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.

Happy 50th Birthday to Students’ Free Speech Rights!

Credit: Molly Kaplan/ACLU

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

On February 24, 1969—almost exactly 50 years ago—the Supreme Court decided that public school students’ free speech rights don’t disappear when they go to school.

That ruling grew out of John and Mary Beth Tinker’s decision to wear black armbands with peace signs to their public school in Des Moines, Iowa, to protest the war in Vietnam and mourn the dead. Their school had banned the armbands, and punished them for wearing the bands in spite of the ban. John and Mary Beth fought their suspension all the way to the Supreme Court, and won.

The armbands were controversial. One Supreme Court Justice observed that the armbands had led to discussion among students and warnings or ridicule by other students. Mary Beth’s math teacher said his lesson period was “practically wrecked” by debate sparked by the armbands. And they took many students’ minds off school and diverted their attention to the “highly emotional subject of the Vietnam war.”

But the Supreme Court ruled that that was not enough to justify censoring their speech.  The Court said:

A student’s rights . . . do not embrace merely the classroom hours.  When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without “materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school” and without colliding with the rights of others.

This was not the first time the Supreme Court stood up for students’ rights. In 1943, the Court ruled that students at public school have a constitutional right not to be forced to salute the flag. The Court explained that the First Amendment means that, even during wartime, public schools can’t force students to participate in symbolic acts of patriotism. The right to free speech also includes the right not to be forced to say things you don’t mean.

But Tinker v. Des Moines was the first time the Supreme Court laid down a broad, general rule to protect students’ rights not just to not be forced to say things they disagree with, but to speak their mind at school. That rule—which became known as the Tinker rule—is that schools can’t punish students for their speech unless the speech causes “substantial, material disruption” of class or other school activities, or the school has specific reasons to expect that it will.

This is a tough test for schools to meet.

The Tinker rule does have some exceptions. The Supreme Court later decided that schools can punish students for swearing or for making sex jokes at school, even if they’re not disrupting anything. And schools can punish students for encouraging the use of illegal drugs (or for nonsense statements that school officials think might be encouraging the use of illegal drugs—just ask Joseph Frederick, who got suspended for ten days for holding a “BONG HITS 4 JESUS!” banner at a parade during school time).

And if there’s some risk that a student’s speech might be confused for something the school said—like when students write articles for a school newspaper—then the school can exercise some extra control over what students say.

But the basic idea that schools can’t censor student speech just because it might be controversial or upsetting to other students is still the law of the land, and important now more than ever.

We’ve relied on the Tinker case to defend middle school students’ right to wear breast cancer awareness bracelets that said “i © boobies! (KEEP A BREAST)” on their school’s Breast Cancer Awareness Day.

We rely on Tinker when we advise students that they have the right to take a knee during the national anthem to protest police brutality and white supremacy, or issue guidance about students’ rights when participating in a walk-out.

And courts have cited the Tinker case in rulings protecting students when schools exceed their authority and try to punish students for what they say on their own time on social media.

For example, in 2013, the federal appeals court that covers Pennsylvania, New Jersey, and Delaware cited the Tinker case in ruling that schools can’t punish students for making satirical social media profiles about school administrators. This is true, the court ruled, even if the profiles use the kind of bad language and sexual innuendo that students could be punished for using in school. And even if the profiles are really offensive and hurtful. And even if they make their way into the school, and other students talk about them at school.

And we’ve cited Tinker in our lawsuit to get a cheerleader restored to her cheerleading squad after she was kicked off because she used profanity and criticized cheerleading in a Snapchat post that she shared with her friends on the weekend, when she was not participating in cheerleading.

At age 50, Tinker v. Des Moines is still the cornerstone on which students’ free speech rights are built and will continue to be built.

Let’s hope it outlasts us all.

PA Prisons’ New Legal Mail Policy Stifles Communications Between Lawyers and Prisoners

Photo: Ali Khan via flickr

By Andy Hoover, Director of Communications, ACLU of PA

At the first day of testimony in federal court in Harrisburg on Tuesday, four lawyers and one person who is currently incarcerated testified that the Pennsylvania Department of Corrections’ new policy of copying and storing mail between lawyers and their clients in the state prisons significantly hampered their ability to communicate with each other.

