Philadelphia’s district attorney ran on an agenda to reform his city’s criminal justice system. Now he’s starting to with a new policy on bail. The question is: Can it work?
Philadelphia District Attorney Larry Krasner was elected last November on a platform for change. In the earlier primary of seven Democrats who ran to be the city’s prosecutor, all pledging to reform the criminal justice system, he was the most politically progressive. The question was: Could he succeed where others have failed?
Last week Krasner took his first significant step toward that goal, and for many activists it’s a promising one. He announced his office would no longer seek cash bail when charging defendants with 25 different crimes, including prostitution, retail theft, and trespassing. Reducing reliance on cash bail—the system by which people who can’t afford to pay are held in jail while they await trial—has been one of the top priorities of reform-minded prosecutors and other criminal justice reform advocates.
A growing number of cities and states have taken significant steps to alter their cash bail systems. But Krasner and, a month earlier, the Manhattan district attorney, appear to be the first DAs in major cities to attempt reform through the prosecutor’s office (in Massachusetts, the Middlesex District Attorney announced a similar policy earlier this year). Krasner took this step with the very direct support of his constituents: Three weeks earlier, Philadelphia’s City Council passed a resolution calling on Krasner and city officials to end money bail.
As bail reform marches forward—both in Philadelphia and across the country—the questions now are whether Krasner’s move will be effective, and what other changes may follow from it. Many activists for criminal justice reform say the directive is promising, but will depend on accountability mechanisms, and a cultural shift within the criminal justice system.
“The most important part of this new policy is beginning to change the culture within the courtrooms,” said Mark Houldin, policy director at the Defender Association of Philadelphia. “Before Larry Krasner took office, we never saw district attorneys asking not to have cash bail.”
Krasner estimated that 20 percent of the 6,100 people in Philadelphia jails are incarcerated because of an inability to pay bail, and that the recent move could mean that roughly 10 percent of cases that pass through the DA's office could result in release.
But achieving that number will depend on the cooperation of all players in the criminal justice system, said Insha Rahman, program director at the Vera Institute of Justice. Even if a prosecutor doesn’t ask for bail for a particular defendant, magistrate judges could still make the decision to order it. Watchdogs will need data to track how the policy change is playing out.
As a model, Rahman cited Cook County, Illinois, which recently expanded its disclosure of data about the jail population (including instances when bail is set), making it easily accessible on the sheriff’s website.
Ruben Jones, a member of both the No215Jail Coalition, a collective of organizations looking to end mass incarceration, and the Coalition for a Just District Attorney, said he and other Philadelphia activists plan to create report cards for judges that will educate the public about how they have ruled on issues of bail.
Bail’s initial purpose was to incentivize people to show up for their court date by holding their money. So Rahman stressed that municipalities trying to enact bail reform will also need to bolster pre-trial support and services for defendants that get them to court, including transportation, and notifications like the text message system that New York City recently implemented to remind people to show up for their court dates.
Should judges not toe the reform line, Cook County offers another possible model. Last September, the county’s chief judge announced that he would be replacing the judges who presided over bond hearings at the Leighton Criminal Courthouse after various other methods had not appeared to encourage the sitting judges to grant lower bail amounts or set alternatives.
Even if Krasner’s policy is broadly applied by judges, both his new policy and a similar one rolled out by Manhattan District Attorney Cy R. Vance, Jr. only apply to a subset of nonviolent crimes and misdemeanors. For many reformers, the next step is applying this principle to a broader set of crimes.
“The question,” said Kelsey Reid, a program associate in the Vera Institute’s Center on Sentencing and Corrections, “is what’s next beyond those 25 charges—what’s the next set of changes they feel comfortable making?”
The pre-trial release of people charged with more serious crimes is likely to be a controversial issue. One of the main arguments brought against bail reform is public safety. For that reason, lawmakers sympathetic to reform find it easier to convince the general public that someone arrested for petty theft or a non-violent drug offense should be allowed to return home before their trial.
But more serious allegations “are in fact still simply allegations” before a trial, Houldin said. And cash bail for people charged with violent felonies only keeps them in jail if they aren’t able to pay it. (Even in some cases where a defendant is charged with murder, they can walk free until their trial if they have enough money on hand.)
Hannah Sassaman, the policy director at the Media Mobilizing Project, a nonprofit activist group, called the 25 charges “a great start” and said she was glad that Krasner’s first phase of bail reform did not involve an algorithm to decide whether or not bail would be set. If an algorithm does end up being used, she said, “we have to make it transparent.”
Algorithms are being used in courts around the country. In New Jersey, an algorithm determines whether a person is a flight risk or a threat to public safety: The method decreased the state’s pre-trial jail population by over a third in just a year. But many bail reform activists stand firmly opposed to algorithms, believing them to be inherently biased against poorer communities of color. (Academics and policymakers, on the other hand, believe that argument doesn’t fully consider the ways in which humans are themselves biased, and the way algorithms can be calibrated equitably.)
For Jones, Krasner’s new directive is a sign of larger things to come. While he wants to see more aggressive reforms, Jones believes this policy portends a change in the way bail is considered and set in the city. “If [Krasner] wants to turn that battleship, maybe he’s only turning it one degree,” he said, “but that one degree is going to change the trajectory.”