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.

The work of defending civil liberties goes on

ACLU of Pennsylvania Executive Director Reggie Shuford addresses the crowd at the “Show Love for the Constitution” event. | February 15, 2017. (credit: Ben Bowens)

Dear supporter,

In some ways, our country changed on November 8. The United States elected a leader who, by all measures, is hostile to the basic foundations and principles that we stand for. President Trump and his regime deserve every ounce of pushback we can gather, and the ACLU will be on the front lines of the resistance.

And yet, at the ACLU of Pennsylvania, we have always taken the long view. Issues that are with us today were with us before November 8 and, to one degree or another, would have continued regardless of who was elected, including mass incarceration, police brutality, inequality for gay and transgender people, and efforts to compromise women’s access to reproductive healthcare.

You may have heard that there has been a major increase in giving to the ACLU since the election. While much of that growth has occurred at the national level, in fact, here in Pennsylvania, our membership has tripled. We saw a notable rise in donations after Election Day, but the real surge of giving happened after the weekend of the Muslim Ban. It was in that moment that many Pennsylvanians realized the significance of the threat to our values and to the people we most cherish.

You have put your trust in the ACLU in these challenging times. We are grateful for that trust and take it as a responsibility. Thank you.

The generous outpouring of support we’ve received in recent months has allowed us to think big about our work. It is my intention to add new staff to our existing staff of 22. Our current team has the talent, skills, and persistence to take on the many challenges before us. I also know that we can advance the cause of civil liberties throughout Pennsylvania by bringing even more talented people on board. The times demand it. Your support enables it.

In the months ahead, you’ll hear more about our Smart Justice campaign, our effort to reform, reinvent, and revamp the criminal justice system; our Transgender Public Education and Advocacy Project; the campaign for District Attorney in Philadelphia; the many bills we’re advocating for and against at the state capitol; and more litigation to push back against government excesses wherever they occur.

The ACLU of Pennsylvania is prepared to thwart the Trump administration’s worst instincts as they play out in the commonwealth.

And state and municipal officials aren’t off the hook. We’re working with immigrant communities to monitor federal immigration enforcement tactics while also standing with municipal governments that insist they won’t bend to every demand of ICE. We’re insisting that the commonwealth keeps its commitment to open beds for people who are too ill to stand trial and are being warehoused in local jails. We’re working at the state legislature to defeat efforts to hide the identity of police who seriously injure and kill people and to hide video that captures police brutality from the public. And we are active in ongoing struggles to diminish police presence in schools, to stop rollbacks of women’s reproductive healthcare, and to fight the practice of jailing people for their debts.

The ACLU of Pennsylvania has the infrastructure and the experience to defend civil rights at every turn. Consider some of our recent work:

  • Our legal team successfully freed travelers who were detained at Philadelphia International Airport the weekend of Muslim Ban 1.0, our advocacy team supported the protests at airports in Philly and Pittsburgh, and our communications staff echoed the message to #LetThemIn.
  • Two weeks ago, we settled a lawsuit against the School District of Lancaster for denying enrollment at its regular high school for older refugee students. Older refugee students will now be able to attend the regular high school instead of being segregated at an alternative school.
  • Over the last month, our legislative director has been busy at the state capitol in Harrisburg lobbying against efforts to reinstate mandatory minimum sentencing, which has been suspended for two years due to court rulings.
  • In tandem with allies, our advocacy team has launched the Philadelphia Coalition for a Just District Attorney, an effort to push the candidates for district attorney to commit to reforming the criminal justice system.
  • Last week, our lawyers filed to intervene to defend a school in Berks County that has been sued for affirming its students’ gender identity. We’re representing a transgender student and a youth advocacy organization who would be harmed if the lawsuit successfully overturns the school’s practice.

These five examples are just from the last two months. In fact, four of them happened in the last two weeks.

My favorite playwright, Pittsburgh native August Wilson, said this about gratitude in his play Two Trains Running:  “You walking around here with a ten-gallon bucket. Somebody put a little cupful in and you get mad ’cause it’s empty. You can’t go through life carrying a ten-gallon bucket. Get you a little cup. That’s all you need. Get you a little cup and somebody put a bit in and it’s half-full.”

Well, thanks to you, our ten-gallon bucket runneth over.

