institute a conviction integrity unit, which would review and make public all data regarding convictions in the district attorney’s office. District attorney offices are notorious for their lack of transparency and accountability. A conviction integrity unit would offer a measure of transparency and accountability to the public. A similar unit was established in Philadelphia several years ago and has been given an increase in resources under the leadership of DA Larry Krasner.

It’s a shame that Mr. Zappala declined to attend the candidate forum. A strong democracy is rooted in the ability of the voting public to make an educated choice at the ballot box. By ignoring requests to attend this candidate forum, as well as neglecting to respond to a criminal justice reform survey sent to both candidates, Mr. Zappala is not giving voters the chance to make that educated choice.

While Mr. Zappala completed a questionnaire on criminal justice reform earlier this year, he declined to respond to a candidate survey. You can see Mr. Zappala’s questionnaire responses and Mr. Jenkins’ survey responses at KnowYourDAinPA.org.

We encourage all Allegheny County voters to learn more about each candidate for DA and make a plan to go vote on May 21.

Ian Pajer-Rogers is a communications strategist with the ACLU of Pennsylvania’s Campaign for Smart Justice. 

A day at the Philadelphia Women’s Center: How staff navigate state restrictions to provide compassionate abortion care

By Julie Zaebst, Senior Policy Advocate, ACLU of Pennsylvania

On a recent day in March, a group of our staff was glued to our phones in anticipation of the Georgia state House vote on a draconian anti-abortion bill. The bill would ban abortion at six weeks gestation — a stage before most people even know they are pregnant. But as this circus was unfolding in Georgia, we were also preparing to spend the day at the Philadelphia Women’s Center, getting an inside look at what it actually means to provide abortion care under the current regime of restrictions and red tape in Pennsylvania.

The Philadelphia Women’s Center is an independent abortion provider that has been providing first- and second-trimester care for more than 45 years. Every day, their staff arrives at work prepared to navigate byzantine laws and regulations that were designed to make their jobs of providing safe, compassionate, and timely abortion care difficult. But despite the politically motivated restrictions, they’ve developed systems to make the experience as seamless as possible for patients.

By the time patients arrive for their appointment, they have already cleared countless hurdles. First, they must locate a provider and get themselves to the office. With more than 85% of counties in Pennsylvania lacking an abortion provider, this is no small feat. The number and locations of abortion providers is not a reflection of the need for care; rather, it is a reflection of the challenges of opening and operating a clinic, a task made more difficult by restrictions the state imposes only on abortion providers and not on other similar healthcare providers.

Of course, patients must arrange time off from school or work for their appointment. For low-income folks, this may mean a day without pay that their family counts on for survival. The majority of patients are already parents, so securing affordable childcare is often another obstacle that they face.

State law imposes a mandatory delay on patients: at least 24 hours before their procedure, they must receive state-directed counseling from a provider. The Philadelphia Women’s Center offers a couple of options to make this process as least burdensome as possible to patients. But if a patient misses their counseling session and they can’t reschedule quickly enough to satisfy the waiting period, they have to cancel their procedure and restart the scheduling process.

Perhaps the biggest barrier of all is the ban on insurance coverage of abortion care. During our visit, we had the chance to read patients’ entries in journals that the center provides in their waiting room. Many of them shared that their decision to get an abortion was driven by financial circumstances — they simply couldn’t afford to raise a child (or, in many cases, another child). According to a study by Guttmacher Institute, 75 percent of the people who received abortion care in 2014 were low-income.

Still, PWC staff must break the news to most of their patients that their insurance will not cover their procedure because state and federal law prohibit Medicaid from covering abortion care in most circumstances.*

Because most patients who are insured through Medicaid must pay out of pocket, some may wind up “chasing the fee,” as one staff member explained to us. A patient may take a few weeks to scrape together the money needed, only to find out that the cost of care has increased because they are now further along in their pregnancy — so they have to go back to the drawing board.

A patient must navigate all these barriers before they even arrive at the center for their procedure. And for some patients, the hurdles are even higher: for incarcerated folks, for instance, or for young people, who must obtain consent from a parent or get a judicial bypass.

When they arrive, patients will likely be greeted by anti-abortion protesters outside the clinic — but also by escorts, who help them make their way inside safely. There, staff will welcome them and prepare them for their procedure.

What we observed during our visit were dedicated, compassionate medical providers doing what they were trained and committed to doing: providing healthcare. The only difference we saw between the Philadelphia Women’s Center and any other healthcare facility? Doctors and patients — those who know best — face politically motivated restrictions and interference.

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.

One Determined Dreamer Has Paved the Way for Other Aspiring Lawyers in Pennsylvania

By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

Parthiv Patel (Photo: Ben Bowens)

On February 8, Pennsylvania quietly posted a new rule about who can become a lawyer.  The amended rule, adopted by Pennsylvania’s Board of Law Examiners (an arm of the Pennsylvania Supreme Court), makes clear that DACA recipients are eligible to be licensed attorneys in the commonwealth of Pennsylvania.

