Bail reform advocates say pretrial incarceration carries with it a cascading effect on defendant
By Riley Yates and Peter Hall
The (Allentown) Morning Call
ALLENTOWN, Pa. (AP) — John Z. Murphy Jr. spent 42 days in Northampton County Jail on misdemeanor charges because he couldn’t come up with $800 in bail money.
In fact, the 34-year-old Allentown man would still be in prison awaiting his unresolved case, if not for an initiative the county court recently implemented.
Frustrated that too many defendants were languishing behind bars for lack of bail, Northampton County in late April launched a long-planned effort to make it easier for people charged with minor crimes to stay out of jail before trial.
It seeks to avoid incarcerations like that of Murphy, who was freed in June by a judge who granted him unsecured bail on his simple assault case, allowing him to be released without having to post any money.
The push is part of a national conversation around bail reform, as advocates question whether it is appropriate to imprison defendants before they have been convicted merely because they lack financial means.
“We know that when you have a system that depends on money, then the only thing you know about the people who are in jail is that they’re poor,” said Nancy Fishman, project director at the Vera Institute of Justice, a nonprofit that seeks to improve fairness in the courts.
Fishman and other reformers say pretrial incarceration has cascading effects on defendants, causing them to lose their jobs and housing, and breaking up their families. People jailed before trial are more likely to plead guilty and receive harsher sentences. And those who scrape together the money to post bail often do so by borrowing from relatives and friends, creating additional financial stress.
Because of its often stringent approach to bail, Pennsylvania houses more pre-trial inmates than all but a handful of states. Many jurisdictions are examining whether cash needs to be part of the equation — or whether the decision should be based on risk, and not wherewithal.
New Jersey all but eliminated cash bail last year, replacing it with a system in which judges jail only those defendants who are deemed to be a significant flight risk or a danger to commit more crimes. In Pennsylvania, Allegheny County has championed the use of such risk assessments. In Philadelphia, District Attorney Larry Krasner announced in February that his office would no longer seek monetary bails for a slew of misdemeanors and nonviolent felonies.
“The whole philosophy behind (reform) is that our traditional system in the United States of requiring cash bail is unfair to those who are indigent, who are living on the margins,” said Judge Stephen Baratta, who spearheaded Northampton County’s initiative during his recently ended tenure as the court’s president judge. “The bail reform movement is to make it more fair.”
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Pushback from police
Bail traditionally serves two purposes: to ensure defendants show up for their court hearings, and to protect society from those whose alleged crimes make them a danger to the public.
Law enforcement is often lukewarm to efforts to release more defendants before trial, fearing they will go on to commit more crimes and noting that even the best risk assessments are not flawless.
Any meaningful bail reform must contain adequate safeguards to keep the public protected, said Richard Long, the executive director of the Pennsylvania District Attorneys Association.
“Primarily bail is there to ensure someone appears for court, but there’s obviously a public safety component as well,” Long said. “Like all of these criminal justice reforms, it has got to be done responsibly.”
By many accounts, Pennsylvania lags behind other states in its approach to bail. It was given a D grade last year from the Pretrial Justice Institute, a nonprofit that supports alternatives to cash bail. The Vera Institute’s study of trends in incarceration shows that in 2015, Pennsylvania had the ninth highest rate of pretrial incarceration in the United States, with about 270 people in jail for every 100,000 residents. Among Pennsylvania’s 67 counties, Lehigh had the third-highest rate of pretrial incarceration behind only Pike County and Philadelphia, according to the study.
An analysis of Pennsylvania court data by the Council of State Governments Justice Center found 36 percent of defendants were given monetary bail in 2015. Northampton and Lehigh were among the counties with the highest rates of cash bail for both felonies and misdemeanors.
The state also has faced criticism from federal courts, with a 2016 Third U.S. Circuit Court of Appeals opinion calling inequitable bail “a flaw in our system of justice” and a “threat to equal justice under the law.”
The court’s vitriol was spurred by the fate of Joseph Curry of Boyertown, who was arrested in November 2012 for shoplifting $130 of goods from Walmart in Lower Macungie Township, though he insisted it was a case of mistaken identity.
District Judge Jacob Hammond set bail at $20,000, which Curry was unable to post. He spent 88 days in Lehigh County Jail before he pleaded no contest to the charges, receiving two years of probation.
