On March 28, Tom Smith (not his real name) appeared in court after being arrested on a drug charge in Philadelphia. One might assume he would be assigned a court date and released. After all, it’s a city that, in 2017, elected Larry Krasner, who ran for district attorney on the promise of ending cash bail because of its disparate impact on low-income people. Last February, Krasner announced that his office would stop seeking bail for 25 low-level charges.
But the prosecutor in Smith’s case requested $25,000 cash bail be set, even though both the public defender representing Smith and the magistrate overseeing the courtroom agreed that he should be released, subject to a penalty of $3,700 if he failed to return to court. When the magistrate sided with the defense, the prosecutor appealed the decision to a judge the same day. This was despite the fact that Smith was unemployed and therefore unlikely to be able to afford bail. Ultimately, the judge agreed with the prosecutor and bail was set at $25,000; Smith had to come up with 10 percent of that in order to go free.
Soon after, he was bailed out by the Philadelphia Bail Fund, whose vice president, Malik Neal, watched the proceedings. “Essentially the district attorney’s office was using cash bail to detain that person,” Neal recalled.
The proceedings were hardly unusual. Last month, the Philadelphia Bail Fund released a report based on observations of this and 124 other cases heard between March 21 and April 14. The bail fund does not track the criminal charges for which bail was requested but found that the district attorney’s office is still frequently requesting high bail amounts, even in relatively low-level cases and ones in which a magistrate disagreed. The report notes several instances in which a magistrate called the district attorney’s bail request “punitive” or “ridiculous.”
And as in Smith’s case, people often couldn’t afford bail. In the vast majority of cases where cash bail was requested—93 percent—people were assigned public defenders, indicating that they were low-income enough not to be able to afford an attorney. There were also nearly a dozen cases, according to the report, where defendants were explicitly identified during the hearing as unemployed or otherwise unable to pay.
Though Krasner’s office has made it clear that bail reform is a work in progress and advocates acknowledge some improvements, staff and volunteers at organizations that work directly with defendants say they are surprised at how slowly it’s moving.
Sarah Morris, co-director of the Youth Art and Self-Empowerment Project, said she’s still seeing bail amounts as high as $2 million for young people charged as adults, mostly requested by the DA’s office and then granted by magistrates. Though all of those were for higher-level offenses that fall outside the charges Krasner’s office no longer seeks bail for, she said, they still seem out of step with Krasner’s vision. Out of 13 young people who were recently charged as adults for felonies, for example, the district attorney’s office requested a higher bail amount for 11 of them than what the magistrate ultimately set.
“We don’t believe that the courts or the prosecutors should be asking for bails that function as a detention order,” she said. “We don’t think using bail that way is consistent with the vision of ending the use of bail in Philadelphia.”
The DA’s office, in Philadelphia as elsewhere, exerts significant influence over whether someone is detained or goes free. According to the bail fund, in nearly every case in which a magistrate set bail, it was done only after the DA requested it. And magistrates never requested cash bail in the cases where the DA recommended that defendants be released or issued a bond allowing them to go free without having to pay anything up front.
“It’s not as if Krasner doesn’t have options here,” Neal said. “I think it’s a matter of him having the political courage to do it.”
In response, Krasner’s office referenced strides it has made in bail reform. The office eliminated the use of bail for many low-level charges, including DUIs, drug possession, and theft, which led to a 23 percent increase in people being released without posting bail. “We’re happy that the recommendations we’ve made around bail are being followed, that’s a positive step,” said Ben Waxman, who was communications director for the office until he left this month. As for the bail fund report, he said: “It indicates there’s room to move forward and do more.”
The report has “caused a good internal discussion” in Krasner’s office, Waxman said. “I don’t think there’s anything we do here at the DA’s office that we can’t figure out how to do better.”
