In 2017, Eric Sussman, a top prosecutor in Cook County, Illinois, shouted at a trial court judge for jailing Karen Padilla, who was pregnant at the time, on a non-violent offense. As a result of the judge’s decision, Padilla gave birth to her daughter in the county jail. Noting that Padilla couldn’t afford to pay restitution or fees as she was ordered, Sussman told Judge Nicholas Ford, “This is not a debtor’s prison you’re running, your honor … and you illegally sentenced her to jail.”
In Philadelphia, local prosecutors working in District Attorney Larry Krasner’s office have faced similar pushback. District attorneys and public defenders told the New York Times, “certain judges had repeatedly chastised prosecutors for being too lenient. Some judges criticized Krasner’s reforms in court, telling assistant D.A.s that they weren’t upholding the obligations of the commonwealth.”
Traditionally, prosecutors have carried great influence over whether someone is jailed before trial and other critical decisions throughout a criminal case. But these disputes in Chicago, Philadelphia, and elsewhere underscore the tension between local judges and the new wave of more progressive prosecutors. Recent criminal justice reform movements have focused on the power and discretion of sheriffs and prosecutors, and have pushed to elect candidates with decarceral policies in these roles.
Like many other states around the country, state court judges in Pennsylvania are also elected, and the state will hold judicial elections on May 18. This year, grassroots efforts in both Pittsburgh and Philadelphia are taking the power of local judges seriously. Still, not nearly enough attention is paid to the role of judges in ensuring justice and protecting liberty, or reinforcing the lack thereof. Because it is up to voters to decide what kind of judges and criminal legal system their communities should have, it is imperative to understand how the local court system works and the authority and role of the judges within it.
Local, trial-level state courts adjudicate nearly all criminal cases—from search warrants and arrest, through disposition and sentencing. The decisions that judges make at each of these stages disproportionately impact the lives of people of color and low-income individuals. Black and Latinx people, particularly those who are poor, are more likely than white people to get arrested and end up in court on criminal charges. Once there, they are detained pretrial more often and punished more severely than white people.
The lack of attention to local courts and judges is due in part to the complexity of courts and the opacity of how they work. Even for those directly involved, it can be difficult to track a criminal case through the courts, to understand which decisions are made when and by whom, and to know how judges could have used their discretion to create a different outcome. And basic aggregated and continually updated data about the number and nature of arrests, charges filed, and ultimate resolutions is often challenging to find or missing altogether.
Background and demographic information on state and local judges is likewise underreported. In fact, the only easily available demographic analysis of Pennsylvania state court judges dates back to 2002. Likewise, the process of when and how judges get selected receives little scrutiny. Yet, only by understanding the structure, power, and impact of the lower courts can we begin to address how they can better serve their communities.
The Judicial System in Pennsylvania
Pennsylvania’s judicial system is a pyramid of power and authority. At the bottom are lower courts called minor courts, followed by the courts of common pleas. These are trial courts—they apply laws to the facts in a case. Further up the pyramid are the Commonwealth Court and the Superior Court, intermediate appellate courts that largely review the decisions of trial courts. Finally, the Pennsylvania Supreme Court, the oldest appellate court in the nation, provides the highest judicial review in the state.
While appellate courts and the state supreme court review lower court decisions in criminal cases, lower court judges have the most power to directly impact the lives of individuals involved in the criminal legal system.
The Minor Courts
While their function remains the same, minor courts in Pennsylvania have two different names. Most counties call their minor courts “magisterial district courts,” presided over by magisterial district judges, or “MDJs.” But both Philadelphia and Pittsburgh call their minor courts “municipal courts.”
These minor courts are most individuals’ introduction to the court system in Pennsylvania and judges there possess significant power to determine outcomes in criminal cases. They handle many of the issues that arise at the earliest stages of criminal cases, serving as gatekeepers that determine whether criminal investigations and prosecutions move forward. They sign off on search warrants that allow police to enter someone’s home or search their property; they decide whether to grant an arrest warrant that gives police the power to arrest; and they decide whether to release someone—presumed innocent—pending trial, with or without requiring them to post bail.
