Prosecutors and Judges in Pennsylvania County Hammer Defendants in Low-Level Drug Cases

Angel Fortich was at worst a small-time drug dealer, but he faced consequences befitting a major trafficker or even a murderer: denial of bail and pretrial detention for six months. In 2017, Fortich, a 21-year-old resident of Chambersburg, Pennsylvania, was charged by prosecutors with selling roughly three stamp bags of heroin and possessing an eighth of a pound of marijuana in Franklin County, a small county of approximately 150,000 residents along the Mason-Dixon Line in central Pennsylvania.

The judge’s sole rationale for the bail denial was that Fortich faced “multiple drug charges,” according to court records. But bail is not supposed to be used as punishment. “We do not want to administer punishment before the defendant has been adjudicated guilty,” wrote Harris County District Attorney Kim Ogg in a brief supporting a lawsuit over the county’s cash bail system.

Cherise Fanno Burdeen of the Pretrial Justice Institute in Rockville, Maryland, says judges often do just that, reasoning, “‘I don’t know what’s going to happen to cases down the road, but I can get punishment now by setting a bond amount that someone can’t meet.’”

Fortich was arrested by Pennsylvania State Trooper Antwjuan Cox. A review by The Appeal  of Cox’s affidavits documenting three alleged heroin sales by Fortich between January and March 2017 reveals that the trooper wrote nearly identical affidavits in each case.  Fortich was contacted by an unnamed individual, either by phone or on Facebook, requesting the purchase of a “sum of heroin,” and then Fortich allegedly delivered drugs to the individual in view of the police. Cox did not quantify the “sum” of heroin sold by Fortich. However, in a sentencing report for the one case in which Fortich negotiated a guilty plea, it appears that the amount of heroin he dealt was 0.01 gram, the equivalent of one stamp bag.

In April 2017, Cox filed criminal charges against Fortich and requested a warrant for all three drug sales, and Chambersburg Police arrested him. Roughly an hour later, Officer Cole Baker—who noted in an affidavit of probable cause that Fortich smelled of marijuana—said his patrol vehicle still smelled of the drug. When he searched the vehicle, Baker said he found 18 baggies of marijuana in his patrol vehicle where Fortich had been seated. Baker concluded that that the drugs belonged to Fortich and charged him with felony possession with intent to deliver. Based on these charges, Magisterial District Judge Kelly Rock denied bail.

Pennsylvania law allows bail denial only in the most serious cases, like murder, or when “no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great.” But Burdeen says that far too often “we use the criminal justice process as punishment.”  

Indeed, as Pennsylvania confronts an overdose crisis which has seen the annual number of deaths surge from 10 in 2013 to 40 in 2016 in Franklin County, magisterial district judges appear to be using bail as a means to punish defendants charged with drug dealing. The Appeal reviewed all criminal cases filed in Franklin County between 2012 and 2017 and found that the median bail for people charged with possession with intent to deliver has quadrupled from $25,000 to $100,000. Reliance on cash bail has also increased in Franklin County. In 2012, cash bail was imposed in roughly half of all drug delivery cases; in 2016 and 2017, cash bail was imposed in 70 percent of such cases, The Appeal found. In Franklin County, median cash bail for possession with intent to deliver cases is now higher than bail for violent crimes such as felony aggravated assault, according to The Appeal’s review.

Drug-induced homicide cases—where people are charged with homicides if they share or sell drugs to someone who later overdoses and dies—have also risen sharply in Franklin County, from two in 2016 to 17 in 2017, according to the Administrative Office of Pennsylvania Courts.

After Fortich spent nearly six months incarcerated pretrial, charges in two of his heroin delivery cases were dropped. Fortich pleaded guilty to possession with intent to deliver in the third heroin case; in the marijuana case and he was sentenced to five years’ “intermediate punishment” which involves an initial jail sentence followed by community supervision. He was also ordered to serve two additional years of probation and pay roughly $5,000 in fines and fees. Franklin County is “probably trying hard to figure out how to manage some of these social issues” says Burdeen, but “the problem is the tools we’re using, like jail, backfire. Whatever risk label you want to give Angel, nothing about his life situation gets better by being incarcerated.”