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Philadelphia City Council’s Vote in Favor of Ending Cash Bail Bolsters Citywide Push

Activists cheer seconds after the Philadelphia City Council voted to urge a move away from money bail.
Philadelphia City Council / Youtube

Philadelphia City Council’s Vote in Favor of Ending Cash Bail Bolsters Citywide Push

In early February, the Philadelphia City Council made history: It voted unanimously in favor of ending the use of cash bail.

The resolution, passed February 1, urges the district attorney’s office and the courts “to institute internal policies that reduce reliance on cash bail” and called on the state legislature and state Supreme Court to eliminate cash bail statewide.

The Council’s vote doesn’t have legal force; the state legislature would have to act in order to end the use of cash bail in Philadelphia or anywhere else in Pennsylvania. But advocates say it is still important — and signals that more meaningful action may be on the way.

“Even if it doesn’t have legislative heft, it’s always helpful to have such vocal support from the [city] legislature,” said Julie Wertheimer, chief of staff of the Philadelphia mayor’s Office of Criminal Justice. “It just means that all three branches of government in Philadelphia are on the same page in terms of the direction we’re moving in as a city, regardless of what the state decides to do.”

Paul Heaton, academic director of the Quattrone Center for the Fair Administration of Justice at University of Pennsylvania Law School, agreed. “The City Council vote is not merely symbolic,” Heaton said in an email. “The recent vote signals some openness by the Council to consider budgetary or legislative requests from agencies that would support policies or programs that reduce cash bail, and this should encourage those interested in reform.”

Even without action from the state legislature, he said, the City Council, courts, and DA’s office can decrease the use of bail. “There is no ‘magic bullet’ solution that is going to allow the city to end cash bail,” said Heaton. “It is going to require parallel efforts across a variety of domains involving the entire criminal justice system.”

The city could provide earlier representation for detainees in the pretrial process, for instance, so attorneys could more effectively argue for release instead of bail. Judges and magistrates could use risk assessments to allow more people to be released. Perhaps most importantly, Heaton said, there should be fewer arrests in the first place, particularly for low-level offenses.

The City Council has already taken some legislative action: In 2016, it changed some low-level nuisance offenses, such as disorderly conduct or public drunkenness, into civil code violations, meaning that those who are charged are issued tickets instead of arrested. Advocates want even more offenses to be categorized as civil code violations so they result in summonses instead of arrests, effectively ending cash bail for those types of charges.

Meanwhile, municipal court has the power to formulate bail guidelines that focus on releasing people on unsecured bail — which doesn’t require arrestees to pay anything up-front to be released, only if they fail to return to court — or on non-monetary conditions, such as monitoring or drug tests. “If the president judge of the municipal court and a majority of the municipal court bench agreed on a set of guidelines making money bail an option of last resort, that could change overnight,” noted Arjun Malik, a board member of the Philadelphia Bail Fund.

“Discretion really does lie with these local actors — the courts, the district attorney’s office — to change their policies as they stand today,” added Malik.

Local actors include District Attorney Larry Krasner, who was elected in November on a pledge, among others, to end the use of cash bail. “There’s clearly vocal support from him to accelerate this work,” Wertheimer noted.

Ben Waxman, communications director for Krasner’s office, is enthusiastic about the City Council’s recent vote. “We view it very much as a positive step forward towards [the] consensus that is building around the issue,” he said. Even a few years ago, he added, bail reform wasn’t an issue that galvanized many voters; now it’s a widely discussed issue citywide.

The DA’s office plans to take action on bail reform soon, although Waxman couldn’t share specifics yet. “What we are engaged in at the moment is an internal review of current district attorney polices around how we ask for bail and for what amounts and for what types of offenses,” he said. In the next few weeks, he said, his office will have some “pretty significant announcements” coming out that will “outline a plan to move forward to turn that vision to reality.”

“Expect to see some changes,” he added.

The city’s push for bail reform got a boost in 2016, when Philadelphia was awarded a $3.5 million grant from the MacArthur Foundation to reduce the number of people held in its jails. Since then, its jail population has dropped by about 17 percent. Still, about a quarter of the people held in city jails are there because they can’t make bail. Wertheimer said it takes time to move from a grant to large-scale changes. “As you can imagine, these things, even with the funding and outside support in place, take a while to actually operationalize,” Wertheimer said.

