‘Unaffordable and Unethical’: PA Courts Routinely Set High Cash Bail

For years, the American Civil Liberties Union of Pennsylvania (ACLU-PA) has been working on challenging the misuse of cash bail in the state’s 67 counties, but despite a number of concerns raised over the years  noting disparities in Philadelphia and Pittsburgh, little has changed. 

Now, a new report shows that judges assigning cash bail in violation of the rules is not an issue confined to Pittsburgh or Philadelphia.  

“It’s a statewide crisis,” the ACLU-PA charges,  adding that regardless of whether or not a county is red or blue, urban or rural, cash bail practices are incarcerating droves of people. 

The ACLU of Pennsylvania obtained the data used in this report from the Administrative Office of Pennsylvania Courts (AOPC). The dataset covers the two-year period from 2016 to 2017, and consists of 383,317 cases. 

Working with a team of data scientists, the ACLU researchers looked over the information, finding that in all 67 counties, magisterial district judges (known as MDJs, or magistrates) “routinely set unaffordable cash bail for people awaiting their day in court.” 

Put in other words, this means that, “at any moment, thousands of Pennsylvanians are locked up in county jails simply because they could not afford to pay bail.” 

“This isn’t just unethical. It’s also in violation of the state Constitution,” Jessica Li, a criminal justice investigator, and advocacy and policy member of the ACLU-PA, writes regarding the report. 

Bail in Principle versus Practice

“In principle, and by law, bail is a mechanism for pretrial release,” Li explains. “But, in practice, magistrates use cash bail to jail people before trial.” 

According to the data analyzed for the report, the researchers found that magistrates routinely set bail at amounts that are too high for people to afford. And, across the state, more than half of those assigned cash bail were unable to pay — resulting in their incarceration. 

Cash bail was also the most common type of bail set in Pennsylvania, despite the fact that in practice, magistrates have other options that have been shown to be more effective than cash bail. Setting non-monetary bail, release on recognizance, or sending court date reminders are all options at their disposal, but the most devastating choice is often chosen. 

And, once thrown into the court system, the ACLU-PA researchers found that not everyone had access to the help they needed. 

Throughout most of Pennsylvania, the ACLU chapter explains, the majority of people appear at bail hearings without a lawyer to advocate on their behalf. Without understanding the system or knowing what to say in front of a judge, many people are left to fend for themselves 

The pretrial process also dictates that the defendant must post the amount of bail set in order to be released — and if they’re unable to pay, they remain incarcerated until their case is resolved, which happens in the majority of cases. 

Across the state, the ACLU researchers found that more than half of people assigned cash bail did not post it, as the average set cash bail amount of $38,433. Put in another perspective, the bail amount posted is more than half the average household income for the commonwealth. 

For people living in poverty, who might be homeless or experiencing precipitous unemployment, being forced to pay even a few hundred dollars ensures incarceration

“If the system were functioning as our constitution envisions, every person assigned money bail should be able to post it,” the report explains. “Yet as our analysis reveals, cash bail puts people in cages—rather than freeing them before trial.”

Clear Racial Disparities

The researchers also found that magistrates imposed cash bail more frequently and in higher amounts for Black people, uncovering another side of the cash bail system that disproportionately impacts people of color. 

Among Black people accused of a crime, 55.2 percent are assigned cash bail. Conversely, among white people accused of a crime, only 38.5 percent are assigned cash bail. 

Beyond assigning bail, the researchers also found that Black defendants are ordered to pay higher amounts of bail than their white counterparts — on average, $12,866 more.

This is a pattern seen in all 67 counties, the researchers uncovered. 

See Also: How Philadelphia’s ‘Bail Advocates’ Reduced Pretrial Racial Disparities

Recommendations for Reform

The ACLU-PA researchers first note that bail is meant to be a mechanism for release, but in reality, it’s used to detain people pretrial. 

“The problem lies not with the law, but with the elected officials who set bail and often failed to follow the law,” the researchers add, noting that their first recommendation is that magisterial district judges must follow the law and the guidance for pretrial detention, noting that they should encourage release on recognizance, and guarantee that monetary bail, if set, is affordable. 

Presiding judges must also exercise supervisory authority over magisterial district judges whom they oversee, as a way to keep all aspects of the system in line. 

Moreover, the researchers recommend that the Administrative Office of Pennsylvania Courts must “promote transparency by analyzing bail data on a regular basis.” Much of this recommendation also relates to the fact that raw data in understanding bail practices is largely inaccessible to the public. 

Lastly, the ACLU-PA researchers suggest that courts and jails must work together to install safeguards that guarantee no person is incarcerated only because they are unable to pay bail. 

Additional Reading: Stop Blaming Crime Increase on Bail Reform: NC Prosecutor

Andrea Cipriano is Associate Editor of The Crime Report.