Federal district court Judge John E. Jones III is presiding over the hearing in PILP et al. v. Wetzel and Hayes v. Wetzel, two cases that challenge the prison system’s policy as a violation of the First Amendment right to attorney-client confidentiality.

In her opening statement, Alexandra Morgan-Kurtz, a staff attorney with the Pennsylvania Institutional Law Project, said that the department “overreacted” and that, “There’s a reason no other prison system in the country has adopted this
overly aggressive approach.”

Until last fall, legal mail was opened in front of the intended recipient, checked for contraband, and given to the prisoner. But in October, the department changed that practice. Now, legal mail is still opened in front of the prisoner, but, after checking for contraband, prison staff then copies the document. The copy is given to the prisoner, and the prison staff stores the original.

In testimony today via videoconferencing, Davon Hayes, a prisoner at SCI-Smithfield in Huntingdon who is challenging the practice, said that he has never actually seen the originals placed into the locked bin where they are to be stored and that he is unable to see the copier that is used for producing the copy.

Mary Catherine Roper, deputy legal director at the ACLU of Pennsylvania, and Su Ming Yeh, deputy director at PILP, both represent organizations that are plaintiffs in the litigation and that communicate regularly with people who are incarcerated. Or at least they did. Roper told the court that ACLU-PA stopped sending any privileged communications to people in DOC facilities and instead now sends a generic questionnaire, asking prisoners about their experiences with the new policy. And Yeh testified that PILP no longer sends legal mail that is specific and confidential. She called the department’s policy a “detriment to our cases and to the hundreds of people who contact us.”

Although the department’s policy prohibits staff from reading legal mail that they are handling, Roper testified that the idea that staff will simply avert their eyes from the pages they’re handling is “not credible.”

Furthering the point, in his own testimony, Hayes talked about the experience of a guard looking at his legal mail during a cell search in 2011, long before the policy of copying and storing mail started. According to Hayes, the guard read the complaints that Hayes had filed, including a complaint to the local district attorney. When Hayes asked him to stop, the guard called him “a rat” and kicked his mail and his religious materials.

Also on Tuesday, the court heard from two attorneys from the Federal Public Defender – Leane Renée, chief of the Capital Habeas Unit in central PA, and Lisa Freeland, chief of the FPD in western Pennsylvania. Renée and Freeland both discussed the impracticality of visiting their clients, with long drives across the state and hurdles created by prisons’ rules, which are often different from one prison to the next. Renée testified that, under the previous policy, lawyers in her unit would typically send letters with their opinions and thoughts about a client’s case and draft briefs. Her attorneys stopped doing that when the new process went into effect in October. Because the DOC also requires that legal mail provided by attorneys to their clients during visits be copied and stored, the lawyers in her office have no confidential way to provide physical copies of documents to their clients.

Freeland, who represents Hayes, said that her decision to cease sending confidential information put a strain on their relationship. Hayes had advanced his case through the appeals courts while representing himself. The Federal Public Defender started representing him last year, so when his new attorneys stopped communicating by mail, Hayes became frustrated and threatened to dismiss them, after years of having total control as his own lawyer.

On Wednesday, the ACLU-PA and our fellow plaintiffs will continue our case with testimony from several officials from the Department of Corrections, a former warden of San Quentin Prison in California, and another prisoner. Along with ACLU-PA and PILP, the other plaintiffs and co-counsel include the Abolitionist Law Center and the Amistad Law Project, with volunteer attorneys from the law firm Schnader Harrison Segal & Lewis. More information is available at aclupa.org/PILP.

Update: Wednesday’s proceeding has been cancelled due to weather.

Pennsylvania Can’t Be a Model for Reform if We Undermine People’s Rights

By Andy Hoover, Director of Communications, ACLU of PA

Elected officials and corrections administrators in Pennsylvania have been doing a bit of a victory lap after the recent announcement that our state prison population dropped by 1,000 people in 2018. On the heels of the passage of the Clean Slate Act — a new law to automatically seal some people’s criminal records from public view — some have gone so far as to call Pennsylvania “a model” for criminal justice reform.

But before anyone gets carried away with the idea that the commonwealth suddenly gets it on smart justice, tap the brakes: The legislature is on the verge of granting ballot access to a state constitutional amendment that would undermine the fundamental rights of people who are accused of crimes in pursuit of “victims’ rights.”

