Philly criminal justice officials in ‘damage control’ mode following cash bail report

City Controller Alan Butkovitz says ending cash bail could save $75M a year. Criminal justice leaders claim his data is flawed.

Left: Julie Wertheimer, Philadelphia's chief of staff for criminal justice. Right: City Controller Alan Butkovitz.

Left: Julie Wertheimer, Philadelphia's chief of staff for criminal justice. Right: City Controller Alan Butkovitz.

Left: Screenshot via YouTube. Right: Kaylee Tornay/Billy Penn
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A coalition of Philadelphia criminal justice officials is slamming the lame-duck city controller, claiming his office’s recent report on abolishing the city’s cash bail system is riddled with errors.

City Controller Alan Butkovitz says that’s not so and stands by the October report, which indicated the city could save $75 million a year if it eliminated cash bail entirely. His staff says researchers simply used and interpreted data provided by the very offices now lodging complaints.

Leaders touching every corner of Philadelphia’s criminal justice apparatus — Mayor Jim Kenney’s administration, the city Department of Prisons, the First Judicial District of Pennsylvania, the Defender Association and the District Attorney’s Office — claimed Butkovitz’ office didn’t reach out to key criminal justice stakeholders for accurate information before publishing the report that concluded the current cash bail system in Philadelphia should be dismantled.

That work is already well underway, though. City officials from across a number of criminal justice-related agencies have, for at least the last two years, worked to implement reforms to move the city toward abolishing cash bail, particularly for nonviolent defendants. The move is popular among criminal justice reform advocates.

“When you read this,” Michael Bouchard, the director of pretrial services for the First Judicial District of Pennsylvania, said of the controller’s report, “it just sounds like it’s coming from someone who just doesn’t understand the system and the way it runs.”

Butkovitz pushed back, saying the study was “backed by research and data from several agencies.”

“It sounds like the city does not like the results that were derived from its own data,” he said in a written statement to Billy Penn. “That is like Coach Brett Brown calling a foul on one of his players because he does not like his performance.”

Beyond the “flawed calculations” cited by the criminal justice officials — all of whom are part of a working group implementing reform across the city’s system — is a concern from them that the controller put out a list of recommendations that included either mechanisms already in place or moves they say are impractical. This could have been avoided, they said, had the controller checked with city officials the report was targeting.

“They pulled data that was completely outdated, used national assumptions that are not necessarily relevant to Philadelphia and incorrectly pulled and interpreted Philadelphia data,” Julie Wertheimer, the city’s chief of staff for criminal justice, said, “and didn’t bother to verify it with anybody.”

But the group of city officials slamming the controller’s report apparently weren’t aware that the leader of Butkovitz’ study did reach out to the Department of Prisons, which provided data that was in many ways the basis of the report. Other data cited came from an open source file that’s supposed to be maintained by the Department of Prisons, but that Jaime Henderson, the director of research and development for the courts, said is “not always accurate.”

So does the controller need to reach out to every interested party? And at what point does an independent audit commissioned by an office that’s supposed to be an outside arbiter of city processes become compromised?

“The purpose of conducting an independent report is to verify the facts so that the results can be justly graded. If not, the students are just grading themselves,” said Butkovitz, whose reelection bid was foiled in the Democratic primary last May. By January, he’ll be replaced, but the rumor mill is already churning: Is he running for mayor next?

Whether Butkovitz’ career in Philadelphia public service is about to end or only just beginning, nothing like a good, public fight with city officials to round out a term.

Behind the numbers

The 24-page report in question, titled “Economic Impacts of Cash Bail on the City of Philadelphia,” was conducted beginning in February by the City Controller’s Policy Unit and managed by Jeff Hornstein, the controller’s director of financial and policy analysis, according to Brian Dries, the spokesman for the Office of the City Controller.

Dries said the team gathered information in large part by meeting with the Public Defender’s Office in March 2017; attending meetings in February, March and June of City Council’s Special Committee on Criminal Justice Reform meetings; and attending a meeting of Philadelphia’s Criminal Justice Advisory Board in June.

But officials who work on criminal justice reform daily — mostly through the MacArthur Foundation Safety and Justice Challenge grant aimed at drastically reducing the city’s jail population — say the controller’s data was in some cases not properly contextualized and in other cases, dead wrong.

“It’s not a secret that the city’s been working on this issue as a whole with a massive investment,” Derek Riker, the chief of the diversions court unit at the District Attorney’s Office, said, “and there was no effort to talk to us.”

The controller’s report bases a significant portion of its savings calculations on the number of inmates being held pretrial, how long those inmates are typically held, and how much it costs to keep those inmates incarcerated.

Technically, about 64 percent of the inmates Philadelphia’s prison system are being held pretrial, a number the controller’s office received from the Department of Prisons, per an email correspondence provided to Billy Penn. But that figure is missing context when it comes to a conversation about cash bail, because a high number of those pretrial inmates are on at least one detainer, meaning they’re not eligible for bail.

The criminal justice officials who were critical of the controller’s report say it’s really more like 30 percent of inmates are held pretrial, but only 25 percent are on cash bail — individuals charged with murder are automatically detained.

ABC Bail Bonds in Center City, Philadelphia

ABC Bail Bonds in Center City, Philadelphia

Angela Gervasi/ Billy Penn

While the controller’s report does indicate that three in 10 inmates are held pretrial, a figure that’s closer to the truth here than the 64 percent number, the authors later indicate that one in three of those individuals are held on $5,000 or less.