This may seem obvious. Of course DACA recipients should be able to be lawyers—just like anyone else who graduates from law school in the U.S., passes the bar exam, and satisfies the “character and fitness” requirements. Immigration status has no bearing on someone’s ability to be a good lawyer.

But before this month, there was no official word from Pennsylvania on this issue.

The new rule stops short of welcoming all qualified candidates to the bar, regardless of immigration status. It applies only to non-citizens with DACA status or some future equivalent status based on a DACA successor program. It is hopefully not the last word from Pennsylvania about immigration status and fitness to be a lawyer, but it was an important step in the right direction.

And the new rule was a long time in the making.

You can trace its origins back to December 2017, when ACLU client Parthiv Patel became the first Dreamer admitted to the Pennsylvania bar.

Or maybe further back to October 2016, when the Board of Law Examiners initially rejected Parthiv from the bar because of his DACA status, and the ACLU appealed and began advocating for his admission in what would become a year-long fight involving letters of support from dozens of respected institutions from across the commonwealth and beyond.

Or maybe even further back to 2012, when Parthiv got his DACA status, and his future opened up.

Deferred Action and Law School Dreams

Parthiv Patel was born in India. Like every beneficiary of President Obama’s Deferred Action for Childhood Arrivals (DACA) program, Parthiv was brought to the United States as a child. Like many, he grew up believing he was American. It was not until his late teens that he learned he was undocumented.

Under DACA, he was eligible to get authorization to work in the United States, and a small window of time during which the federal government promises not to deport him.

With that breathing room, Parthiv was able to set his sights on becoming a lawyer. He had seen how his immigrant parents had been cheated and lost money, unable to navigate the American legal system to protect their rights and without the resources to hire expensive lawyers. He wanted to become a lawyer to protect other small business owners against fraud.

After receiving DACA, Parthiv was accepted to the Drexel University Thomas R. Kline School of Law in Philadelphia.

Done with Law School But Not Yet a Lawyer

Three years later, in July 2016, Parthiv spent several days sitting alongside thousands of other law school grads taking the Pennsylvania and New Jersey bar exams. Like virtually all of his classmates, he was stressed about the grueling exam. And like many, he was anxious about whether he would clear the “character and fitness” evaluation, but for very different reasons from his colleagues.

What he was worried about what his immigration status. He was, as far as he knew, the first Dreamer to apply for a bar license in Pennsylvania or New Jersey.

In October 2016, just before Pennsylvania bar exam results were going to be posted online, Parthiv got a phone call from the Pennsylvania Board of Law Examiners. They told him, “I have good news and I have bad news. The good news is, congratulations, you passed the bar exam! The bad news is that we can’t admit you because of your DACA status.”

Opting Out of Exclusion

In 1973, the U.S. Supreme Court ruled that states can’t require U.S. citizenship as a condition of becoming a lawyer.  But a 1996 federal statute prohibits states from giving “benefits”—including professional licenses—to non-citizens without certain forms of legal status.

The statute contained an “opt out” provision, though. The law allows states to opt out of the prohibition by affirmatively deciding to confer certain benefits without regard to immigration status.

The ACLU-PA, along with Fred Magaziner and Rhiannon DiClemente from Dechert LLP and Samuel Stretton, represented Parthiv in appealing his Pennsylvania bar denial. In Pennsylvania, the courts have the exclusive power to regulate lawyers. So we argued that the Board of Law Examiners should exercise that authority to opt out. Dozens of organizations agreed with us and wrote letters of support.

More than a year after it had rejected him, the Board of Law Examiners finally sent Parthiv the standard letter that goes out to everyone who has been admitted to the bar in Pennsylvania.

Further to Go

There are thousands of other would-be non-citizen lawyers who missed out on DACA and may never get to become lawyers in Pennsylvania under the current rules.

In fighting for Parthiv’s bar admission, we argued that his admission should not be contingent on his DACA status. We stressed that all qualified candidates should be eligible to become lawyers, regardless of immigration status. Even without work authorization under DACA, undocumented people can legally work as lawyers in the United States on a pro bono basis or as independent contractors or solo practitioners.

Pennsylvania—and every state—should go further to remove barriers to professional licensing based on immigration status.

But in an era of near-constant, overwhelming bad news for immigrants, the step Pennsylvania took to open the doors of the legal profession to Dreamers—as imperfect as it is—is still a step in the right direction. Apart from the young, future lawyers who will benefit from the rule change, standing with Dreamers also has powerful symbolic value. Hopefully it will prompt other states—most of which have not addressed this issue yet—to lift barriers to bar admission based on immigration status and take other steps to protect undocumented people.

So welcome to the bar, Pennsylvania Dreamers. Together, we can keep fighting to make our profession—and our country—more inclusive.