We all feel sympathy and compassion for people who have been victimized. It’s neither right nor fair that some people are harmed by someone else’s behavior. If the government can create programs to support victims, that’s all the better.

But the pending constitutional amendment — known as Marsy’s Law and bankrolled by a billionaire from California — is a deeply flawed and downright dangerous undercutting of defendants’ rights. Supporters of the proposal say that they want the rights of victims to be equal in the Pennsylvania Constitution to the rights of the accused. Their narrative fails to appreciate why the state constitution includes the provisions it does – and excludes others.

A person accused of a crime faces the full weight of the state bearing down upon them. The state is attempting to deprive that person of their liberty, possibly even their life. Pennsylvania’s constitutional framers did not want the government to have the power to jail someone without layers of protections. That’s why our principles as a state — and a nation — include due process, a guarantee of counsel, and a presumption of innocence.

Contrast these with victims’ rights, which arise out of a dispute between two private people. One person’s rights against another person are fundamentally different than a person’s rights against the awesome power of the government. This is why our constitution, which lays out the restrictions on government power, includes defendants’ rights and why victims’ rights are primarily contained in statute.

The proposed Marsy’s Law constitutional amendment runs afoul of the protections granted to those subject to the power of the state. The new guarantees in this proposal include a victim’s right to refuse “an interview, deposition or other discovery request” sought by counsel for a defendant. Think about that: A person’s freedom is on the line in a trial, and Marsy’s Law would prohibit them from having the necessary information that could prove their innocence or mitigate the severity of their sentence. That person’s right to a fair trial would be lost, and with it, the chances for grave miscarriages of justice to occur increase.

This legislation also gives victims’ a right “to be treated with fairness and respect for the victim’s safety, dignity and privacy.” On its face, that sounds reasonable. We’re all about fairness and privacy here at the ACLU. But in other states, police officers have used this same Marsy’s Law to hide their identity after they shot people. Law enforcement officers have twisted a law intended for victims to hide their own behavior, at the very moment when transparency is most critical — after an officer has committed an act of violence against a private person.

The proposal in Pennsylvania is littered with vague language. It includes the constitutional right “to proceedings free from unreasonable delay and a prompt and final conclusion of the case and any related postconviction proceedings.” This language could prevent a defendant from having the adequate time needed to present a defense or from the opportunity to have their case heard in the appeals process, which is guaranteed under the constitution. It’s worth noting that once in the constitution, vague language is incredibly difficult to amend when problems inevitably arise.

While our criminal justice system is far from perfect, the guarantees of both the Pennsylvania and U.S. Constitutions are intended to mitigate the mighty power of the state when a person is accused of a crime. Writing Marsy’s Law into Pennsylvania’s Constitution will further empower the state, at the expense of the liberty of the person who is accused. Members of the General Assembly would be wise to slow down, rethink what they’re doing, and, like legislators in New Hampshire, Idaho, Maine, and Iowa, deny Marsy’s Law ballot access.

Pennsylvanians Should Know How the State Police Is Monitoring Social Media

By Andrew Christy, Criminal Justice and Poverty Attorney, ACLU of Pennsylvania

“Sunshine is the best disinfectant.”

That’s a line that is used so much that it’s become almost trite. But it’s oft-repeated because it is so true. And here in the Keystone State, the Pennsylvania State Police is doing everything in its power to block access to its policy on monitoring social media. So we’re headed to the state Supreme Court to get it.

The ACLU of Pennsylvania’s attempt to obtain the state police’s social media monitoring policy has been a two-year odyssey that started in March 2017. Using the state’s Right-to-Know Law, we submitted a request for the policy. In response, the state police’s open records officer sent us a nine-page document that was so heavily redacted that it was nonsensical. Some pages showed only the headers of some sections. Other pages were completely blacked out. No reasonable person could conclude that such a response was transparent or in the spirit of open records.

This is the Pennsylvania State Police’s idea of an “open record.”

Pennsylvania’s Right-to-Know Law allows a person to appeal a denial or a partial denial of a request to the commonwealth’s Office of Open Records, an independent state agency that is intended to be a neutral arbiter in disputes over requests. After reviewing the state police’s social media policy in camera — a legal term that means the review is conducted privately and not as part of the public record — the OOR agreed with us that the policy should be an open record and that the state police’s claim that it could deny the request under the “public-safety” exception in the law was not plausible.

Score one for transparency.

