Digital Data: What impacts a bail decision?

Initial bail decisions in Pennsylvania are usually made by magisterial district judges, who are given wide discretion in determining the type and amount of bail, as well as setting conditions of release.

For defendants, this means whether they go home or sit behind bars can be a matter of where they're arrested and which judge is setting bail.

In 2016, the average defendant in Cumberland County with monetary bail imposed was expected to pay $10,000 to remain out of jail, according to an analysis of court records conducted by The Sentinel.

However, the average defendant in neighboring Franklin County last year was expected to pay three times that, according to court records.

For defendants charged with possession with intent to deliver controlled substances, the difference between the two counties was even greater.

Median bail for defendants charged with selling drugs in Franklin County was $100,000 last year, compared to only $25,000 in Cumberland County.

The variations don’t stop at the county level.

In Cumberland County in 2016, median bail amounts for magisterial district judges ranged from $7,500 for Magisterial District Judge Anthony Adams, whose district includes the Shippensburg area, to more than $40,000 for Carlisle Magisterial District Judge Jonathan Birbeck, according The Sentinel’s analysis.

Birbeck, however, did not take office until after the middle of last year.

The analysis reviewed all of the roughly 5,000 criminal cases filed in the county last year and counted cases where the defendant was brought in front of a magisterial district judge for a preliminary arraignment.

These proceedings typically occur around the time of arrest and involve the defendant being informed of the charges, provided with information about obtaining a public defender and having a bail determination made.

Most preliminary arraignments are conducted without a defense attorney present, according Magisterial District Judge Charles Clement.

Cases in which the defendant was issued a summons, usually for lower level offenses, were not included in the analysis.

Both Magisterial District Judges Paul Fegley and Vivian Cohick, who served the full year in office in 2016, had median bail amounts of $25,000.

“Do I feel confident in the bail that I set? Yes, I do,” Cohick said. “I don’t feel that I’m excessive with my bail, because that would be wrong on my part.”

Cohick’s office is in Penn Township and her district includes Newville and several surrounding townships.

“My first thought process is I did not bring you here,” she said about dealing with the consequences of bail. “There has been a charge against you for a violation of the law. This is not just saying ‘you climbed up on the stool and I didn’t want you to climb up on the stool, so I’m going to paddle your butt.'

“A person is being charged with a violation of the law,” she said. “That takes away some of the your free to walk around and do what you want to do.”

Magisterial District Judge Mark Martin, whose district includes the Mechanicsburg area, had a median bail of $8,000 and imposed monetary bail on roughly 76 percent of defendants who came before him for an arraignment.

“I would have thought mine would be higher,” he said.

The Sentinel found no significant difference in the types of charges dealt with at arraignment that could explain the variation in bail amounts.

For example, Adams dealt with the highest concentration of assaults and drug charges at arraignment, but had the lowest median bail. Magisterial District Judge Kathryn Silcox had the lowest concentration of assaults and drug charges brought in for arraignment and a median bail double Adams’s, according to the analysis.

“Every case has to stand on its own merit,” Cohick said. “You can have two identical, but two polar opposite defendants, that have alleged to have done those same violations.”

Martin said the majority of arraignments he handles occur while he is serving as the on-call judge.

For one week every 10 weeks magisterial district judges in Cumberland County act as the on-call judge and handle all criminal cases that arise outside of normal business hours on top of their normal duties.

“I don’t think (the types of cases arraigned) are going to change significantly from one judge to another because we all have the same chance and probability of getting the same types of cases,” Martin said.

So, what factors do judges take into consideration when making a bail decision?

“There’s all kinds of factors that you consider,” Clement said. “Are they rooted in the community? How long have they lived here? What’s the seriousness of the crime? What’s the likeliness they’ll appear?”

At the time of arraignment, only a small amount of information is available.

This is includes a criminal complaint filed by law enforcement, criminal history and a bail recommendation made by law enforcement.

Judges also have an opportunity to speak with the defendant to try to find out more relevant factors.

“I like to know if they are employed,” Clement said. “I look to see if they’re employed. If not, how long have they been unemployed?”

Clement said he also tries to ascertain other information like if the defendant is from Pennsylvania or from out-of-state, if they have children and if they are married.

“Are there people in that household who are relying on that person to go to work and help with the household,” he said.

Clement, Martin, Cohick and Magisterial District Judge Richard Dougherty all said they take into account many of the same factors, but Dougherty said he places less weight on whether the defendant is a local resident when making a decision.

All four, however, said they do not have a set criterion for how they decide on bail, noting that each case is decided on its own merits.

“All those factors, you then have to balance and come up with something that isn’t punitive, but more guarantees his appearance while protecting himself and others in the community,” said Dougherty, whose office is in East Pennsboro Township. “It’s a fine balance there.”

Dougherty’s median was $10,000, the same as the county median, and he imposed monetary bail in roughly 82 percent of preliminary arraignments last year, according to court records.

