With the passage of a new resolution, Philadelphia becomes the latest city pushing to end money bail.
On Thursday, the Philadelphia City Council unanimously voted to pass a resolution calling on the city’s District Attorney and Pennsylvania officials to end the practice of using money bail as a means of pre-trial detainment.
In a speech two days before the vote, Councilman Curtis Jones framed bail as a medieval tool that still lived inside the city’s modern criminal justice system. “Anything that’s 1,000 years old might require a check-up, a fix-up, a tune-up, and a change,” he said.
Jones discussed the way cash bail affects the poor, pointing out that defendants will often admit to crimes simply because they know they cannot afford bail. The specter of bail has been shown to increase the likelihood of a conviction by 12 percent and of future recidivism by 9 percent.
“[Defendants] plead guilty because they want that pressure of incarceration off of them,” said Johnson, and a desperate guilty plea could affect a person for the rest of his or her life. “There are about 200 things they will never get to do or be in this country, ranging from living in public housing, to being a postman, [to] receiving a federal loan to start a business,” he said.
Across the nation, 62 percent of people in jail are there because they are awaiting trial, usually for misdemeanors or lesser offenses. In Philadelphia, a third of defendants are incarcerated solely because they can’t afford bail. In a report released in October, Philadelphia City Controller Alan Butkovitz reported that the city could save more than $75 million a year by eliminating the cash bail system.
Over the past two decades, the average amount of bail set has more than doubled, from $25,400 to $55,400. However, per a study from the Brookings Institution, a quarter of American families are unable to cover a $2,000 emergency within a month unless they take out a loan or sell something. As a result, even when lower bail amounts are set, defendants often have difficulty making them; in Philadelphia, roughly half of defendants cannot post bail set at $5,000 or less. This is also why the bail bonds industry, which argues that handing over money is the only way to ensure people will return to court, has vociferously combatted attempts at bail reform whenever they spring up.
The new resolution isn’t a binding law; it does not force either the city or the state to put a full stop to cash bail. Instead, it is “encouraging the Philadelphia District Attorney’s Office and First Judicial District of Pennsylvania to institute legal policies that reduce reliance on cash bail,” and also calls upon the state legislature and state supreme court to revise the state laws and procedural codes that currently govern bail. But advocates are hoping that the city council’s support will be a catalyst for change in Philadelphia.
“This sends a message to stakeholders in the city that the council will not support continuing to use monetary bail,” said Cara Tratner, a community organizer with No215Coalition and the Philadelphia Community Bail Fund. “We’re hopeful the judicial district will heed that call and make the local changes they’re able to.”
Philadelphia is a new entrant to a movement that has been on the upswing. In 1991, D.C. effectively put an end to its bail-bond business, and it now releases 90 percent of defendants to await trial outside of prison. Last year, New Orleans implemented a pilot program that used a risk-assessment tool to cut down on cash bail. Atlanta is considering a proposal to eliminate cash bonds next week. Nashville has plans to overhaul its pre-trial release program early this year.
“There’s a real movement across the country,” said Pilar Weiss, project director of the National Bail Fund Network. “We see local organizations and community bail funds that have been highlighting the issue, whether it’s on the city or county level, and people are starting to take note.”
Cities have limited control over how much they can truly do to end the system of cash bail. New York City has taken significant steps: It instituted a pre-trial release program, expanded its Bail Expediting Program, and established a city-run bail fund. But only New York State has the power to abolish cash bail entirely, and state legislatures are often more conservative than blue cities clamoring for criminal justice reform.
Last November, the Pre-Trial Justice Institute released a report entitled “The State of Pre-Trial Justice in America,” which gave Pennsylvania a “D” ranking after taking into account the state’s pretrial detention rate per 10,000 residents (15.9), the percentage of state residents who lived in a county that used a valid pre-trial assessment tool (9.6), and whether or not the state had functionally eliminated money bail (it had not).
While Weiss admits that there needs to be state action in order for bail abolition to be the law of the land—“completely clear” and without “any wiggle room”—she believes that a lot of power lies at the city level. “There’s so much [local] discretion in the system at this point,” she said. “It’s important to make sure that the pressure is on actors that have power, like DAs, and judges, [to] actually make huge steps forward.”
In 2016, researchers at Princeton University analyzed court data in Philadelphia. They reported that although the city’s bail unit collected information on arrested individuals (noting the severity of the charge, the person’s family or community ties, warrant history, and financial information) and used that to create a release recommendation, the bail judge only followed the recommendations half the time. Instead, most judges ended up deferring to money bail.
Charles Daniels, the chief justice of New Mexico—a state that in 2016 passed a law barring judges from detaining people who did not pose a flight risk —told NPR that judges often felt pressured to hold defendants on high bail. That way, Daniels said, “they will have less criticism from the public for letting someone out if that person gets out and commits another crime.”
This is why reform, even when it is on the books, can be difficult to enforce without concentrated oversight. In New York State, for example, despite the fact that the law provides eight alternatives to cash bail, in practice judges will most frequently use the monetary option. Similarly, a judge ordered Harris County, in Houston, to stop detaining people in jail because they could not afford bail. Yet a year after the ruling, the Houston Chronicle reported that homeless and low-income people were still being disproportionately affected by a system that had few safeguards for them.
But Philadelphians who want bail reform are hoping they will find a dogged ally in Larry Krasner, Philadelphia’s newly-elected District Attorney, who is sympathetic to the cause. A former civil rights lawyer, Krasner has said he wants to eliminate bail for nonviolent offenses. He has also has pledged to meet regularly with the Coalition for a Just District Attorney, a group that focuses on prison reform.
“We’ll be asking [Krasner and his staff] to tell us, ‘How often are you asking for bail? For what charges?’” said Hannah Sassaman, the policy director at the Media Mobilizing Project, a nonprofit activist group. “We’ll be able to watch the courts, be able to see if the DAs are reducing bail, and the kinds of charges we’re looking at. If the courts are still assigning bail, we’ll know we need to be targeting bail magistrates and the courts.”
What steps the city and state will take from here remain to be seen. But Sassaman believes that the resolution’s passage is the first step to ending “a policy that is a brutal tax on poor, primarily black and brown people in our city.”
“This,” she said, “is part of an arc that is very slowly but very clearly bending towards justice.”