That’s not the case, Henderson, the director of research and development for the First Judicial District, said, adding that just 10.5 percent of people with cash bail have a bail amount of $5,000 or less.

So where’s the disconnect if the data came from the Department of Prisons? Henderson said bail amounts reflected in the prison system’s Daily Census file aren’t always accurate because the amount reported may be for only one case. Say an individual has three open cases and bail is set at $5,000 each — that person has a total bail of $15,000, not $5,000.

Outdated information?

Later in the report, the controller’s office indicates that “the average Philadelphia defendant spends 25 days in jail pretrial before posting bail.” That information is sourced to 2015 data provided by the Administrative Office of Pennsylvania Courts, data Henderson said is incorrect and out of date.

“Had they bothered to verify anything with the parties involved in this,” Wertheimer said, “it could have easily been explained how different definitions are used by different parts of the system and then clarified.”

Wertheimer pointed out that the figure is particularly outdated, considering a number of reforms have already been put in place as part of the MacArthur effort, including an Early Bail Review program that went into effect in July 2016 that automatically reviews bail for nonviolent defendants who have bails of $50,000 or less and no other detainers.

Other figures cited throughout the report date back years, in several cases to a 2010 Pew report about the state of Philadelphia’s prison system — a system that’s changed significantly in the last seven years.

One of the main rotundas in the Philadelphia House of Corrections

One of the main rotundas in the Philadelphia House of Corrections

Bobby Chen / Billy Penn

Outdated information can be found in other parts of the report. For instance, at one point, the controller’s report reads: “Early bail review can be employed to review nonviolent offender cases with bail at or below $50,000 within three days of arraignment… Currently, the earliest opportunity to have bail reviewed is two to three weeks.”

Dries said that information came directly from the city’s MacArthur Foundation proposal overview, which was made public two years ago before reforms were were put into place. Since then, Early Bail Review has already been implemented. An inmate’s attorney can appeal their bail at any time after it’s set. And that Early Bail Review for eligible defendants goes into effect five days after bail is set, not two to three weeks.

The ‘recommendations’ already in place

Beyond what they saw as incorrect data, criminal justice officials who complained about the report said its recommendations showed a lack of understanding of how the system works.

For example, the controller’s report recommends the city “should move via the District Attorney’s Office to dismantle the current cash bail system and migrate to programs similar to those employed by New Jersey and Washington, D.C.”

But, as we explain here, the district attorney can’t unilaterally dismantle the cash bail system in Philadelphia. In many ways, that falls to either the courts system or the legislature. Dries, the controller’s spokesman, said, “while legislative action is a primary response, the District Attorney can be pivotal in the reform effort by having prosecutors not recommending cash bail.”

Later in the report, under a section titled “Alternatives to Cash Bail for Nonviolent Offenders,” the authors write:

“Alternatives to cash bail can include passive supervision, automated reminders, text and email reminders, and various levels of more direct supervision. Many of these provisions are already being put in place via Philadelphia’s Committee on Criminal Justice Reform and the MacArthur Grant initiatives to increase the number of defendants that appear at scheduled court hearings.”

In fact, many of those provisions were in place long before either of those groups existed. Bouchard said the First Judicial District has used automated phone calls for court reminders since 1999, and text and email reminders were added to the system in 2014. On top of that, the courts have had a pretrial supervision unit for more than 30 years.

In the same section, the authors of the controller’s report write:

“The City of Philadelphia has begun to examine the merits of supervision in lieu of incarceration using a variety of methods, including technology and a more traditional human interface. Proposed systems include: Use of pre-trial risk tools, a reminder system using wireless technology… and early bail review for cases with bail of less than $50,000.”

But here’s the thing: The First Judicial District has used risk assessment to set bail since the mid-1980s, it’s had court reminders in place for years and the bail review system began last summer.

Wertheimer also pointed out that much of purported savings the controller believes could be incurred come from a recommendation to close two facilities, the House of Corrections and the Detention Center, a move she said isn’t practical.

While the city is aiming to reduce its inmate population to about 5,300 (from more than 8,000 in 2015), that wouldn’t necessarily free up enough space to close two facilities that house more than 2,000 inmates combined. That’s because, as Wertheimer explained, the prisons “can’t just put any inmate into any housing bed.”

For example, men and women can’t mix. Neither can adults and juveniles charged as adults. The jails can’t mix the sentenced with the not sentenced, and can’t put low-custody inmates in high-custody areas. Placing inmates in facilities is a complicated matrix that comes down to more than how many beds are available.

Ultimately, Wertheimer said, criminal justice officials across city agencies are working to reform the cash bail system not to save money, but because “reform is needed.” She accused the controller of acting out of rhetoric, not fact.

“If we’re coming at it with two separate understandings of it, one based in data and one based in rhetoric,” she said, “then it’s impossible to have a meaningful conversation about what reform should look like and how we should move forward.”

Henderson acknowledged there are flaws with how different stakeholders keep and present data about the city’s criminal justice system, including inaccurate data available in open forums. She said that’s why there’s infrastructure in place to fix that as part of the MacArthur efforts. For now, she says she just wants to correct the record.

“Damage control,” she said, “has become a full-time job.”