How Philly plans to ditch cash bail and what stands in the way
September 11, 2017
Josh Glenn was just 16 when he was arrested for aggravated assault with a deadly weapon, charged as an adult and thrown in a Philadelphia jail cell. That’s where he sat for 18 months, unable to post the $2,000 bail that would have let him out of the city’s House of Correction.
Glenn’s case was ultimately dismissed and he was released, sent back into the world having spent a year-and-a-half on State Road. Today, Glenn is 29 and a criminal justice reform advocate in the city who’s fighting daily to change the system, starting with what he considers to be a broken cash bail apparatus that punishes the poor just for being poor.
“We’re holding folks in who haven’t gone to trial, and we’re treating them like they’re guilty already,” he said. “Cash bail, what it does is create more debt in poor and low-income houses … it just doesn’t work.”
For this activist, there was only one candidate for Philadelphia District Attorney when the primary rolled around last May: Larry Krasner.
Krasner, the Democratic nominee for Philadelphia district attorney and the favorite to win the November general election, branded himself as the outsider candidate — the criminal defense attorney who was going to come in as the city’s top prosecutor and turn the Office of the District Attorney upside down. In a field of seven candidates, Krasner won the primary and topped the second-place finisher by 18 points on a wave of progressive support, largely through vowing to never seek the death penalty, to address systematic mass incarceration and, yes, to reform the city’s cash bail system.
And though there’s already work being done on the inside of Philadelphia’s criminal justice system to reform how bail works — particularly for low-level, nonviolent offenders — Krasner says it hasn’t yet gone far enough.
“The ideal situation,” he said, “would be to eliminate cash bail entirely.”
No matter the campaign rhetoric, Krasner can’t do that alone. Luckily for him, he won’t have to.
Krasner and like-minded criminal justice reformists point to Washington, D.C. as the gold standard of bail reform.
The nation’s capital, which entirely eliminated money bail in the ’90s, routinely releases 90 percent of the people who have been arrested, according to data gathered by the U.S. Department of Corrections. Of those, nine in 10 didn’t commit an additional crime before their court date in 2015 and, of the ones who did, the vast majority were nonviolent offenses.
That’s not a decision a DA can unilaterally make.
Republican DA candidate Beth Grossman on eliminating cash bail
In addition to robust monitoring services and treatment options for defendants, The District also established other alternatives to incarceration, including a system of check-ins that includes a Day Reporting Center that opened in 2004. In addition to supervision, the Center offers case management, job training services, random alcohol and drug testing and medication-assisted drug treatment.
Problem is: D.C., which approved eliminating cash bail through local legislation, is not Philly. Krasner admits that implementing a system analogous to D.C.’s in Philadelphia would be a “long-term proposition” that will take time, vetting and cash.
“Unlike D.C., we know that a Republican-dominated, pro-Trump Pennsylvania legislature is not going to immediately turn around and eliminate cash as an option,” he said. “Having said that, enormous gains can be made without the passage of any legislation.”
For decades, the Philadelphia criminal justice system has operated in a pretty consistent way when it comes to bail: Some defendants are released on their own recognizance — usually with little or no conditions — and some people are not released and bail is set. For Krasner, “the question is really about the middle.”
Krasner described what he hopes would be a change in culture at the District Attorney’s Office in which prosecutors aren’t asking for “middling” amounts of bail, but rather they’re asking for one of two things: 1. Full release, with or without conditions or 2. A high bail that’s similar to no bail at all (think something like $20 million) for the most extreme of cases.
David A. Sklansky, a Stanford law professor who follows the work of progressive prosecutors around the country, said this approach can work.
“Judges often follow prosecutors’ recommendations on bail as well as on other things,” he said, “so prosecutors can do a lot just by changing their recommendations in particular cases.”
While Krasner branded himself as the criminal justice reformer during the primary election, he’s not the only game in town — not by a longshot. Since July 2015, the City of Philadelphia has slashed its daily inmate population by nearly 20 percent as part of a multi-year, $3.5 million grant from the national MacArthur Foundation, and much of that progress was made by reducing the number of inmates sitting on State Road awaiting trial.
About 6,700 inmates are currently housed in Philadelphia’s criminal justice system, and generally about a quarter of them are still awaiting trial.
Michael Bouchard, the director of pretrial services for the First Judicial District of Pennsylvania, is a member of a coalition of leaders in the city’s criminal justice community tasked with carrying out the ultimate goal of the MacArthur grant: Reducing the overall inmate population by a third.
Two of four major programs aimed specifically at reducing the pretrial population have already been implemented: Pretrial bail advocates (a program through the Defender Association) and Early Bail Review, according to Bouchard. The latter program launched in July 2016 and allows case review within five days for nonviolent defendants who have bails of $50,000 or less and no other reason to be held. Since its inception, Bouchard said, 86 percent of defendants who had an early bail review hearing were released, while 90 percent of those released appeared at their next court date.
