New ACLU-PA Report Shows Courts Breaking the Law With Cash Bail Orders

by Jessica Li

The ACLU of Pennsylvania has been working on challenging the misuse of cash bail for years. In 2018, we sent a letter to Philadelphia courts, raising a number of concerns based on court observations of more than 2000 bail hearings and urging them to follow the rules when setting cash bail. In 2019, when it became clear that nothing had changed, we joined a coalition of advocates and filed a lawsuit. That same year, we released a report titled Punishing Poverty, which detailed how, despite slight progress, judges in Allegheny County still set cash bail in more than a quarter of cases.

Now, a new report shows that judges assigning cash bail in violation of the rules is not an issue confined to Pittsburgh or Philadelphia. It’s a statewide crisis.

In partnership with a team of incredible data scientists, we examined statewide bail practices based on data from 2016 and 2017. Broken Rules: How Pennsylvania Courts Use Cash Bail to Incarcerate People Before Trial, our new research report, finds that across the commonwealth, in counties red and blue, urban and rural, there is an ongoing crisis that keeps far too many Pennsylvanians wrongfully incarcerated. In all 67 counties, magisterial district judges (also known as MDJs or magistrates) routinely set unaffordable cash bail for people awaiting their day in court. This practice means that, at any moment, thousands of Pennsylvanians are locked up in county jails simply because they could not afford to pay bail.

This isn’t just unethical. It’s also in violation of the state Constitution.

In principle, and by law, bail is a mechanism for pretrial release. But, in practice, magistrates use cash bail to jail people before trial.

According to the data we reviewed, magistrates routinely set bail in amounts too high for people to afford. Across the state, more than half of those assigned cash bail were unable to pay and were incarcerated as a result.

We also found that cash bail was the most common type of bail set in Pennsylvania. Magistrates have other options, like setting non-monetary bail, release on recognizance, or sending court date reminders — options that have been shown to work just as effectively, and even more so, than cash bail. But time and again, magistrates choose to set cash bail, driving up rates of pretrial incarceration. And pretrial detention can quickly devastate a person’s life.

After just a few days in jail, a person can lose their job, access to necessary medical care, custody of their children, and even their homes. Studies have also found that pretrial detention leads to a higher likelihood of conviction and lengthier sentences.

Like every element of the criminal legal system, the data further reveals that Black Pennsylvanians are disproportionately impacted by the widespread use of cash bail. Among Black people accused of a crime, 55.2% are assigned cash bail. Among white people accused of a crime, 38.5% are assigned cash bail. Black defendants are also assigned higher amounts of bail than their white counterparts — on average, $12,866 more. This statewide pattern persists in each of Pennsylvania’s 67 counties.

If the cash bail system were functioning as it should — as it was envisioned in the Constitution — every single person represented in the data we reviewed should have posted bail. Yet as our analysis reveals, cash bail functions to keep people in jail — not free them before trial.

In Pennsylvania, the problem is not with the law but with its practice. Magistrates regularly flout the law when setting bail, according to our data. The Pennsylvania Constitution and Rules of Criminal Procedure protect the fundamental right to pretrial liberty. Magistrates break these rules when they assign cash bail in cases where a person is neither a flight risk nor a danger to themselves or others, or if they fail to provide a careful, individualized assessment to the person they are assigning cash bail.

Our report provides four recommendations for reform.

First, magistrates must follow the law, plain and simple, and stop assigning unaffordable cash bail.

Second, the Administrative Office of Pennsylvania Courts must promote transparency by analyzing bail data on a regular basis.

Third, president judges must exercise supervisory authority over the magistrates whom they oversee.

Fourth, courts and jails must work together to install safeguards that guarantee no person is incarcerated only because they are unable to pay bail.

At the end of the day, magistrates are accountable to all of us. They are elected officials and can be voted in or out depending on their performance. It is incumbent on each of us as Pennsylvania voters to educate ourselves about our local magistrates and their performance on issues like assigning cash bail and then make our voices heard by voting when the time comes.

We hope this report will be a start in giving voters the information they need to assess the performance of Pennsylvania magistrates and to hold them accountable.

Read the full report: Broken Rules: How Pennsylvania Courts Use Cash Bail to Incarcerate People Before Trial.

Jessica Li is the criminal justice investigator at the ACLU of Pennsylvania.