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Philly’s Skewed Bail System Stranding The Poor, Suit Says

By Matt Fair | March 17, 2019, 8:02 PM EDT

Josh Glenn should have been going to high school when he turned 17, but instead he was sitting in a Philadelphia jail cell after his family was unable to afford $2,000 in bail set following his arrest on an aggravated assault charge that was eventually thrown out.

“I sat there for 18 months awaiting trial until they dismissed the case,” Glenn told Law360. “The crazy thing too was I wasn’t able to see my mom that whole 18 months, I didn’t see my family, nobody. It had a bad impact on me.”

When he was finally released, Glenn was only able to earn his diploma after going through a period of homeschooling in his West Philadelphia neighborhood.

“I didn’t graduate with a class, I didn’t go to prom, any of that stuff,” he said.

Now, more than a decade later, Glenn is looking to help end the disruption that pretrial incarceration can cause as he joins a newly filed lawsuit challenging allegedly excessive bail practices on the part of Philadelphia judges.

Glenn, the co-director of a Philadelphia-based group working with juveniles being charged as adults, and the American Civil Liberties Union asked the Pennsylvania Supreme Court in a complaint on Tuesday to force the city’s judges to abide by state procedural rules which require them to consider a defendant’s financial status when setting bail.

The lawsuit, in which Arnold & Porter Kaye Scholer LLP is also representing the petitioners, comes after a year of work by ACLU volunteers observing more than two thousand bail hearings in the city.

“What we saw there was heartbreaking,” said Mary Catherine Roper, the deputy legal director of the ACLU’s Pennsylvania chapter. “There were hearings that would last three minutes, maybe less. Bail was assigned without any consideration to individual circumstances — whether someone was homeless, whether someone was a single parent, whether someone needed medication, or needed to get to school. That is not how the system is supposed to work.”

Philadelphia’s reform-minded new district attorney, Larry Krasner, announced after taking office last year that his office would stop seeking cash bail for many defendants accused of low-level crimes. But even with the DA’s office seeking cash bail in fewer cases, ACLU criminal justice policy counsel Nyssa Taylor said that bail decisions were still left to the discretion of judges who too often showed a willingness to keep defendants in detention until trial.

“To some extent, the bail magistrates are following [the DA’s] recommendations, but in some cases they are not,” Taylor said. “The problem here is that the magistrates are not following the rules. They are not asking whether people can afford the bail, and in a number of cases they are setting bail deliberately too high for people to make.”

According to the complaint, the state’s Rules of Criminal Procedure require the six magistrate judges tasked with setting bail during criminal arraignments in Philadelphia to set “reasonable” bail amounts that “shall not be greater than is necessary to reasonably ensure the defendant’s appearance” at subsequent court proceedings.

Instead, the complaint said that judges in Philadelphia made an admitted habit of setting bail amounts based on the offense committed, without considering an individual defendant’s financial wherewithal.

In total, the complaint said that, of the just over 2,000 bail hearings the ACLU’s volunteers observed, the judges failed in 90 percent of the cases to inquire whether the individual being arraigned could afford to pay their bail.

And even when a judge did receive information about a defendant’s ability to pay the bail, it did not seem to impact the ultimate decision, according to the complaint.

The complaint pointed to several specific examples, including one where a judge imposed $450,000 in cash bail after learning the defendant was unemployed. In another, a judge imposed a $50,000 cash bail after learning the defendant had recently lost his job and that the building in which he lived had burned down.

Overall, monetary bail was assigned in 42 percent of the cases observed, with the bulk of defendants in those cases having already been declared indigent and assigned a public defender, according to the complaint.

“Respondents routinely appoint counsel on the basis of a defendant’s indigence in one breath, then set thousands of dollars in bail in the next,” the complaint said.

To rectify the problem, the legal team behind the challenge said that the Supreme Court needed to get involved and ensure that procedural rules were being followed.

“It is mandatory that the bail magistrates follow the rules, and they are not doing that,” Roper said. “When a judicial officer goes off the rails, the only authority that can tell them what to do is the Supreme Court of Pennsylvania.”

A spokesperson for the Philadelphia County courts declined to comment on the case.

--Editing by Pamela Wilkinson.

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