New Data Reveals the Racial Disparities in Pennsylvania’s Money Bail Industry
Despite accounting for less than 12 percent of the state’s adult population, roughly 40 percent of all bail bonds were issued in cases involving a Black defendant.
In November 2013, two men were driving through Cumberland County, Pennsylvania, when State Trooper David Long pulled them over. Long wrote in an affidavit that he stopped Byron Bright and Edward Jarvis at around 11 a.m. because they were traveling too close to the vehicle in front of them. (Bright, the driver, was ultimately not cited for a traffic violation.) At some point during the traffic stop, Long asked Jarvis if he would allow him to search the car. Jarvis did not consent to the search and said he just wanted to be on his way.
Long then detained the men and called for a K-9 unit, which detected the presence of a controlled substance, according to the trooper’s affidavit and other court documents. The vehicle was towed away and searched.
When investigators searched the car, at around 2:35 that afternoon, they didn’t discover any illicit drugs. However, they did find more than 3,000 cartons of cigarettes that bore Georgia tax stamps. Long charged the men with felony possession of unstamped cigarettes.
At 8 a.m. the next day, Magisterial District Judge Mark Martin set their bail at $50,000 each. At the time, Pennsylvania capped bail premiums at 10 percent on the first $100 of the bail bond plus 5 percent on every additional $100. Bright and Jarvis, who didn’t have legal representation until weeks later, faced a choice: pay the bail or remain incarcerated while the case worked its way through the court. The men spent three days in jail before posting bail and paying the bail agent, Adam Groff, a fee of about $2,500 each.
Two years later, Judge Skip Ebert of Cumberland County’s Court of Common Pleas determined that Long conducted an illegal search of Bright and Jarvis’s vehicle. In July 2015, the charges against them were dismissed. Nevertheless, the men were not entitled to a refund of the bail fee. “It’s really predatory lending,” Nyssa Taylor, criminal justice policy counsel for the ACLU of Pennsylvania, told The Appeal. “Regardless of what happens to your case, you still owe the bond company the full amount.”
The case of Bright and Jarvis, who are Black, is emblematic of a money-bail industry in Pennsylvania that has yielded millions in fees for bail agents who disproportionately profit from people of color. In 2018, Philadelphia District Attorney Larry Krasner’s office stopped seeking money bail for certain low-level offenses, a policy change that has resulted in a 23 percent increase in defendants being released without monetary conditions and no detectable change in rates of recidivism or failure to appear in court. Yet, criminal defendants in Pennsylvania are still often at the mercy of an industry that advocates describe as exploitative and potentially unconstitutional.
The Appeal reviewed more than 18,000 criminal dockets filed in Pennsylvania in 2017, the most recent data available, which amounts to all of the cases involving surety bonds that were not expunged before this report. The state makes only some of its aggregate data freely available to the public. The Administrative Office of Pennsylvania Courts’s website is searchable only by individual case numbers. The Appeal gathered this information on Pennsylvania’s criminal legal system to provide insight and context that are not immediately discernible.
The data shows that in 2017, bail agents issued more than $359 million in surety and earned between $17 million and $53 million in fees. More than 230 agents provided surety that year, but nearly half of all bonds were issued by just 25 agents. And despite accounting for less than 12 percent of the state’s adult population, roughly 40 percent of all bail bonds were issued in cases involving a Black defendant. In 2017, more than $140 million out of the total of $359 million in surety was issued to cases with Black defendants; the industry collected somewhere between $7 million and $21 million in fees in these cases. There is no statewide collection or disclosure of bail bond contracts or fees, so greater precision is nearly impossible.
Pennsylvania rules require judges, who are elected, to take into account a defendant’s ability to pay when setting bail such that all bail amounts are to be reasonably affordable. But there is no oversight for this aspect of judicial discretion. The state’s Department of Insurance is in charge of regulating the bail bond industry to make sure fees are not excessive, but it doesn’t collect data on how much bail agents charge. The cash-bail disparity is a symptom of larger racial disparities in policing, criminal charging, setting bail, and prosecution. But such huge fees are also possible because Pennsylvania has a history of hands-off treatment for the bail bond industry.
In 2015, the industry—with assistance from former Lt. Gov. Mike Stack and former state Senator Richard Alloway—successfully lobbied to amend the state’s regulations. The new law, Act 16, was presented as a tool to “provide accountability, professionalism and transparency for the practice of providing bail for those awaiting trial.” But instead it made three major changes that were advantageous to the industry it purported to regulate.
Foremost among those changes, Act 16 eliminated the cap on the maximum fee a bail agent can charge. The limit amounted to a little more than 5 percent. The typical fee now is somewhere between 5 and 15 percent of the face value of the bond, which can easily equal thousands of dollars.
Beyond removing the limit on fees, Act 16 also made it more difficult for courts to collect money from bail agents by allowing for forfeiture only when a defendant misses a court hearing and by imposing limits on how courts can collect forfeited bail bonds. But these changes benefit the bail bond industry by delaying when forfeiture proceedings can begin, providing bail agents time to recoup losses from the courts if bail is forfeited and limiting what can trigger a forfeiture.
The bail bond industry in Pennsylvania stands in stark contrast to the successful efforts elsewhere in the country to reform and even eliminate money bail. Washington, D.C., largely eliminated money bail in 1992 and crime rates have fallen precipitously. New Jersey changed its bail system in 2017 to effectively eliminate money bail and has since experienced a drop in pretrial incarceration without an increase in crime or failures to appear for court. Alaska reformed its bail system in 2018, and the percentage of people jailed pretrial jail was cut in half without any effect on court appearances. These state efforts show that money bail can successfully be eliminated without an increase in crime or people failing to appear for court.
Advocates in Pennsylvania are working to push the state toward reform. Hayden Nelson-Major, Independence Foundation fellow at the ACLU of Pennsylvania, argues that the due process and equal protection clauses in the U.S. Constitution are supposed to also prevent people from being held in detention on unaffordable money bail. And the ACLU of Pennsylvania is suing several Municipal Court judges in Philadelphia for allegedly consistently violating state rules. “If judges were actually following the rules and Constitution, there wouldn’t be unaffordable bail set,” Nelson-Major told The Appeal. “This industry only exists because the judges aren’t following the rules or the Constitution.”