In a civil rights lawsuit, Curry’s attorney said his client only entered into the plea — in which he accepted a conviction without admitting guilt — because he wanted to return to his family. While jailed, Curry missed the birth of his only child and lost his job, putting his home and car in jeopardy, according to court records.
Curry charged he was the victim of malicious prosecution by police who failed to investigate whether Walmart’s claim that he shoplifted was valid. But given his conviction, his suit was dismissed, though the Third Circuit said it did so reluctantly. The court used the opinion to hold forth on the hazards of cash bail.
“It seems anomalous that in our system of justice, the access to wealth is what often determines whether a defendant is freed or must stay in jail,” Circuit Judge Michael Chagares wrote. “Further, those unable to pay who remain in jail may not have the ‘luxury’ of awaiting a trial on the merits of their charges; they are often forced to accept a plea deal to leave the jail environment and be freed.”
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Lives scarred, livelihoods lost
In some local cases where people have been held on charges that were eventually dismissed, the consequences were costly to taxpayers.
Last year, state police paid $150,000 to Wilfredo Ramos of Brooklyn, N.Y., to settle his federal lawsuit alleging he was wrongly held in Lehigh County Jail on charges of driving under the influence of drugs. Ramos’ $10,000 bail kept him in jail for five months while state police tested his blood for drugs three times. Ultimately, the charges were dismissed because there was no evidence.
While imprisoned, Ramos lost his job and his apartment. His vehicle, unclaimed from an impound lot, was sold at auction, his suit claimed.
A 2015 federal lawsuit made similar claims on behalf of Alexander Bernstein, a New York man jailed in Lehigh County for nearly a month under $25,000 bail on drug charges after a stop on Interstate 78.
Troopers alleged they found cocaine in the car’s trunk, but later lab tests concluded it was only homemade soap. Bernstein settled his claims against state police for $195,000 last year. During his imprisonment, Bernstein also lost his job, apartment and belongings, his lawsuit claimed.
Nationwide, more than 60 percent of jail inmates are being held because they lack bail, according to the federal Bureau of Justice Statistics. That’s roughly 459,000 people.
Northampton County’s new approach hopes to reduce its jail population by 10 to 20 percent, said Baratta, the judge. That represents 60 to 120 prisoners, he said, at an estimated daily cost of about $110 a day each.
Baratta said judges still will be tough on serious felonies, and will treat them as they always have, with typical monetary bails. The focus is on cases involving relatively minor charges that would likely lead to probation or a short stint in jail if they end in conviction, he said.
The goal is to avoid imprisoning those defendants before trial altogether — even if for only for a few days as they arrange money for bail — while keeping them under the county’s supervision and getting them referred to drug or mental-health treatment if needed.
To make it happen, before those defendants are arraigned, they undergo a risk assessment by a pretrial services officer who runs their criminal record, their history of appearing for court, and maps out their background: age, family ties and employment. The officer rates each person’s risk, and comes up with a bail recommendation.
That contrasts with how Northampton County used to do things. Defendants were brought into court for the first time with little information to help the judge set bail. Decisions were based on what the arresting officer might know, or what the defendant volunteered.
Baratta said the initiative comes with the realization that even short stints in prison often do more harm than good. He noted that under the status quo, the United States has achieved the highest incarceration rate in the world.
“That’s nothing to be proud of,” Baratta said. “You can’t say we’ve made our streets safer with our current system.”
Northampton County is one of a growing number of counties to recognize the value of bail reform, according to Nicolle Schnovel, president of the Pennsylvania Pretrial Services Association.
A 2015 survey by the organization found that at least 25 of the state’s counties had no pretrial services programs. Just a dozen counties reported using risk assessments.
Among those was Lehigh County, which has been using them for 20 to 30 years, said Maureen McManus, who directs the county’s pretrial services.
Someone accused of a minor drug crime will often be connected with treatment instead of being jailed, she said. Likewise someone with a mental health problem, she said.
“We started back in the ‘80s, looking at prison population reviews,” McManus said. “We’ve been doing this for a very, very long time.”
In scrutinizing bail in Pennsylvania, the Council of State Governments Justice Center found that amounts varied widely from county by county, even among neighbors.
In Lehigh County, a typical misdemeanor bail was $5,000, while in Northampton County, it was $1,000, though defendants are often required only to post 10 percent to secure their release.
The statistics were no surprise to McManus.
