Could a Pennsylvania Supreme Court decision fix ‘broken’ bail systems across the state?

A teenage mother with no criminal record was still nursing when she got into a fight and was held on $50,000 bail in the Montgomery County prison with no access to a breast pump. An impoverished elderly woman was locked up on $5,000 bail for stealing a bottle of wine. A mentally ill indigent man was jailed on $250 bail for shoplifting Oil of Olay products.

These, according to the Montgomery County public defender, are the results of a “dysfunctional” bail system plagued by many of the problems that are already the subject of litigation in Philadelphia.

“The systemic failures found in Philadelphia’s current cash bail practices are ubiquitous throughout the state,” the defender wrote in a Feb. 3 court filing. “Montgomery County is one of many in which the judicial decision-makers of minor courts frequently fail to consider alternatives to cash bail, do not take into account the accused’s ability to pay, and impose excessive bail for the purpose of ensuring pretrial incarceration.”

The strongly worded brief was written in support of a lawsuit filed last year by the ACLU of Pennsylvania against Philadelphia’s bail magistrates over what it called a "broken” and illegal system.

As a result of that lawsuit, Philadelphia’s court leadership has agreed to changes that could lead to many more people being released before trial. Now, it’s up to the state Supreme Court to decide whether those changes go far enough, in a ruling that advocates hope could have consequences far beyond Philadelphia.

But if the response in Montgomery County is any indication, a far-reaching Supreme Court ruling may trigger resistance in local courts. The defender’s brief was abruptly withdrawn eight days after it was filed. Chief Defender Dean Beer referred questions to a county spokesperson, who did not respond to questions except to say that studies cited in the brief may require clarification. The court administrator and the president judge did not return phone calls.

As bail reform inches forward in Pennsylvania, it’s playing out cautiously and quietly. Advancing through litigation rather than legislation, it bears little resemblance to sweeping changes in New Jersey and in New York, which in January became the latest state to eliminate money bail for most nonviolent offenses — and has since faced intense backlash.

In Pennsylvania, the Supreme Court noted at the outset of its review: “Any attempt to advocate for the abolition of cash bail will not be entertained.” And the special master appointed to oversee the review, Senior Judge John Cleland, declined to even use the phrase bail reform in his December report to the court, arguing the system is fundamentally sound. “Accordingly, I have described my assignment as one to suggest bail system ‘improvements,’ rather than to suggest bail system ‘reforms.’ ”

The changes Philadelphia’s First Judicial District has already agreed to make include starting with the presumption that a defendant can be released before trial; requiring that magistrates consider their ability to pay before imposing money bail; and, for the first time, ensuring that defendants have a chance to speak confidentially with a lawyer before the preliminary arraignment. (Currently, defendants appear via video monitor and are frequently warned not to speak during their bail hearings, which last on average less than three minutes, according to the ACLU.)

The changes also require a Municipal Court-level review hearing within three days for anyone who is denied bail or who is unable to post bail.

That should mean that many more people will be released before trial, Cleland noted. The Philadelphia courts have already instituted early bail review hearings for nonviolent cases in which bail was less than $100,000; more than half of people who received those hearings were released. About 90% of them reliably showed up for court.

» READ MORE: Philly DA Larry Krasner stopped seeking bail for low-level crimes. Here’s what happened next.

ACLU lawyer Nyssa Taylor said that though many of the improvements described are specific to Philadelphia, such changes are needed in most other counties.

“It’s pervasive,” she said. “Except for Allegheny and Philadelphia, the 65 other counties, there is no representation at arraignment court for the most part. In some counties, it’s actually really difficult even for private defense attorneys to actually get into arraignments.”

A growing body of research has found that pretrial incarceration correlates to higher conviction rates, longer sentences, economic destabilization, and an increased likelihood of future arrests.

In Montgomery County, where most defendants are not represented at a preliminary arraignment, it can take a month or longer for bail-modification requests to be heard. According to the defender’s since-withdrawn brief, the effect is coercive: It’s routine in the county for bail to be reduced in exchange for waiving the right to a preliminary hearing.

Peter Kratsa, a West Chester-based lawyer and president of the Pennsylvania Association of Criminal Defense Lawyers (PACDL), said a similar lack of due process is seen in counties around the state.

“A lot of times, bail is used as punishment," he said. "Bail is used to ensure incarceration prior to a determination of whether someone is actually guilty or not, which is at odds with the presumption of innocence.”

PACDL was one of more than a dozen groups to file amicus briefs supporting changes. Those included law schools, arguing for public access and improved record-keeping; former federal prosecutors, who say unfair bail practices “sow distrust” in law enforcement; and technology experts urging the court not to mandate use of a risk-assessment tool, as suggested by Cleland, the special master.

» READ MORE: Will controversy over risk assessments break Philly’s touted criminal-justice reform collaboration?

Taylor, of the ACLU, said the Supreme Court’s ruling may be broad enough to have a substantial impact across the state. But given that there are around 500 district judges setting bail in courtrooms and offices with no records, few lawyers present, and virtually no scrutiny, further litigation may be necessary.

“Almost no one is actually following the rules as they’re written,” she said. “So how do we encourage people to follow the rules is the larger question.”