While judges are not bound by it, all four judges said they give extra attention to the bail recommendation from law enforcement, most saying the police have likely had more interaction with the defendant and that safety of the victim is of paramount importance.

In Pennsylvania, charges can be sought by law enforcement without the district attorney’s approval and the prosecutor’s office is generally not involved in the preliminary arraignment.

Cumberland County has a local rule that requires approval from the district attorney’s office for all criminal charges.

A preliminary hearing to determine if there is enough evidence for the case to move forward is held within 14 days of the preliminary arraignment if the defendant is held in custody.

Bail can be modified at this hearing, which Cohick said mitigates some of the possible harmful impacts of a defendant being held for an inability to pay bail.

“How long are they going to sit in jail? That would be one of the things that might pop in my head,” she said. “But generally not so much, because I’m scheduling (a preliminary hearing) within three to 10 days. … That would bring them to their preliminary hearing quickly, so if they may not have bail, they may not have to sit long.”

Setting bail has consequences.

For a defendant, the consequence can be the difference between going home or sitting in jail.

Even a short stay in jail can cost an individual their job or even their home.

Defendants who are unable to post bail are more likely to be sentenced to jail or prison and serve longer sentences than those who are released, according to the Laura and John Arnold Foundation.

For society, releasing a person who is likely to flee means they may not come back. Releasing a person who is a threat to others means an increased chance someone could get hurt or worse.

But holding the wrong people can also cost society and local government beyond just the dollars and cents of incarceration.

Low-risk defendants held for even two to three days become roughly 40 percent more likely to commit a new crime than those held less than 24 hours, according to a study conducted by the Arnold Foundation.

An investigation by The Sentinel in June found defendants with monetary bail imposed were less likely than similar defendants without monetary bail to pay restitution and other court imposed debts.

All of this is to say there is incentive for everyone to get these decisions right at the earliest possible point.

“Everybody makes mistakes. A lot of us do dumb things, and then there’s evil-doers,” Magisterial District Judge Charles Clement said. “The first two categories, you figure out a way to be as reasonable as possible, and the evil-doer category, you’ve really got to protect the community. How you decipher who’s who isn’t always the easiest thing.”

In 2014, more than a quarter of all defendants in Cumberland County who had monetary bail imposed had their bail reduced and were later released without having to put up any cash, according to an analysis of court records conducted by The Sentinel.

More than 70 percent of those defendants returned to court as directed without issue, according to the analysis.

For some, the time between when bail was set and when they were released without monetary conditions was the only time they spent in prison.

Between 2013 and 2014, more than 120 defendants combined to spend roughly seven years in Cumberland County Prison because they could not post bail only to appear as directed when released without having to post cash and receive a non-prison sentence, according to the analysis.

A growing trend in criminal justice is the use of algorithms, known as risk assessments, to help quantify the decision-making process.

A recent study by the Arnold Foundation found a county in Ohio was able to reduce its pretrial crime, increase its court appearances while doubling the number of people released without cash bail after implementing a risk assessment tool developed by the foundation.

What risk assessments are

“It’s basically having any guideline where the characteristics of the individual, or the case, will help define what the consequences or whether person is detained,” University of Virginia Assistant Professor of Public Policy and Economics Jennifer Doleac said. “The alternative is just giving the judge … complete discretion. They kind of hear the case and whatever feels right to them is what happens.”

Pennsylvania largely operates under the latter. Aside some of the most serious offenses like criminal homicide, judges have wide discretion in choosing the type and amount of bail.

Risk assessments are generally short surveys about things like the defendant's prior criminal history, previous failure to appear for court proceedings, employment history and any substance use issues.

The questions are based on factors that have been researched and determined to be highly connected to the risk the average defendant has of failing to appear or committing a new crime.

The answers are weighted and a score correlating to a risk category is provided at the end.

For example, the Ohio Risk Assessment System Pretrial Tool uses seven questions and provides three categories of risk: low, moderate or high.

“If the only factors that go into it are things that we think directly affect someone’s likelihood of failure to appear, or committing another crime or whatever it is we are trying to avoid, than whatever the risk assessment says … should remove the kind of individual level idiosyncratic biases that individual judges would have,” Doleac said.

What they aren’t

“Ultimately we want to just know what the person’s true risk level is,” Doleac said. “Unfortunately, that is impossible.”

Risk assessments to do not eliminate all risk or provide absolute certainty of the outcome of individual cases.

In the case of the Ohio Risk Assessment, roughly 5 percent of low risk defendants will likely fail to appear for court as directed if released.

However, under the current system, roughly 17 percent of defendants in the Court of Common Pleas between 2010 and 2015 failed to appear as directed when released, according to an analysis of court records conducted by The Sentinel.

Roughly 90 defendants charged in 2015 with a misdemeanor as their highest charge combined to spend more than 2,600 days in Cumberland County Prison pretrial before being sentenced to probation, according to court records.

Doleac also said risk assessments do not necessarily eliminate racial or other biases in the system.

