In 2015, Eugene Lee spent three months in jail for a botched armed robbery.
While that might not seem like a long time, you should know that Lee was not convicted before being sent to jail. He was also not the gunman in the incident. In fact, the robbery involved a toy gun that someone else held on a man until the victim convinced them that he was also armed with a real gun. According to the Inquirer, no one was injured. No property was lost.
But at Lee’s arraignment, a judge set bail at $75,000, meaning he would have to pay $7,500 for his freedom even though he hadn’t been convicted of a crime. He couldn’t afford that amount, so Lee spent time in jail because he was poor and unemployed. But Lee had a pretty good reason for not having a job.
He was 15 years old.
According to the federal law and Pennsylvania statutes, there are two reasons for money bail: To ensure the safety of the public or to prevent a defendant from fleeing. The Constitution forbids excessive bail and, according to legislation, bail amounts are not intended to, nor should they reflect the seriousness of the alleged crime or any other aspect.
But apparently in Philadelphia, the law does not matter.
On Tuesday, the ACLU of Pennsylvania and the law firm of Arnold & Porter filed a lawsuit with the state’s Supreme Court for violating the rules regulating money bail. The complaint (pdf) alleges that Philadelphia arraignment court magistrates disregard the rules on pre-trial detention by setting unreasonably high money bail amounts with no regard for the law.
The suit was filed on behalf of a group of citizens who are currently incarcerated and two community groups who are working to reform the practice of money bail. In 2018, after viewing hundreds of arraignment hearings in Philadelphia, the ACLU of Pennsylvania wrote a letter to the state’s Fourth Judicial District explaining Philadelphia’s broken pre-trial detention system. Among other things the report noted:
- First Judicial District bail commissioners routinely set high bail amounts for people who they know are indigent.
- Despite the constitutional prohibition against excessive bail, commissioners do not assess the ability of accused citizens to pay bail amounts or look for non-monetary solutions for pretrial release.
- The court assigns high bail amounts for serious charges, regardless of the defendant’s risk of flight or danger to the community.
- Defendants are often barred from speaking during bail hearings, which last an average of 2.3 minutes.
- Public defenders do not have an opportunity to consult with their clients before or during the hearings.
“We observed more than 2,000 bail hearings in recent months and found that bail magistrates were regularly violating rules intended to prevent the criminalization of poverty,” Reggie Shuford, executive director of the ACLU of Pennsylvania, explained. “These rules were created to encourage pretrial release on non-money conditions and limit the use of pretrial detention. But in Philadelphia bail hearings, it is usually money bail or nothing. Philadelphia must do better.”
In February, the Philadelphia City Council passed a unanimous resolution calling on the district attorney Larry Krasner to end the practice of using money bail as a means of pretrial detainment. Even though the resolution had no legal weight, it highlighted the need for pretrial reform.
Everyone knows that money bail doesn’t work. It disproportionately affects black and poor people and does not keep people from fleeing. According to the Nation, 70 percent of people incarcerated in jails across the U.S. are there because they can’t afford bail.
A 2016 paper examining bail outcomes in Philly found that black defendants are given higher bail amounts and are detained, on average, 14 days longer than white defendants. The study noted that people who lived in poor black Philadelphia neighborhoods are given disproportionately higher bail amounts than people in affluent zip codes. In a Princeton study, researchers also found that white defendants are more likely to be offered bail than black people accused of a crime, even though white defendants are more likely to commit a crime while on bail.
It is possible to eliminate cash bail. In 1991, Washington, D.C., stopped the practice in most criminal cases. Instead of cash bail, the District of Columbia uses an algorithm that releases the vast majority of people who are arrested for a crime.
The Washington Post notes that:
“In the past five years, about 90 percent of defendants released were not arrested again before their cases were resolved, according to data collected by the D.C. Pretrial Services Agency. Of the roughly 10 percent who did get in trouble again, the vast majority are not rearrested for violent crimes.”
California also abolished the practice in 2018 and Citylab reports that Philadelphia could save more than $75 million by eliminating cash bail. In 2016, more than one-third of people jailed by the city were behind bars because they couldn’t afford bail.
The lawsuit’s parties include a 16-year-old who is being held on $300,000 bail who says he could not hear the judge during his video conference bail hearing. The ACLU notes that Philadelphia could easily reform its bail system with “modest changes.”