One important change that resulted from the MacArthur grant is that if a defendant is given a bail amount of $50,000 or less for a nonviolent offense, he or she gets a review hearing five days later. According to Malik of the Philadelphia Bail Fund, about 90 percent of people who have review hearings are then released, which means they are now spending less time in jail due to an inability to afford bail. “But that’s not good enough,” he argued. “Putting them in jail for five days is incredibly destabilizing to their lives and there’s no real justification for it.”

“I don’t want to discount how much good it’s done compared to the previous status quo,” he added. “But it’s not anywhere near ending money bail. It’s not good enough.”

Ultimately, Malik hopes the City Council’s vote will help build momentum for reform. “It certainly helps put pressure on both the DA’s office and the court system, and even the state legislature, in saying, ‘Hey, Philadelphia wants to change and you need to catch up,’” he said.

Indeed, there is already pressure on the state legislature to eliminate cash bail altogether. “We’re watching to see if the state actually moves on it,” Wertheimer said. While bail reform bills have thus far been introduced but not enacted, she said, “that could change at any time.”

NYPD Agrees To New Rules Limiting Its Seizures of New Yorkers’ Property


NYPD Agrees To New Rules Limiting Its Seizures of New Yorkers’ Property

For decades, the New York Police Department has subjected people it arrests to a labyrinthine and bureaucratic process for retrieving their seized property. Often, poor New Yorkers — many without the legal assistance needed to navigate this process — give up on their property instead of trying to get it back.

In a rare disclosure to the public, the NYPD reported over $6 million in revenue in 2013 from seized cash, civil forfeiture, and property sold at auction. These documents also showed that the NYPD had a balance of more than $68 million in seized currency in any given month in 2013, meaning that it had accumulated millions over an unspecified period of time before then.

After seizing money or property, the NYPD rarely files civil forfeiture claims against individuals, but rather just lets enough time pass — 270 days — before it is considered “unclaimed,” and eventually makes its way to the NYPD’s pension fund. Currently, the NYPD has no idea how much money it has taken from New Yorkers it has arrested.

On February 9, after years of litigation, the NYPD and the Bronx district attorney finally agreed to new rules for property seizure. The settlement stemmed from a January 2016 lawsuit filed by the Bronx Defenders against the police department and the city in the Southern District of New York over what it sees as persistent theft from the city’s low-income communities.

“The settlement has far-reaching reforms that will require the NYPD and the Bronx DA to make significant changes to the way they handle these processes,” said Niji Jain, an attorney from the Bronx Defenders’ Impact Litigation Practice. “When someone is arrested, they’re supposed to get a voucher indicating what property has been taken. That wasn’t happening on a regular basis, and now as part of this settlement, the NYPD has reaffirmed their obligation to give people these vouchers and hold trainings for their officers and audits to make sure that it’s going to happen.”

The NYPD’s pattern of seizing “unclaimed” property is more common than civil forfeiture (which requires a court order) and places the onus of retrieval entirely on people who have been arrested, even if they’re never charged or convicted of a crime, by placing several bureaucratic roadblocks in their way.

“The government isn’t even affirmatively asserting a claim of civil forfeiture,” Jain said. “They’re just holding on to stuff and making it so difficult to get it back that people … give up and it gets retained permanently.”

Because of the settlement, in addition to now following through with pre-existing policies, the NYPD will make “common-sense” changes, like allowing people to use identification cards the department has seized during arrests to establish their identity as they try to retrieve their property (previously, if the NYPD had seized your wallet with your ID in it, you would have to track down a separate ID to establish your right to your own seized wallet).

One plaintiff in the lawsuit, Victor Encarnacion, was arrested in the Bronx in November 2014 (because charges against Encarnacion were dropped and the case was sealed, the Bronx Defenders, at the request of its client, would not reveal the nature of the charges). His iPhone taken by the NYPD and labeled as evidence. Six months later, after his case was dismissed by the Bronx district attorney, Encarnacion asked for his property back, but the NYPD property clerk told him he needed to get a release from the DA’s office, which repeatedly ignored his requests for one. Encarnacion only received the property release from the DA’s office after he filed the lawsuit against the NYPD, almost a year after his iPhone was first seized.

As part of the settlement, the Bronx DA has promised to release property immediately in cases that are dropped or resolved. New York City’s other district attorneys are not bound by the settlement, but the practice has been far more prevalent in the Bronx than in other boroughs.