They also conduct most preliminary hearings in felony cases, during which prosecutors must present evidence showing that it’s reasonable to believe that the person charged is guilty of the offense charged. Judges who take preliminary hearings seriously, and who hold prosecutors to their burden, can prevent frivolous and otherwise unfounded prosecutions from doing any further harm.
Judges in the minor courts also oversee some cases in their entirety. In Philadelphia’s Municipal Court, for instance, a municipal court judge may preside over a misdemeanor trial, in which the sentence cannot exceed five years. In other counties, magisterial court judges may preside over summary criminal offenses, such as loitering, harassment, or low-level retail theft. While these offenses are considered minor, a conviction will result in a criminal background.
In addition to hearing criminal cases, the minor courts handle evictions and landlord-tenant disputes, traffic cases, and small claims.
Despite this far-reaching power, magisterial district judges and most municipal court judges do not need a law degree or membership to the state bar; they only are required to pass a qualifying exam. In fact, only 35 percent of the state’s MDJs are members of the state’s bar.
Minor Courts Stats
- The Pittsburgh Municipal Court is staffed by 13 magisterial district judges and the Philadelphia Municipal Court has 27 municipal court judges.
- Overall, there are over 500 magisterial district judges and 29 municipal court judges in Pennsylvania.
- MDJs and municipal judges are elected to serve six-year terms.
- In 2019, there were over 250,000 cases for processing in the magisterial district courts—that’s over 500 cases per judge. By the end of the year, about 85 percent were processed, leaving just under 36,000 cases pending.
The Courts of Common Pleas
The courts of common pleas are the general trial courts of Pennsylvania, and in most cases serve as the next step in the process of criminal prosecutions, taking over cases after minor courts deal with preliminary matters. They hear all felony cases—in 2019, the majority of new cases filed in these courts involved one of three charges: driving while intoxicated, property crimes, and drug crimes. Common pleas judges determine outcomes at every stage of the trial, from reconsidering bail decisions (including those initially made in the minor courts), to assessing whether certain evidence can be used, to determining sentences, to reassessing probation and resentencing. They also set case dates, which can determine how long someone will sit in jail before trial, and act as fact-finders in non-jury trials.
At every stage, these judges possess wide discretion in the decisions they make. Beyond criminal cases, common pleas judges handle matters involving families and children.
Courts of Common Pleas Stats
- There are 439 common pleas judges organized into 60 judicial districts.
- These judges are elected to 10-year terms.
- In 2019, the Courts of Common Pleas resolved approximately 68 percent of the 242,000 cases available for processing.
What’s At Stake: How Judges Use Their Power
To further illustrate the impact and breadth of judicial discretion at different points in the system, we dig further into four areas in which judges profoundly impact people’s lives everyday: Setting bail and other pretrial release conditions, preliminary hearings, sentencing and probation, and non-criminal matters they handle, like evictions and family court.
Deciding whether to require someone to post bail before they are released (and, if so, how much) has enormous implications: Studies have shown that people who remain in jail before trial are more likely to be convicted, receive harsher sentences, face re-arrest, lose jobs and economic opportunities, and plead to a crime they did not commit.
In theory, judges are supposed to use cash bail to create an incentive for people to make their court dates, not to jail people simply because they cannot afford to buy their freedom. The Pennsylvania Rules of Criminal Procedure require judges deciding bail to consider all available information relevant to someone’s ability to appear at subsequent proceedings and comply with bail conditions, including employment history and financial status; family relationships; age, character, reputation, and mental condition; and struggles with addiction.
Under Pennsylvania law, no condition of release should be purely punitive or serve the sole purpose of detaining an individual pretrial. Ultimately, it is up to the judge to decide whether cash bail is absolutely necessary to ensure public safety and secure an individual’s return to court.