If minority defendants are more likely to be arrested at younger ages or have more interactions with the criminal justice system because of structural biases, a question about the age the defendant was when he or she was first arrested will not eliminate that bias.

“If you are deciding whether or not someone is a risk to fail to appear … and you know the person is unemployed and has no family, we know those things seem like they would be very plausibly causal factors to show back up in court,” Doleac said. “It’s just easier for you to take off if you don’t have any ties.

“But, we also know that black men are more likely to be unemployed, marriage rates are lower and those types of factors are going to be correlated with race,” she said. “You have to draw a line somewhere.”

For Doleac, that line is whether the factors going into the risk assessment have an independent connection to the risk of failing to appear or committing a new crime.

“What would concern me in an algorithm is if two people with identical observable characteristics, employment status, criminal history whatever — one black, one white — if they wound up with different scores,” she said. “This is an important conversation to be having.”

For many people in Pennsylvania, contact with a magisterial district judge is likely the only interaction with the judiciary they will ever have.

But, who are the magisterial district judges and what exactly do they do?

“Every day is different,” Magisterial District Judge Richard Dougherty said. “There’s a little bit of everything. We really are the minor judiciary. We are the lower of the courts in the commonwealth.”

In broad terms, magisterial district judges hear and decide lower-level civil and landlord tenant cases, they deal with all traffic citations and nontraffic summary cases and the early proceedings in nearly all criminal cases.

Civil cases cannot exceed $12,000, according to Pennsylvania state court rules.

Magisterial district judges are elected to six year terms. They are not required to be bar certified lawyers, but are required to complete mandatory training at the beginning of their tenure and continuing education throughout their term.

There are 10 magisterial district judges in Cumberland County and each handles cases for a designated geographical area ranging from Magisterial District Judge Anthony Adams on the western side of the county in Shippensburg to Dougherty, whose district includes a portion of the West Shore.

“We have a mix of cases through the week,” Dougherty said. “Traffic, nontraffic, civil, landlord tenant. No day is the same.”

For one week every 10 weeks the judges in the county rotate as on-call judge and handle all criminal cases in the county that arise outside of normal business hours.

Magisterial district judges also have the authority to issue arrest and search warrants as well as criminal summons.

Nearly all criminal cases begin at the magisterial district judge level.

Police present the judge with an affidavit of probable cause, and if appropriate, an arrest warrant or criminal summons is issued.

“For some people this is the only time they come to a court in their entire lives,” Magisterial District Judge Mark Martin said. “You want to make sure that they have faith in the system and that the system is going to be fair to them. I’m sitting in the middle of the courtroom, and I’ve got the rights of society versus the rights of the individual that I have to weigh. … I try to keep those scales in balance as best as I can.”

If a warrant is issued, the defendant is brought before the judge for a preliminary arraignment where the defendant is informed what they are charged with, provided information about applying for a public defender and bail is set.

Aside from some of the most serious offenses like murder, magisterial district judges have wide discretion in setting the type or amount of bail.

This can range from releasing the defendant without any monetary conditions to outright denying bail.

Within 21 days, 14 if the defendant is held in prison, a preliminary hearing is to determine if there is enough evidence to move the case forward to the Court of Common Pleas.

“The criminal cases, at our level, it’s a less-stringent burden of proof,” Magisterial District Judge Charles Clement said. “If you picture the blindfolded scales of justice, it’s preponderance of evidence for civil cases, but for this it’s prima facie.

“On first blush of the evidence, do we have a crime and do we likely have the perpetrator of the crime,” he said. “I don’t say ‘guilty’ or ‘not guilty.’ I say ‘there’s a prima facie case, send the case forward.’”

If there is not enough evidence to move forward, the judge can dismiss the case.

Cases involving a summary offense or certain DUI offenses can also be resolved at the preliminary hearing with the magisterial district judge imposing a penalty.

Roughly 13 percent of all criminal cases in Cumberland County are resolved at the lower court level, compared to less than 1 percent in neighboring Franklin and Perry counties, according to an analysis of court records conducted by The Sentinel.

While criminal cases can be some of the most severe in terms of the behavior that brought the person in front of the judge, they not necessarily the most difficult to decide.

“Sometimes landlord-tenant cases are more difficult than criminal cases and some civil cases are more difficult than criminal cases,” Magisterial District Judge Charles Clement said. “Sometimes a civil case is a bit more intricate. … Landlord-tenant is sometimes more difficult because of the eviction, having to put somebody out.”

Clement, Dougherty and Magisterial District Judge Mark Martin pointed to a rise in truancy cases coming across their desks as one of the more difficult aspects of the job.

“With truancy cases, there’s a lot of pressure because I want to get it right,” Martin said. “Truancy is symptom that something else is going on in that child’s life or the family’s life. … Try and peel back the onion and find out what is inhibiting that kid from going to school. There’s always a reason.”

Martin said he tries to bring together school officials, family and the student when dealing with a truancy case to better understand what is underlying the missed attendance at school.