The other two programs — a risk tool and alternatives to cash bail — that are still the works are interconnected. City officials are working with researchers at the University of Pennsylvania to develop a new risk assessment tool that they hope will allow for a scientific approach to assigning alternatives to cash bail.
“The goal with implementing a new risk tool is to reduce or eliminate cash bail,” Bouchard said. “That’s been the goal since the inception of the MacArthur program.”
There’s growing recognition that a justice system that keeps people in custody just because they’re poor is wrong.
Miriam Krinsky, executive director of Fair and Just Prosecution
Julie Wertheimer, the city’s chief of staff for criminal justice and a leader on the MacArthur undertaking, said parts of her team have met with both Krasner and Beth Grossman, a former prosecutor and the Republican nominee for district attorney, twice each to discuss the progress they’ve already made and to review how the incoming DA can fit into the structures currently in place.
“Both seem supportive of it and understand that the current DA’s office has played an active role in this,” Wertheimer said, “and that it’s our hope that whomever is the new DA will continue that.”
Grossman said in an interview that she’s “committed” to continue working with MacArthur grant decision-makers and said she’s open to eliminating cash bail for low-level, nonviolent offenders. As for eliminating cash bail entirely, Grossman said “never say never, but that’s not a decision a DA can unilaterally make.”
Krasner acknowledges that. It’s why he says if he wins in November, he’s going to have to work to win buy-in from stakeholders across the criminal justice system before he can claim success in slashing Philadelphia’s cash bail system as we know it. Fortunately for him, the city’s already heading there, and has been for years.
“We as a system are moving in this direction,” Wertheimer said of efforts to move toward eliminating cash bail. “That’s why we’ve been able to absorb leadership changes. Everyone else in the system has already signed onto this plan.”
That doesn’t mean a reform-minded district attorney won’t face pushback, according to Miriam Krinsky, a former federal prosecutor and executive director of Fair and Just Prosecution, a national network of progressive prosecutors.
“Change is never easy, and it’s particularly challenging for lawyers and judges who tend to be somewhat change-averse,” she said. “It does create challenges for newly-elected district attorneys… It’s important for them to be strategic and not presume they’re going to be able to hit a reset button overnight.”
Krasner said he believes it’s possible to win a “high level of buy-in that would result in extremely different bail results.” The challenge, he admits, will be in convincing some bail commissioners and local judges that releasing a defendant they would have slapped bail onto before isn’t a public safety concern. He said if he wins the general election in November, he’ll get to work then on that process of persuasion.
“One of our tasks will be to inform the judiciary… and to try to achieve a level of buy-in based upon science,” Krasner said, “as opposed to hunch and intuition and everything else that, frankly, has been the primary driver in the criminal justice system since Salem.”
We’re holding folks in who haven’t gone to trial, and we’re treating them like they’re guilty already.
Josh Glenn, who spent 18 months in jail before his case was dismissed
They’ll point to positive results in D.C. and, more recently, in New Jersey, which upended its criminal justice system in January by essentially ending the cash bail system statewide. Since then, the number of inmates awaiting trial dropped by 20 percent.
Krinsky said public sentiment surrounding cash bail has dramatically shifted. Save for the bail bondsman industry, criminal justice officials across the country on the left and the right are slowly moving toward reforming their own cash bail systems.
“There’s growing recognition that a justice system that keeps people in custody just because they’re poor is wrong,” she said. “It’s wrong for the individual, and it’s wrong for the community.”
Sklansky said as challenging as it can be to win hearts and minds outside the District Attorney’s Office, it can be just as difficult to gain buy-in from the inside, particularly from career prosecutors, some of whom have worked in the system for decades. He said that’s “another reason why it can be difficult for a progressive prosecutor to make good on the hope and expectations that surround his or her election.”
Though many prosecutors in Philadelphia have indicated they’re open to reform, gaining their support could prove especially problematic for Krasner, who spent the better part of his career criticizing law enforcement in the city. In a May op-ed in the Philadelphia Citizen, a group of 12 current and former assistant district attorneys urged Philadelphians to vote for anyone but Krasner, writing that “many of the ADAs that Mr. Krasner doesn’t let go will quit, rather than work for someone who has branded everyone in the office a liar before even taking the reins.”
In the end, that could simply mean there will be high turnover among the city’s 300 assistant district attorneys if Krasner takes office in January, a not-uncommon phenomenon when leadership changes. That doesn’t seem to bother Krasner, who’s indicated he’s open to overhauling management across the board.
“To the extent that [prosecutors] share values around improving things, getting better results for everyone, then there will be buy-in,” Krasner said. “And to the extent that they are opposed to the mission, maybe they are better served by being in a different line of work.”
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