Yet time and again, magistrate judges default to egregious bail practices. Philadelphia Bail Watch, a local program established to shed light on how bail hearings work, observed more than 2000 bail hearings from 2018 to 2019 in Philadelphia’s municipal courts and found that magistrate judges consistently failed to consider alternatives to cash bail despite the legal requirement to do so; assigned cash bail to people too poor to afford it; and failed to engage in individualized hearings. One volunteer observed, “The magistrate never asked about the defendant’s ability to pay or if there were any resources for support in the case the defendant could not.” On average, bail decisions were made in three minutes, with some lasting only one minute. Another Bail Watch volunteer commented, “It was so quick! I was surprised at how little the magistrate read the facts of the case and listened to the defendant before making a decision.”
In Allegheny County, the American Civil Liberties Union of Pennsylvania analyzed two years of bail data and found large discrepancies in magistrate court judges’ rate of money bail assignments, making pretrial liberty dependent on the luck of a draw. For individuals like MAN-E, a pseudonym used in the original reporting by Pittsburgh City Paper, drawing a different magistrate judge would have saved him and his family significant financial hardship—at one point, his mother put up their house to a bail bondsman. MAN-E had been assigned bail four different times; despite never being found guilty, he had incurred over $100,000 in total bail.
Bail decisions upend entire lives and pose significant challenges to individuals with family members who need care and jobs; have health concerns and housing instability; and more. In 2019, the ACLU of Pennsylvania gathered stories of individuals impacted by magistrate judges’ bad bail practices. For example, a judge set bail at $10,000 for K.B., a 27-year-old mother of two who was arrested in Philadelphia. The judge never asked K.B. whether she could afford the $1,010—or 10 percent of the total amount of bail—necessary to secure her release, despite K.B. making clear that she was not currently working and had no other source of income. Unable to pay, K.B. remained separated from her young children.
Bail decisions disproportionately impact Black people. Recent research from Philadelphia Bail Watch showed that in 2017, Black people comprised 44 percent of the general population in Philadelphia, yet, of the 611 bail hearings observed, 60 percent of the individuals charged with crimes were Black. Bail watch volunteers noted the racial imbalance between disproportionately white judges and district attorneys and the predominately non-white individuals charged with crimes. One observer left the courtroom feeling that it was a “representation of systemic inequities and arbitrariness in the criminal justice system,” pointing out “a racist undertone to the magistrate’s notion of what/who constituted a ‘threat to the community.’”
Similarly, an Allegheny County study conducted from 2017 to 2019 showed that magistrates assigned Black people charged with crimes a 12 percent higher bail rate on average than white people charged with crimes. Another study conducted in May and June of 2020 found that judges provided every white person charged with a misdemeanor with bail options, while only Black men were denied pretrial release altogether.
Because bail decisions are so discretionary, judges matter. This means judicial elections matter. Voters have the power to elect judges who will not allow someone’s poverty or race to lead to a jail stay, and who will consider the impact of their decisions on peoples’ lives.
During preliminary hearings, judges decide whether a case is strong enough to move forward, providing an important check on overzealous or unfounded prosecutions, at least in theory. At the hearing, prosecutors present a case against the person charged. They do not need to prove the elements of the offenses beyond a reasonable doubt, but must present proof that a reasonable jury could reach a verdict for each element of the offense. This means that the judge—most often a minor court judge—has the power to determine whether the case should proceed through the criminal legal system. Often these hearings last minutes, despite carrying significant implications for those facing trial.
Minor court judges also have substantial discretion to grant continuances, which delay trials and extend the length of time an individual remains incarcerated or under surveillance, or to dismiss a case altogether. And they have discretion as to what kind of evidence they might exclude or permit during the hearing, thereby allowing or preventing the individual charged from learning more about the state’s evidence against him.