Advocates say it’s hard to know whether Krasner’s office is adhering to its own reforms. “It’s extremely difficult to [track] because there are a huge number of carve-outs and exceptions to the policy,” noted Cal Barnett-Mayotte, a coordinator at the Philadelphia Bail Fund. For example, Krasner’s office said it would still seek bail for drug possession charges when a case involved a certain amount of every narcotic or based on specific factors in a defendant’s history.
It’s possible that in all of the cases in which the DA’s office requested bail, the charges fell within the categories that are exempted. “But that just goes to show the limited nature of the policy,” Barnett-Mayotte argued. “It should not have all of these loopholes.”
The fact that the rules were implemented as a first phase of bail reform, he noted, implied that there would be more. But nothing has been announced since February 2018. Though people often assume Krasner has already ended cash bail, he said, that goal clearly has yet to be achieved. “It seems like the district attorney’s office has grown complacent in the matter of bail,” Barnett-Mayotte said.
Waxman said Krasner’s office has since been working on policy changes in other areas, such as sentencing, probation and parole, and immigration. “We see looking at cash bail and reforming the bail system as one piece of a very, very large puzzle of things we are trying to address and trying to change,” he said. He said that evaluating phase one of bail reform is “high on the list” but couldn’t offer a timeline for when there may be additional bail reforms.
Advocates say that if Krasner truly wants to see the end of cash bail in Philadelphia, there is much more he could do immediately—without action from the magistrates, legislature, or courts—to reduce its use, such as requesting lower bail amounts or no bail at all. And they worry about the rhetoric he uses in the meantime.
When Krasner was asked in December why, according to the Pennsylvania ACLU, over 40 percent of defendants are still held on cash bail, he responded that he didn’t want “people who are shooting people,” “people charged with sex offenses,” “people who are arrested with a firearm and they have a prior felony,” and “high-level white-collar criminals” to be able to get out of jail without having to pay bail.
Waxman reiterated this explanation, noting that Krasner is against holding people pretrial simply because they’re poor, but that there are “times when people need to be held pretrial because of clear issues of public safety.” There are other cases, he said, when the DA’s office believes a defendant should be held because he’s a flight risk or because he has involvement in another case involving more serious offenses. “We’re dealing with an imperfect system … while at the same time doing what we believe is required to protect public safety,” he said. “We do believe there are times when it’s a public safety requirement to ask for cash bail.”
Keir Bradford-Grey, chief defender of the Philadelphia Defenders Association sees the public safety argument as a thin one. “Most of the people we see coming [through] this court are not extremely violent or dangerous,” she said. Most are also low-income, she added, and often don’t have the resources to leave their neighborhoods to avoid a court date, let alone flee the city.
Phase one of Krasner’s reforms proved, at least initially, that far more people could be released without increasing recidivism or flight risk. “We used to assume that those people couldn’t be released safely, and that’s why we assigned cash bail in theory,” said Paul Heaton, a senior fellow at the University of Pennsylvania Law School. If “we released them [and] nothing happens, maybe we need to go further up the chain,” expanding the original reforms to more charges.
The Defender Association of Philadelphia recently put forward recommendations to significantly overhaul the entire pretrial system. Under its plan, people arrested would be given the presumption of release, and if the DA’s office wanted to detain someone, it would have to file a motion. That would trigger a hearing over whether someone should be released, with the DA presenting evidence of flight risk or danger and giving the defendant a chance to work with legal representation and appear before a judge. To allow time and resources for those hearings, police would issue summonses for most misdemeanor charges, rather than arresting and detaining people, so fewer people would enter the system in the first place.
“We don’t want just a few policy [changes] to guide us through a fraction of some of our clients’ charges,” Bradford-Grey said. “We really want an entire restructuring.”
When asked if Krasner supports the reform plan, Jane Roh, the office’s new communications director, said, “He does support their proposed pretrial reforms, with the caveat that certain details should be worked out in a collaborative manner over time.”
Heaton credits Krasner for implementing the reforms he has in the way he has, but also sees room for more action. “The real question is, how much further is he willing to push it?” he said. “Is this where it stops, or do we accelerate the pace of change?”