Onward!

Reggie Shuford
Executive Director, ACLU of Pennsylvania

The Most Important Criminal Justice Reform Case You’ve Never Heard Of

By Mary Catherine Roper, Deputy Legal Director, ACLU of Pennsylvania

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On Wednesday, the Supreme Court of Pennsylvania (SCOPA) heard argument in Kuren v. Luzerne County, which may be the most important case you’ve never heard of. The one question before SCOPA in Kuren is whether clients of an understaffed public defender office who know their lawyers do not have time to fight for them can ask any court to protect their rights.

Like many places around the country, public defender offices in Pennsylvania are chronically underfunded and understaffed. If you are one of the 80% of people charged with a crime who cannot afford to hire a lawyer, that means you will be represented by a lawyer who has so many cases that he or she has little or no time to talk with you, no time to hunt down documents or witnesses who can help with your defense, no time to argue for a reduction in your bail or your release without bail, and no time to consider your case on an individual basis. You will see your lawyer only for a few minutes at court before your case is called – or, if you can’t make bail, through a video link while your lawyer stands in a courtroom and you sit in jail.

In most counties in Pennsylvania, your local PD office is a “plea mill.” That means that your lawyer will have no chance to investigate your case, but will bring you a deal and tell you that’s the best you will get from the prosecutor. He or she will tell you that the sentence, if you lose at trial, will be much worse, and that you will wait a year – likely in jail – for that trial, during which time you will lose your job, your home, and custody of your children.

But unlike any other state in the country, Pennsylvania has NO statewide funding for or oversight of PD offices. The local county government decides how much funding to give its PD office. Now, if Luzerne County and the Pennsylvania Commonwealth Court have their way, no court can order them to provide more resources.

In April 2012, the ACLU-PA and Dechert LLP filed suit against Luzerne County on behalf of Al Flora, Jr., who was then the Chief Public Defender of Luzerne County, and indigent criminal defendants whom the overloaded PD could not represent.

Al Flora, Jr. |  ©Marco Calderon Photography

Al Flora, Jr. | ©Marco Calderon Photography


The ACLU presented the court with huge amounts of evidence that the Luzerne County PD office couldn’t keep up with all of the people who needed help. Most of the lawyers in the PD office worked without desks, computers or even phones. The administrative staff could not even keep track of files, much less help the lawyers with investigations or client communications. Two months after we filed suit, the trial judge ordered the county to allow Flora to hire more lawyers as a first step, and to come up with a plan to deal with the “crisis” in the PD office.

Luzerne County’s “plan” to deal with the crisis? Firing Al Flora and hiring a new Chief Public Defender who tried to stop the case from moving forward.

When the ACLU continued the suit on behalf of the indigent clients who rely on the PD office, the county argued that criminal defendants aren’t allowed to file suit to protect their right to adequate representation – that as long as they have a lawyer in name, they have to wait to be convicted, then appeal their case, then file a “post-conviction relief” petition claiming their lawyer didn’t do a good enough job. The trial court agreed and dismissed the claims. The Commonwealth Court agreed and affirmed. Now it is for the Pennsylvania Supreme Court to decide.

But the court will have some help. The United States Department of Justice filed a brief with the Pennsylvania Supreme Court saying that PD clients in Pennsylvania should be able to sue to improve the PD office, just as PD clients in many other states have done. The American Bar Association also chimed in, as did the National and Pennsylvania Associations of Criminal Defense Lawyers. And the Innocence Project, which has proven the innocence of hundreds of wrongly convicted people, filed a brief saying that inadequately prepared lawyers are “the biggest factor” leading to wrongful convictions.

Al Flora lobbied the county for additional funds for two years before resorting to filing suit. If the county can fire any chief public defender who is willing to sue, and can stop PD clients from suing, then there will be no protection for the rights of thousands of poor people in Pennsylvania who are charged with crimes.

We need the PA Supreme Court to get this one right.

Mary CatherineMary Catherine Roper is the deputy legal director at the ACLU of Pennsylvania, where she coordinates litigation on a broad range of civil liberties issues, including freedom of speech, religious liberty, racial and ethnic justice, equality for lesbians and gay men, student rights, privacy, prisoners’ rights, and police misconduct.