Press conference to announce filing of lawsuit, March 2019. Photo credit: (Ian Pajer-Rogers/ACLU of Pennsylvania)

by Hayden Nelson-Major

Pretrial detention — the practice of incarcerating a person before they have had their day in court — has devastating consequences, even after just a day or two.

Locking a person up pretrial can mean a lost job. It can mean a missed payment on an apartment or a car that leads to an eviction or repossession. It can mean being denied access to crucial medications. It can mean missing significant events in the lives of loved ones.

Pretrial detention also negatively impacts public safety. People incarcerated pretrial are more likely to reoffend than someone who is released pretrial. It’s a vicious cycle.

But it doesn’t have to be this way.

The Pennsylvania Constitution protects the presumption of innocence and mandates that almost all people should be released pretrial. The Pennsylvania Rules of Criminal Procedure give explicit instructions for when the use of cash bail is appropriate: only after a determination has been made that an individual has the financial ability to pay the assigned bail.

The unfortunate reality is that these rules are too often ignored when a person is assigned bail.

In Philadelphia, for example, the ACLU of Pennsylvania staff and volunteers spent many months during 2018 and 2019 observing and documenting more than 2,000 bail hearings. Despite the rule mandating that cash bail only be assigned after confirming a person’s ability to pay, the average bail hearing in Philadelphia lasted less than three minutes. Many hearings lasted less than one minute.

Taking the time to give a comprehensive bail hearing and make a reasonable determination about a person’s financial standing surely takes more time and more work than one to three minutes.

With this troubling data in mind, the ACLU of Pennsylvania sent a letter to Philadelphia bail judges raising these concerns. The letter details what the ACLU of Pennsylvania staff and volunteers observed over the course of more than 2,000 bail hearings.

Last year, we filed a complaint with the state Supreme Court, on behalf of ten people, Youth Art and Self-empowerment Project, and the Philadelphia Community Bail Fund, with the law firm Arnold & Porter as co-counsel.

The complaint asks the court to enforce the rules regarding the use of cash bail, as codified in the Rules of Criminal Procedure and the Pennsylvania Constitution.

As the court considers how and if it will step in to enforce the rules regarding the use of cash bail, the ACLU of Pennsylvania and our allies will continue to look for ways to reduce mass incarceration by challenging the misuse of cash bail and pretrial detention.

Hopefully, judges and courts around the commonwealth will review their own practices regarding cash bail and ensure that they are in compliance with the Rules of Criminal Procedure and the Pennsylvania Constitution ahead of the court’s ruling.

Some Pennsylvania judges are already working to eliminate the use of cash bail in all but the most narrow of circumstances. Judges and courts across the commonwealth should do the same.

Hayden Nelson-Major is the Independence Foundation Fellow at the ACLU of Pennsylvania.

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