There is a growing movement in criminal justice reform to re-examine how bail and pretrial detention is used.
The movement tends to move away from the use of cash bail – or having to provide money to be released from prison prior to the disposition of a case – and toward the use of things like risk assessments and pretrial services that provide supervision to people awaiting trial.
Pennsylvania may soon join that movement. As part of justice reinvestment in the state, a recommendation has been made to review how bail is handled.
“Our view is that rethinking the bail system provides significant opportunities for making it more effective, doing a better job in ensuring the integrity of the justice system and ensuring the safety of the community, at the same time solving these really intractable problems when systems use money which just results in unfair outcomes,” said Larry Schwartztol, executive director of the Harvard Law School Criminal Justice Policy Program. Harvard did not contribute to Pennsylvania’s justice reinvestment recommendations but has focused research on bail extensively.
In Pennsylvania, bail is set largely at the discretion of district judges. Typically, when a defendant is arrested, they are brought before a magisterial district judge who advises the defendant of what they have been charged with and sets bail.
The amount and bail type, ranging from being released with no money down to being held without bail, are largely at the discretion of the judge.
Bail is meant to be set at an amount that will guarantee the defendant will appear at all of his or her court proceedings and will not commit a new a crime. At the end of the court proceedings, if the defendant has appeared as required, the money is returned to the defendant.
“The thing that money bail is supposed to do is incentivize people to show up for trial,” Schwartztol said. “So, even on the most robust justification you might have for money bail, it really is just aimed to achieve this one goal ... and that is a legitimate and important goal. So, the question is, is money bail an effective way to do that?”
In June, The Sentinel reviewed the use of bail in Cumberland County and found roughly 17 percent of all cases that began in the county between 2010 and 2015 had a bench warrant issued against the defendant for failure to appear as required.
Of those nearly 3,000 cases with a bench warrant, about 18 percent included defendants who were released on some amount of money at the time the bench warrant was issued.
Schwartztol said many people who fail to appear when they are required, do so because they simply forgot their hearing, and some jurisdictions have had success implementing programs that remind defendants of upcoming proceedings.
He said being held, for even only a few days prior to the outcome of a case, can have serious negative consequences for a defendant. He said this can include loss of job, housing and even – as research is beginning to show – harsher outcomes in the defendant’s case than similar individuals who are not held.
There can be a feeling, at times, of randomness in bail amounts.
As Common Pleas Judge Thomas Placey told The Sentinel in June, one of his colleagues when he was a magisterial district judge would set bail amounts based solely on the nightly lottery numbers.
That may be an extreme and uncommon case, but judges often are required to make bail determinations with only a small amount of information about the defendants.
In 2015, the median bail amount for a black defendant was $15,000, while the median amount for white defendants was $5,000, according to an analysis of court records conducted by The Sentinel.
When comparing to similar crimes, black defendants charged with aggravated assault in Cumberland County had a median bail amount of $75,000, compared to white defendants who had a median bail amount of $50,000, according to The Sentinel analysis.
In Franklin County, bail amounts tended to be set higher, according to the analysis.
The median bail amount for all cases was more than twice that of Cumberland County in 2015, with black defendants having a median bail of $35,000 and white defendants having a median bail of $25,000, the analysis showed.
For cases involving aggravated assault charges, black defendants were expected on average to post $100,000 to be released, while white defendants had a median bail of $50,000, according to court records.
“The idea is that putting someone in jail, for even a short amount of time, can be hugely consequential,” Schwartztol said. “... The idea is that there’s really not that many people who are going to need to be held in advance of a trial. Typically, that’s going to be a pretty small number.”
Jurisdictions like Washington, D.C., have moved away from cash bail successfully, Schwartztol said, by using a combination of risk assessment tools and pretrial services.
A risk assessment tool, which is a short form that gauges a defendant’s risk to appear for trial and danger to society, is used at the beginning of court proceedings. Depending on the risk assessment outcome, defendants can be released and supervised to different degrees through probation-like pretrial services or held in jail until the outcome of their case.
Only about 10 percent of all cases fall into the latter category, and the overwhelming majority of defendants are released pretrial.
“The question of risk assessment is spurring opposition, sometimes by people who are invested in the status quo, but shows real promise in changing how pretrial works,” Schwartztol said. “But, it’s critically important that if you’re going to do it, that you do it right, and at the front end, jurisdictions are being thoughtful and deliberate about structuring risk assessment in a way that achieves the goals it’s meant to achieve.”
A primer on the bail system titled “Moving Beyond Money” is available on the Harvard Law School Criminal Justice Policy Program’s website at cjpp.law.harvard.edu.