“I think we’re doing a good job in Lehigh County, but in Lehigh County, we set high bails,” she said.
Even for those lucky enough to afford bail, posting it can be expensive. Lehigh County Chief Public Defender Kimberly Makoul said bail amounts that seem insignificant to many people are astronomical to her office’s clientele — even if just a few hundred dollars.
Given the court fees that accompany bail, some of the money is never returned, regardless of whether the accused makes all of his or her court dates — and even if there’s ultimately an acquittal.
For someone posting $10,000 in cash in Northampton County, court fees total $180. For someone posting a bond for that amount, the fees total $200. And that’s not counting the private fees that someone using a bail bond company must pay to the bondsman.
Lehigh County’s fees reach $248 for someone posting $10,000 cash, and $300 for someone relying on a bond.
There’s no evidence that monetary bail makes people more likely to show up in court, Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute, said. Steps as simple as sending low-level offenders text messages to remind them of court dates can improve appearance rates. For higher-risk offenders, electronic monitoring, regular check-ins with court officials, and orders to stay away from victims are effective alternatives to bail, she said.
“Even the people who are considered most risky have a 50-50 chance of appearing, and in baseball you often consider that a winning season,” Burdeen said.
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Problems with no bail
In places such as New Jersey, where the presumption has turned toward release without bail, 85 to 90 percent of defendants are released while their cases are pending. Prosecutors who believe a defendant is a public safety or flight risk must request a detention hearing to prove there is nothing that would alleviate the risk.
Scott Wilhelm, a Phillipsburg defense attorney who practices in New Jersey and Pennsylvania, cautioned that while eliminating cash bail has been largely positive in the Garden State, it isn’t a panacea.
For those detained due to risk, there’s no amount of money they can come up with to change that, Wilhelm noted.
That can pose its own challenges, especially in domestic violence cases where prosecutors object to release, fearing the worst, he said.
“They’re being held maybe for a period of time that’s longer than their ultimate punishment would be,” Wilhelm said.
New Jersey’s nonmonetary bail system survived a challenge when the Third Circuit ruled July 9 that there is no federal constitutional right to monetary bail. The court noted New Jersey’s aim in enacting the reforms.
“Monetary bail often deprived presumptively innocent defendants of their pretrial liberty, a result that surely cannot be fundamental to preserving ordered liberty,” Circuit Judge Thomas Ambro wrote.
There’s little research to back up the effectiveness of risk assessment tools, said George Mason University law professor Megan Stevenson. Communities that undertake them must determine what their goals are and how much of a trade-off they’re willing to accept to reduce the number of people in jail.
“You’re not going to get dramatically lower incarceration rates without some increase in failure to appear,” Stevenson said.
In Northampton County, District Attorney John Morganelli’s office wasn’t involved in planning the bail initiative. But Morganelli said he is confident judges will recognize which cases are serious and which defendants need to be incarcerated.
Morganelli said he was not interested in spearheading changes as Philadelphia prosecutors did, saying he doesn’t believe that is his role.
“You can’t have a defense-based lawyer in the DA’s office,” Morganelli said. “In my view, we need to protect our community from violent crime. We need to protect our community from crime.”
In the case of Murphy, the man jailed for 42 days in Easton, prosecutors objected to his release.
Murphy is charged in North Catasauqua with misdemeanors of simple assault and terroristic threats for an angry confrontation April 19, in which police said he threw a soda bottle containing urine at his girlfriend’s mother, hitting her in the face.
Murphy’s bail was initially set at $8,000, with $800 needed to secure his release. But Murphy’s public defender, Susan Hutnik, said her client couldn’t afford that amount, though he held a full-time job as a house painter.
In a handwritten petition, Murphy said he has two children to support, verifiable employment and reliable transportation.
“I am not a flight risk,” wrote Murphy, who has a lengthy criminal record, albeit largely for marijuana possession.
On June 13, Murphy’s bail was reduced by Baratta, who happened to be sitting in bail court that day. Baratta noted the dilemma: For lack of bail, Murphy risked spending the summer in jail as his case wound its way through the court process.
Since being released, Murphy appeared for court without problems, according to Hutnik. He waived his preliminary hearing June 26, and Hutnik said she has worked out a plea agreement.
On Sept. 13, Murphy will be arraigned at the courthouse in Easton, a time when many defendants resolve their cases. If he hadn’t been able to post bail, he would have been in jail for 134 days by then.