Whether or not an individual receives a fair preliminary hearing can mean the difference between freedom and incarceration. In June 2019, the Pennsylvania Innocence Project helped free John Miller, who spent 21 years in prison for a murder he did not commit. Miller’s neighbor initially told police that Miller had confessed to the murder. But during Miller’s preliminary hearing, the neighbor recanted, admitting that he lied to the police because of an unrelated disagreement he had with Miller. Despite the witness’s recantation, Miller was tried, convicted of second-degree murder, and sentenced to life in prison without the possibility of parole. Miller’s case should never have proceeded to trial, but one judge’s decision at the preliminary hearing stage landed him in jail for longer than he had been alive when arrested.
Whereas pretrial decisions like bail and preliminary hearings are largely decided by magistrate judges in the minor courts, judges in the Courts of Common Pleas have nearly boundless sentencing discretion, limited only by the maximum sentences allowed by statute. These judges decide whether someone should go to prison and for how long, or whether they should serve time on probation. As Pittsburgh local organizer Wasi Mohamed told The Appeal: Political Report, “Historically judges have used the discretionary power of the Court of Common Pleas to breed this system of mass incarceration.” As of 2018, Pennsylvania incarcerated people at a rate higher than the national average and higher than almost every other country on earth, according to data from the Prison Policy Institute.
But while the state’s incarcerated population is high, its probation population is almost double. Though probation will typically include a non-prison sentence, it almost always includes onerous conditions: curfew checks, random drug and alcohol testing, electronic monitoring, travel restrictions, and more. Pennsylvania is one of only eight states that allows probation to last the maximum sentence for the offense. This means individuals can spend their lives under supervision of the court.
Philadelphia rapper Meek Mill spent 12 years on probation after getting arrested at 19 for what ended up being a misdemeanor firearm charge. Ten years after his arrest, in 2017, his case brought nationwide attention to Pennsylvania courts’ extreme supervision practices when Judge Genece Brinkley sentenced Mill to four years in prison over technical probation violations involving dirt bike riding in New York and an alleged fight in St. Louis.
Mill’s experience is not uncommon. In Pennsylvania, more than 30,000 people are resentenced as a result of probation violations. One woman was jailed for two months for failing to report to probation because she had no childcare for her newborn baby. Twenty-two-year-old Darnell Foster’s probation was revoked for posting images to Instagram depicting guns and drugs, even though Foster said he was merely showing off by reposting photos he found on the internet. Any probation violation or a new arrest can lead to a revocation hearing, at which point a judge can resentence to prison, reset the clock on their probation, or establish new terms of probation altogether.
Even with new resentencing guidelines, probation decisions are almost entirely judge-dependent. Philadelphia Common Pleas Court Judge Rayford Means, for example, has given out more five-year probations, 10-year probations, and 15-year probations than any other judge in the region. In 2013, over half of Means’ probation sentences were six years or longer, compared to 29 percent for all other Philadelphia judges. And Philadelphia Common Pleas Court Judge Anne Marie Coyle sent about half the people whose probation she revoked from 2013 to 2018 to state prison—the highest rate of any judge in the city.
Systemic bias results in significant racial disparities, both with respect to who is receiving probation and who is punished for probation violations. In Philadelphia, one in 23 adults is under court supervision, but one in 14 people on probation is a Black man. In Allegheny County, Black people comprise 42 percent of the supervision population, while they are only 13 percent of the population in the county. People who are financially insecure are also more likely to be surveilled and arrested, leading to a greater likelihood of violating conditions of probation.
Beyond Criminal Cases
The scope of local judges’ power extends beyond criminal cases, and decisions made in other contexts, such as in eviction and family court proceedings, can destabilize lives and catalyze long-term negative consequences that make contact with the criminal legal system more likely.
In eviction courts, magistrate district and municipal judges decide whether people can stay in their homes, a decision that carries long-term consequences from houselessness, to financial hardship, to struggles obtaining housing in the future. And their power extends beyond the decisions they make on a case-by-case basis. In Philadelphia, where there are more than twice as many Black renters facing eviction as there are white renters facing eviction, the Municipal Court issued an order in April 2021 that requires landlords to apply to the city’s rental assistance program and enroll in the Eviction Diversion Program before filing an eviction for nonpayment. These diversionary programs save court resources, provide support for landlords, and protect renters from being forced to leave their homes.
