Pa. High Court Stokes Bail Reform Hopes In Philly

By Matt Fair | July 14, 2019, 8:02 PM EDT

The Pennsylvania Supreme Court has agreed to investigate allegations of systemically excessive bail practices on the part of arraignment judges in Philadelphia, a move that gives hope to reformers following a lawsuit by the American Civil Liberties Union earlier this year.

The lawsuit, which came after volunteers spent a year observing more than 2,000 arraignment hearings in the city, accused magistrate judges of failing to abide by state procedural rules requiring them to consider a defendant’s financial status when setting bail.

While the state’s high court shot down a request for an order that would have required the city’s magistrates to start immediately complying with rules regarding bail, the justices said on Tuesday that they were appointing a special master to investigate the issue and make recommendations on potential remedies.

“The court has ordered a broad investigation into our allegations that bail is not following the rules in Philadelphia, and that’s great,” said Mary Catherine Roper, the deputy legal director of the ACLU of Pennsylvania.

She said she hoped the investigation would result in the justices taking action to ensure that rules regarding bail, including state constitutional provisions declaring all prisoners to be “bailable by sufficient sureties,” were being followed.

“We are hoping that ultimately there is an order from the Supreme Court that when you set bail, you have to set an amount that considers a person’s ability to pay,” she told Law360. “We are looking for an order that makes good on the promise that we think is in the Pennsylvania Constitution that no one will sit in jail just because they’re poor.”

According to the ACLU’s 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.

On top of that, the Pennsylvania Constitution requires prisoners to be freed on bail, with exceptions for capital cases and crimes that could result in a life sentence, “unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community.”

Despite the requirements, however, the ACLU said that judges in Philadelphia made an admitted habit of setting bail amounts based on the offense committed, without considering the financial wherewithal of defendants.

In total, the complaint said that, of the just over 2,000 bail hearings the ACLU’s volunteers observed, the judges failed in 90% 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.

Overall, monetary bail was assigned in 42% 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.

In a response to the ACLU’s lawsuit at the end of March, the city’s court system — known formally as the First Judicial District — defended the bail practices of its magistrates.

“Using the information available, the magistrates follow the Rules of Criminal Procedure in making their judicial decisions,” the court said in a filing.

It added, however, that it was committed to instituting certain criminal justice reforms and was generally willing to work with outside parties to help further those priorities.

Roper told Law360 that the ACLU had shared its finding regarding bail hearings with the Philadelphia courts prior to filing suit, but said the group still felt it was necessary to file suit to try and resolve its concerns.

“We certainly had some discussions with the court, but then moved ahead with the litigation,” she said. “We certainly told them what we saw and why we thought it was a problem before we brought the lawsuit.”

In issuing its order on Tuesday, the Pennsylvania Supreme Court named Senior Judge John Cleland as special master to preside over the inquiry, and gave him 90 days to take testimony and conduct any potential evidentiary hearings.

Judge Cleland will then have two months to put together a report and recommendations for the justices, which both the city and the petitioners will have an opportunity to respond to.

After that, the prospect of any final action will be in the high court’s hands.

A spokesman for the Philadelphia courts declined to comment.

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--Editing by Katherine Rautenberg.