But, as noted above, the saga did not end there. As they have the right to do, the state police appealed that decision to the Commonwealth Court, one of Pennsylvania’s appeals courts. Without reviewing the contents of the policy, the court sided with law enforcement and upheld the state police’s decision to give us the largely redacted policy.

It’s important to pause here for a moment and consider the implications of the court’s decision. By not reviewing the state police’s policy, which would have given the court an understanding of the rationale for redacting most of the document, the Commonwealth Court effectively gave state police — and any other law enforcement agency in Pennsylvania — a blank check to apply the public safety exception of the Right-to-Know Law to any open records request. That is a dangerous precedent and will allow law enforcement to act unchecked and without public accountability.

That’s why we’re taking this case to the Supreme Court of Pennsylvania. The public has a right to know how its state police monitors social media. We know that law enforcement can and has utilized social media to track activity protected by the First Amendment. This is not a hypothetical scenario from a dystopian science fiction novel. It’s real.

In 2018, the ACLU of Massachusetts released a report that found that the Boston Police Department had used software for tracking social media activity for a brief time in 2014 and then throughout 2015 and tracked keywords that included #MuslimLivesMatter, “protest,” “Ferguson,” and “ummah,” the Arabic word for community. The Boston police’s monitoring program swept up thousands of records, including a Facebook post by a then-City Councilmember who had mentioned Ferguson, Missouri, in writing about poverty and homelessness.

Fittingly, in a lesson on why public transparency is so important, Boston police dropped the program after a public backlash in 2016, when the department asked for bids on a $1.4 million dollar contract for another monitoring program, according to the Boston Globe.

In 2016, the ACLU of California found that the software company Geofeedia was marketing it’s monitoring product to law enforcement agencies as a means for tracking protests and referred to unions and activists as “overt threats.”

And we’re no strangers to such a controversy here in Pennsylvania. In 2010, another state agency, the Office of Homeland Security, contracted with a private company to provide daily bulletins of the activities of anti-fracking activists, antiwar organizers, animal rights demonstrators, and Muslims observing Ramadan, deeming them all threats to public safety. The director of the office was forced to resign over the incident, and then-Gov. Edward Rendell described the actions of the office as “extraordinarily embarrassing.”

That’s why we want to know what policy the Pennsylvania State Police has in place to control and restrict how social media monitoring is used in investigations. Power applied under cover of darkness can be extremely dangerous and damaging. We hope that the Supreme Court of Pennsylvania will shine some light on what the state police is doing.

It’s the End of the Road for the State Legislative Session. So What Happened?

Football player Malcolm Jenkins lobbying in Harrisburg for the passage of the Clean Slate Act.

By Elizabeth Randol, Legislative Director, ACLU of Pennsylvania

It’s official: Today marks the legal end of the Pennsylvania General Assembly’s two-year legislative session. The ACLU-PA’s work in Harrisburg often ranges from hair-on-fire to hurry-up-and-wait. Sometimes we’re able to celebrate our proactive work getting good legislation enacted. But much of what we do, and no less important, is defensive — trying to prevent bad bills from passing or making bad bills less bad.

If there’s one mantra we repeat at the ACLU-PA, it’s to pay attention to your state legislators. Bills passed in Harrisburg often have a far greater and more immediate effect on your life than those enacted in Congress.

Wins

In the 2017-2018 legislative session, we celebrated two major victories that will significantly improve the chances of people getting back on their feet post-conviction. The first was the passage of the Clean Slate Act. This new law – the first of its kind in the nation – automatically seals from public view the criminal records of people convicted of certain summary and misdemeanor offenses if they are not convicted of another crime within ten years.

The legislature also repealed a longstanding mandate to suspend drivers’ licenses of people convicted of crimes unrelated to operation of a vehicle, many of them drug offenses. Repealing this mandate will prevent more than 20,000 Pennsylvanians a year from unnecessarily losing their licenses.

We also successfully beat back yet another attack on reproductive freedom when Governor Wolf vetoed an abortion ban that, had it been enacted, would have been the most restrictive ban in the country and stopped a discriminatory amendment from the CHIP (Children’s Health Insurance Program) reauthorization bill, which sought to prohibit insurance coverage for transgender-related healthcare services.

