While not on the front page of media sites, bail reform is an integral part in the movement to tackle the penal state. After decades of punitive rhetoric justifying racially oppressive penal policies, criminal justice reform is being embraced at the federal, state, and local levels. In December 2018, Congress, with backing from the Trump White House, passed the “First Step Act,” which modestly curbed mandatory minimums, retroactively eased crack cocaine sentences, and incentivized incarcerated individuals to partake in rehabilitative programs in exchange for early release. State attorneys general throughout the country have retroactively expunged nonviolent drug records and city governments have passed ordinances prioritizing cannabis licenses for individuals most affected by the War on Drugs. These reforms mark drastic, positive changes from the “tough on crime” policies perpetuated in the latter part of the twentieth century. A bail reform movement is also growing throughout the United States, but garnering less attention from media than other legal system reforms. In Pennsylvania, institutional actors such as the governor and statehouse have failed to implement any change in the bail system. Grassroot efforts, buttressed by public minded laweyers, are needed to overthrow the bail system, with the goal of ending cash bail in the Commonwealth.

Bail traditionally served the purpose of ensuring that defendants showed up to legal proceedings. To ensure return, early courts would have a defendant swear an oath in front of neighbors or would place the individual’s property in the custody of a local official that would be returned at appearance. As the United States grew, cash bail replaced the earlier approaches as it provided an anonymous, functional guarantee that a defendant would return to court—unless, of course, the defendant could not afford to pay. Not paying meant detention – regardless of innocence or guilt. It now means that poor people lose their rights and liberties, especially in Pennsylvania.

The bail hearing is a pretrial stage in criminal procedure where a judge looks at various factors to determine whether or not the defendant—if released—constitutes a risk to the community and if the defendant is likely to return for trial. In Pennsylvania, judges can choose between five bail options including cash bail. The imposition of cash bail means that the defendant must immediately present payment to the court, or face pretrial detention. Per statutory law, cash bail can only be imposed when no other bail option can ensure that the defendant returns to court, and also requires judges to determine the reasonableness of the amount after examining the financial situation of the defendant. These high procedural bars are designed to protect indigent defendants; however, these protections have failed people of color and people experiencing poverty. Judicial discretion to set bail is completely unregulated in Pennsylvania, which can lead to racial disparities: “Despite accounting for less than 12 percent of the state’s adult population, roughly 40 percent of all bail bonds were issued in cases involving a Black defendant.”

In 2015, Pennsylvania had the ninth highest rate of pretrial incarceration in the United States, jailing two hundred seventy people per every one hundred thousand residents. Detention before trial is not a benign act. It severely harms indigent people by disrupting employment, risking default on loans, and separating families. These harms can also be physical— “[n]ationwide, three-quarters of jail deaths occur among people in pretrial detention, and more than one-third of deaths occur within seven days of incarceration. Nationally, 82 percent of all jail suicides occur among people in “unconvicted” status.”

Joseph Curry of Lehigh County spent eighty-eight days in jail after a judge set his bail at $20,000. His crime? Allegedly shoplifting $130 worth of goods from a local Walmart. After his ordeal, he pleaded no contest to the criminal charge, despite maintaining his innocence, because he missed his family—while in jail, he lost his job and missed the birth of his only child. The Third Circuit, in a case brought by Curry for malicious prosecution, summed up this gross injustice: “It seems anomalous that in our system of justice, the access to wealth is what often determines whether a defendant is freed or must stay in jail. Curry v. Yachera, 835 F.3d 373, 374 (3d Cir. 2016), Further, those unable to pay who remain in jail may not have the “luxury” of awaiting a trial on the merits of their charges; they are often forced to accept a plea deal to leave the jail environment and be freed.” Id. at 376. However, the Court punted on reforming bail itself, stating that state legislatures and localities are responsible for reforming the entrenched system. Id. at 377.

Heeding the Court’s challenge, different actors in the Commonwealth have undertaken efforts to reform the state’s bail system. However, these efforts differ vastly in scope, with institutional actors advocating for mere tweaks and others promoting total abolition of cash bail. The state’s governor, Tom Wolf (D), expressed an interest to modify the existing system to make it more “reasonable,” yet no bail legislature has reached the Governor’s Mansion. State senator, Daylin Leach (D) has proposed legislation that would retain bail but that would eliminate pre-trial detention for failure to make bail, yet it seems to have died in the Pennsylvania Senate Judiciary Committee. The Supreme Court of Pennsylvania has ordered a special master to review the system and recommend changes, yet it prefaced its order by stating: “[a]ny attempt to advocate for the abolition of cash bail will not be entertained.” On February 26, 2020, following an amicus filing that spoke to Montgomery County’s inequitable use of cash bail, County Commissioners fired the County’s top two public defenders without explanation. The hesitation of the state’s executive, legislative, and judicial branches speaks to the political power of the cash bail lobby over institutional actors in Pennsylvania. Successful, systematic bail reform in the Commonwealth of Pennsylvania will have to come from non-institutional actors.

While the path to reform will be arduous, it is necessary. The ACLU of PA recently published a report titled, Punishing Poverty: Cash Bail in Allegheny County. In the report, the ACLU demonstrates disturbing racial patterns of how bail is set in Allegheny County through data collected over a period of two years. Despite making up thirteen percent of the local population, black people composed sixty percent of the local jail population. Black defendants are also being assigned higher rates of bail as compared to white defendants for similar offenses. The racial disparity problem is not exclusive to rural counties like Allegheny. In Philadelphia, similar trends apply to the bail system. The best bath forward to curb racial and financial injustice in the pretrial stage is by dismantling the cash bail system like in New Jersey. Not only would eliminating cash bail in Pennsylvania help mitigate against the harm of systematic racism, it would also help save counties money from detention commitments that can then be invested in communities and education. In a report by the Philadelphia Office of the Controller, it was found that by eliminating cash bail, the city could save over $75 million annually by forgoing direct and indirect costs of incarceration. However, these dollar signs and percentages cannot explain the immense harm that detention causes for indigent individuals like Joseph Curry. Community groups, such as the Philadelphia Community Bail Fund, must be empowered to lead the charge for system change, with support from organizations such as the ACLU battling in the courts. These partnerships, along with pressure on political leaders, will hopefully help tear down yet another pillar of the criminal injustice system.