January 7, 2021
In most Pennsylvania counties, “bail authority” falls within the brief of elected Magisterial District Judges, or magistrates. The Pennsylvania Constitution states that “all prisoners shall be bailable by sufficient sureties” unless no “conditions other than imprisonment will reasonably assure the safety of any person and the community.” The Pennsylvania Rules of Criminal Procedure also instruct magistrates to consider the accused person’s ability to meet any bail conditions they might impose. Every person in Pennsylvania has a right to bail when they are charged with a crime. And the officials who determine their bail are required to consider the full context of an accused person’s (and alleged victim’s) circumstances before making a decision about what bail to set.
In practice, however, a magistrate can seek to ensure a person will be incarcerated prior to their trial by setting conditions like exorbitant cash bail that are far more than the “sufficient sureties” allowed by our Constitution for guaranteeing a “defendant’s appearance…at subsequent proceedings.” Many accused persons will find it impossible to meet these conditions, which privilege people with higher economic status, which in Allegheny County is highly correlated with race due to structural racism in the economy.
In Allegheny County, only 11% of the jail population was actually serving a sentence as of May 2020. The remaining 89% of the people incarcerated in the County Jail (ACJ) had not been convicted of the crime for which they were accused. Under the U.S. and Pennsylvania Constitutions, an accused person has the right to be presumed innocent until the state can prove their guilt. But these numbers show that the vast majority of individuals incarcerated in our jail are people who spend months punished in lockup simply for being accused of a crime. This statistic is scandalous enough on its own. In the midst of a pandemic, it is particularly cruel (and dangerous to the public our judicial system is supposed to protect) to unnecessarily detain individuals in a setting that poses a high risk of transmission, contraction, and community spread of COVID-19.
During the December 4th meeting of the Jail Oversight Board, the Honorable Kim Berkley Clark, the President Judge for Allegheny County, described a letter she had sent to all county magistrates in response to these concerns. According to Judge Clark, she asked Allegheny County magistrates to only deny bail or set cash bail as a condition of their release, for explicit reasons of public safety. This is a welcome development. But we know that Judge Clark’s request is not enough to change the disparities we know exist in our bail system. This is important because bail is by far the most consequential system for how the state decides who to incarcerate and who should go free.
An accused person can challenge their bail, but not before experiencing the often devastating consequences of incarceration. Individual magistrates may respond to Judge Clark’s request by trying to use their bail authority more responsibly and equitably. But this is because magistrates have near total discretion to set bail as they see fit. The Rules of Criminal Procedure also mandate that “whenever bail is refused, the bail authority shall state in writing or on the record the reasons for that determination.” These explanations are often minimal, and are not required for determinations of what kind of bail to set. Unfortunately, when “judges have virtually unchecked discretion, and they lack ready access” to data about the decisions other judges make in similar cases, racial, economic, and other status “discrepancies are bound to continue happening.”
Here in Allegheny County, we can’t rely on officials to solve this information gap. ACJ Warden Orlando Harper has not commented on what effect Judge Clark’s memo has had on incarceration rates in the jail. Other sources have told us that magistrates are not permitted to share the specific contents of the memo with the public.
We have produced a table detailing the bail habits of elected magistrates for the week before and after the JOB meeting last month. The table evaluates the impact of Judge Clark’s request and is only the first of such updates we plan to make available with the hope that this essential information can be used to comply with the Judge’s request, and reduce the racial and economic disparities plaguing our system for deciding who is granted bail, and under what conditions. An immediate reduction in these disparities is urgent. It is also urgent (and never more than now) for us to reduce our unnecessary, unsafe, and unworkable reliance on pretrial incarceration. We hope our reports can add to the chorus of evidence for eliminating the practice of cash bail and reducing overall pretrial detention as much as possible, by highlighting for local magistrates the alternative forms of bond and community support that some of their colleagues use to promote better outcomes for victims and people accused of crimes.
- 234 Pa. Code §§ 103, 571.
- Pa.Const. Art. 1, § 14. See also 234 Pa. Code § 520.
- 234 P. Code § 523. § 524 (comment) states that “nominal bail,” instead of cash bond, “may be used as an alternative to releasing a defendant on his or her own recognizance when it is desirable to have a surety,” and that “no condition of release, whether non-monetary or monetary, should ever be imposed for the sole purpose of ensuring that a defendant remains incarcerated until trial.” Our observation of County arraignment proceedings suggests that nominal bail is rarely considered, while cash bail is often assigned at such high amounts that the only effective purpose is pretrial incarceration. See also Ari Shapell and Nyssa Taylor, “Punishing Poverty: Cash Bail in Allegheny County,” ACLU of Pennsylvania (October 2019).
- 234 Pa. Code § 520.