Losses

The most frustrating loss this session was a bill that enabled the use of police-worn body cameras in Pennsylvania. While the use of body cameras can be an effective means of ensuring police transparency, the bill exempts footage from the state’s right-to-know law, severely restricting public access to video recorded by police cameras. As a result, it undermines the ability to hold police accountable and instead equips them with a powerful data collection and surveillance tool.

On the Lookout

There’s no rest for the weary – the General Assembly returns and reboots in January. Next session we anticipate continued fights against abortion bans, so-called “sanctuary city” legislation, restrictions on police transparency, and a proposed amendment to the PA Constitution known as Marsy’s Law.

The most significant battle we are preparing for is a campaign to prevent the reinstatement of mandatory minimum sentences in Pennsylvania. Reinstating these archaic provisions is an invitation to regress by re-adopting outdated and ineffective “public safety” measures that disproportionately damage communities of color and concentrate unreviewable power in the hands of prosecutors.

The midterm elections didn’t change the balance of power in Harrisburg — we still have a Democratic governor and Republican-controlled House and Senate. Democrats did pick up five Senate seats (breaking the Republican supermajority) and 11 House seats, which may result in increased negotiating leverage for Democrats. But those wins came at the expense of losing most of the moderate Republicans remaining in the legislature. And that may, unfortunately, result in an even more polarized legislature heading into the 2019-2020 session.

We know that it can feel like there are a lot of fires burning right now for people who care about civil liberties – not to mention basic human decency. We’re going to need you to achieve our goals at the state legislature next year. So rest well, enjoy the holidays, and we’ll talk again in January.

Severe Restrictions on Mail to PA’s Prisons Harm People Inside — And Undermine Attorney-Client Privilege

By Sara Rose

Imagine that you’re incarcerated in a Pennsylvania prison. Your primary means to connect with the world outside — your loved ones, your friends, and your attorneys — is the mail.

But under a new DOC policy, the only mail you receive are photocopies. Birthday cards signed by your family or a drawing sent by your child — you only get the photocopy. Legal correspondence that may or may not include sensitive information or grievances against employees of the prison — you only get the photocopy.

In August, the Pennsylvania Department of Corrections (DOC) locked down every prison in the state, returning all mail received during the two-week period to its sender. After the lockdown ended in September, the DOC began confiscating all incoming legal and personal mail, only allowing prisoners a photocopy of their correspondence. The DOC holds the original copies of legal mail for 45 days. All other mail is destroyed after it’s scanned it, but searchable digital copies are maintained for seven years. According to the DOC, the intent of the new mail policy is to prevent “unknown substances” from entering DOC facilities. But the result of the policy is to undermine prisoners’ relationships with their families, friends and attorneys.

Attorneys representing individuals in Pennsylvania’s state prisons have no faith that their correspondence with their clients will be kept confidential under this new policy, and experts in legal ethics have recommended that lawyers with clients in the state prisons should stop communicating by mail. But the other options lawyers have for communicating with clients in state prison — in person or by phone — are not feasible.  The state prisons where their clients are housed are often hours away from the lawyers’ offices and setting up confidential phone calls is often difficult. Mail is the only option most lawyers have to communicate regularly and securely with clients who are in prison.

Even in the most incarcerated nation on the planet, this policy is without precedent in any jail or prison from coast to coast.

That’s why the ACLU of Pennsylvania is part of a lawsuit filed last month challenging the new policy’s restrictions on legal mail and demanding that the DOC identify alternative methods to prevent contraband from entering its prisons. In an interview after the lawsuits were filed, the DOC secretary admitted that contraband entering the prisons via legal mail is rare and that the policy is a preemptive move. The DOC is severely compromising attorney-client confidentiality with no real evidence of a problem.

Depriving attorney-client communications of confidentiality chills prisoners’ constitutionally protected expression under the First Amendment. This violation of the First Amendment is the basis of our litigation.

This is a crucial test-case for jails and prisons nationwide whose administrators may be watching the outcome of this case to determine the future of their own mail policies. In this sense, Pennsylvania is ground-zero for protecting the rights of prisoners in accessing their mail and confidential attorney-client correspondence.

Certainly, the DOC should take the necessary steps to ensure the safety of its employees. Safety of DOC employees, however, cannot and must not infringe on the First Amendment protections of prisoners or their attorneys.

Joining the ACLU of Pennsylvania in the litigation are the Pennsylvania Institutional Law Project, the Abolitionist Law Center, Amistad Law Project, and Schnader Harrison Segal & Lewis LLP.