In family courts, common pleas judges make decisions about school infractions—they are responsible for putting kids on probation. Tiffany Sizemore, a former colleague of mine from the Public Defender Service for Washington, D.C. and a judicial candidate running for Allegheny County’s Court of Common Pleas, told The Appeal:Political Report, “One way that courts frequently criminalize adolescents is by reflexively making this finding that, ‘Well, if you’re here and you took a dime bag of weed to school, you must need to be on probation.’” Putting kids on probation pushes them into the school-to-prison pipeline, impacting both individual lives and the criminal legal system long term.
What Can A ‘Reform’ Judge Do?
To begin with, local judges in Pennsylvania can do more to ensure justice by simply following the laws. They can spend more than three minutes deciding whether there is enough evidence to show a case should proceed. They can follow constitutionally required mandates when making decisions about bail; no one should be detained as a result of inability to pay. But local judges also have the power to do so much more. Instead of imposing strict consequences and harsh punishments, they can use their discretion to implement criminal justice reforms, including minimizing or eliminating the use of cash bail and dramatically reducing excessive prison terms—for example, by refusing to impose life without parole sentences in any case where they are not mandatory.
Across the country, voters are electing state court judges that model what reform judicial decision and policymaking looks like. In New Orleans, for example, Judge Angel Harris won her November 2020 race on a platform that scrutinized cash bail and called for alternatives to incarceration. In March 2021, Harris tossed out the wrongful armed robbery conviction of Yutico Briley on the grounds that his lawyers failed to adequately defend him. Finding that Briley’s original sentence was “outrageous, unfair and unjust,” Harris also set aside his conviction for being a felon in possession of a firearm “in the interest of justice,” allowing Briley to return home from prison. Briley spent more than eight years in prison and lost several appeals before Harris took up his case. In Pennsylvania, Allegheny County Magistrate District Judge Mik Pappas only imposed monetary bail in 3.7 percent of the 239 cases observed by the ACLU of Pennsylvania in 2018 and 2019. He also reduced eviction rates in his district by 39 percent, primarily by encouraging settlements out of court that allow tenants and landlords to mutually agree on move-out terms.
Pappas now joins “The Slate of Eight,” a group of judicial candidates running for seats on the Allegheny County Court of Common Pleas. Backed by grassroots racial justice organizations and committing to reforms like reducing monetary bail, shortening sentences, diverting drug cases, and keeping youth out of the criminal legal system, the group’s platform lays out how common pleas judges can make decisions rooted in rehabilitation, not mass incarceration. As Sizemore told The Appeal: Political Report, the race presents “an opportunity to be transformative in terms of how our courts look, how our courts feel for the public, and the types of policy reforms that can be implemented.”
In every decision they make, from bail to sentencing, local judges can consider racism experienced by so many of the people who appear before them. They can fairly and transparently address race and historical inequities in their decision-making. Former federal Judge Nancy Gertner, for instance, reduced the sentence of a Black man below what was recommended based on the reality that “his lengthy arrest record … reflected a tendency by the police to stop [B]lack motorists more often than whites” to a lower sentence than was otherwise called for.
In recent years, much necessary attention has been paid to our bloated carceral system. There are far too many people incarcerated and under supervision in Pennsylvania and across the country. Efforts to decarcerate and enact just policies have focused on legislative changes, clemency, and electing progressive prosecutors, all of which play an important role. But comprehensive reform requires also understanding the power and authority state court judges wield in the criminal legal system. As elected officials, judges serve on behalf of voters. Knowledge about how their local courts work empowers voters to shape the court’s impact on the community at the ballot box.
CORRECTION: An earlier version of this article misspelled the name of an Allegheny County Magistrate District Judge. He is Mik Pappas, not Mike Pappas.