Back in early 2014, in a series of articles for Gothamist, I first brought to light the NYPD’s arcane property retrieval system in the Bronx, reporting that was heavily referenced in an ongoing Freedom of Information lawsuit by the Bronx Defenders against the NYPD, seeking disclosure of just how much money and property the NYPD has seized during arrests.

Last fall, the New York City Council passed a law mandating that the NYPD provide annual reports on the amount of property it seizes each year. The first report is due in September 2018.

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The Biggest Winners in Trump Budget: The DEA and the War on Drugs

Scott Olson / Getty

The Biggest Winners in Trump Budget: The DEA and the War on Drugs

President Trump’s 2019 budget proposal, released Monday, requests nearly $30 billion for drug control. The majority of that funding is slated for law enforcement and an $18 billion border wall, with the purported dual purpose of stopping the flow of immigrants and illicit drugs from entering the country.

The budget requests $2.2 billion in funding for the Drug Enforcement Administration, $400 million more than two years ago. Both the immigration and DEA funding are meant to attack the supply side of illegal drug trafficking. On the demand side, the budget requests $625 million for addressing the opioid crisis in the most affected states and $50 million to expand access to the overdose reversal drug naloxone.

Public health policy experts and others closely following the deadly opioid crisis told In Justice Today that Trump’s proposed budget heavily prioritizes law enforcement drug interdiction, and other front-end interventions while vastly underfunding substance abuse treatment.

“The president’s budget proposal sends a message that his primary response to the crisis is based on the 1980s and 1990s drug war playbook,” Leo Beletsky, associate professor of law and health sciences at Northeastern University in Boston, told In Justice Today.

Dr. Daniel Ciccarone, a physician and professor at the University of California San Francisco, where he studies America’s heroin supply, described the president’s budget proposal as “sad,” and as having “misaligned priorities.”

Diane Goldstein, retired lieutenant commander of the Redondo Beach Police Department and a board member of Law Enforcement Action Partnership, said the administration’s approach is dangerous. Putting “emphasis on an already failed enforcement, whack-a-mole strategy that will only result in more death, disease and addiction,” she said.

Critics like these hoped to see more funding in the budget reserved for public health and harm reduction interventions that have demonstrated their potential to reduce the country’s skyrocketing mortality rate. Thanks to the opioid crisis, life expectancy in the United States has dropped for the past two years straight, the first decline since the 1920s flu pandemic.

DEA’s Strategy for the Opioid Crisis

The Trump budget proposal comes one week after the Drug Enforcement Administration placed every illicit fentanyl analogue — potent opioids typically sold as heroin — into the Schedule I category of the Controlled Substances Act, reserved for drugs that have no medical benefit.

Emergency scheduling makes it easier for prosecutors to prove in court that illicit analogues are illegal and dangerous.

Ismail Ali, an attorney advising the Multidisciplinary Association for Psychedelic Studies (MAPS) on policy, told In Justice Today that the DEA announcement is another chapter in the agency’s long history of misusing emergency scheduling powers.

In the mid 1980s, when MDMA (also known as Ecstasy) slowly moved out of psychotherapy and into the club scene, the DEA ignored evidence from psychiatrists about its therapeutic uses and even the advice of a DEA Administrative Law Judge Francis L. Young who urged the agency to leave it in the Schedule III category, defined as “drugs with a moderate to low potential for physical and psychological dependence.”

“Any purported evidence used to justify what goes in what schedule is not really relying on scientific data,” Ali of MAPS said. “[The] DEA can’t even begin to have a conversation around what we should actually be doing to respond to the crisis — things like supervised consumption sites and heroin-assisted treatment. The dominant societal perspective is slow to accept that we should not put the moral burden on the user.”

Dr. Ciccarone of the University of California San Francisco told In Justice Today that the move to emergency schedule appeared to be unprecedented. He said he’s never seen an entire class of drugs and all its derivatives — known and unknown — banned, which speaks to how serious a threat law enforcement views fentanyl.

But he added that efforts to disrupt drug supply could be costly without yielding desired outcomes.“Every $1 spent on harm reduction and treatment leads to multiple dollars of public health and individual benefit,” he said. “We can’t be robbing those funds to pay for things like interdiction.”

“We desperately need demand-side reductions,” Ciccarone added. “Lives are at stake.”

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