Sara Rose is senior staff attorney at the ACLU of Pennsylvania.

Philadelphia Police Should Not Enforce the Bias of 911 Callers

Commissioner Ross’s Response to a New Report Shows He Doesn’t Get It

Credit: Ben Bowens

By Reggie Shuford and Carl Takei

Last month, Juán-Pabló Gonźalez, a Black graduate student at Catholic University, attempted to do something mundane — study in the school’s law library. But the library clerk incorrectly told him he needed special permission to do so and then called campus police on him for being “argumentative.” Seven university officers responded and made him leave despite seeing his school ID.

Gonźalez’s run-in at the library happened within days of a white woman in New York City falsely accusing a nine-year-old Black boy of sexual assault at a Flatbush bodega, leading observers to dub her Cornerstore Caroline.

These are just the latest incidents in which white people have been caught on camera calling the police on a Black or brown person simply trying to go about their daily lives. Unfortunately, while some officers have modeled excellent ways to stop themselves from weaponizing the biases of 911 callers, police departments too often fail to adopt appropriate policies to screen and respond to such calls.

Case in point is the Philadelphia Police Department. In April, after a Starbucks manager in Rittenhouse Square called 911 on two Black men who were waiting for a business associate to arrive, two officers arrested the men for “defiant trespass.” Police Commissioner Richard Ross initially responded by saying the officers “did absolutely nothing wrong.” He later walked it back, stating: “I should have said the officers acted within the scope of the law, and not that they didn’t do anything wrong.”

The department later revised its policy for defiant trespass arrests, but it did not address the role of race and continued to ignore the possibility that 911 callers could be using police to victimize others.

These tasks were left to the Philadelphia Police Advisory Commission, the civilian agency that oversees the police department and makes non-binding recommendations to departmental leadership. Earlier this month, the commission released a report evaluating the Starbucks arrest.

The commission found that “the officers were purportedly trying so hard to ignore race that they did not consider race being a factor in the incident even when bystanders were shouting it at them” and that this led the officers to act in inflexible ways that resulted in an avoidable arrest. The commission also noted that some police department leadership took the extremely problematic stance that the officers should have acted no differently even if the manager had requested that “two N-words” be removed from the café, stating that as long as the person making the complaint was legally in the right, racial slurs and racist motivation should not matter.

In response, the commission recommended a series of changes to training and policies that would have led to a better response in the Starbucks incident and other situations when people call 911 to target Black people who are doing nothing wrong.

Commissioner Ross’s response, however, was jaw-dropping. He wrote, “The PPD cannot agree with the statement that racism has a profound effect on what drives citizen and police contact,” and flatly rejected many of the recommendations. The commission recommended that the police department “develop a clear and consistent communication strategy to educate the public regarding how and when 911 should be utilized” and take steps to address the weaponization of police by 911 callers. Commissioner Ross responded that “any messaging by the PPD of when people should or should not call 911 will have a chilling effect” and “compromise the trust in the community that the PPD continually strives to improve.”

The commission recommended that the police department encourage “supervisory assessment of problem solving skills” to help avoid unnecessary arrests. Commissioner Ross rejected this, too, doubling down on the department’s existing “race-blind” approach to racism.

This blinkered approach ignores the fact that if a police officer ejects a Black or brown person from public space purely on the say-so of a white person who is motivated by racial bias, that officer is enforcing racism. When police allow themselves to be weaponized by biased 911 calls, they put Black and brown people at risk, send a message that they must accept living as second-class citizens, and undermine the legitimacy of the police. That’s why the ACLU has launched a Living While Black on Campus campaign aimed at getting college police departments to adopt a simple model policy for screening and responding to bias-based calls and described principles for handling these calls that can apply to all police departments.

Starbucks’ Chief Operating Officer Rosalind Brewer described the April 2018 incident as a “teachable moment” for the company and stated, “Good companies acknowledge their mistakes and learn from them and then make the necessary changes.” Commissioner Ross should take note — if a coffee company can acknowledge its own mistakes and change its policies and practices to regain the trust of people of color, the police have no excuse for refusing to do so.

Reggie Shuford is the executive director of the American Civil Liberties Union of Pennsylvania. Carl Takei is a senior staff attorney at the ACLU’s Trone Center for Justice and Equality.