Criminal justice explainer: How bail works in Philadelphia

The system is coming under increased scrutiny, with many parties working toward reform.

Bail hearings take place in the basement of the Juanita Kidd Stout Center for Criminal Justice

Bail hearings take place in the basement of the Juanita Kidd Stout Center for Criminal Justice

Wikimedia Commons / By John Phelan - Own work, CC BY-SA 3.0
Neilay Shah

Wander into room B-08 in the basement of the Juanita Kidd Stout Center for Criminal Justice and you’ll find a scene that looks like it could have come from a dystopian fantasy.

You’ll see a courtroom, sealed off from a spectator’s gallery by a soundproof glass wall. Beyond, you’ll see the backs of two individuals sitting at desks covered in stacks of files. Ostensibly, they are communicating with the robed magistrate that sits atop the bench at the head of the courtroom. But they often forget to use their microphones, which makes it difficult to tell what they are saying — or whether they are saying anything at all.

To the left, you’ll see a TV filled with the face of of some tired looking person. They’ll be leaning in toward the camera with furrowed brow, straining to hear what is being said. Over the course of a minute or two, you’ll hear the magistrate ask the floating face a few questions, provide a couple rote explanations of procedure, and then toss out a number: $5,000; $25,000; $250,000. Within seconds, while you’re still trying to wrap your head around what just happened, a new face will have replaced the old face, and the performance will repeat itself, again and again.

What you just saw was a Municipal Court bail hearing.

Philadelphia conducts approximately 40,000 to 60,000 of these every year, which translates to about 136 per day. The decision the magistrate makes in a minute or two will determine whether that tired person gets to go home or has to sit in jail as they awaits trial, which could take upwards of three months to begin.

Put another way, the magistrate’s decision could mean the difference between a defendant keeping their job, their health, and custody of their kids — or losing them all.

In Philly and across the country, systems of bail are coming under increasing scrutiny, and reforms are being debated and considered. Meek Mill’s situation — in which a judge attempted to deny him bail entirely — was one of the most high-profile examples.

Overall, various studies show pretrial detention significantly increases a defendant’s likelihood to be found or to plead guilty, in large part because it limits a defendant’s ability to work with their attorney and incentivizes them to plead guilty to get out of jail.

But if you’re lucky enough to have never been involved in one of these proceedings, you might not know much about how bail works. Here’s a primer.

What is bail?

The purpose of bail is to keep people who are awaiting trial out of jail, not in it.

The idea emanates from a powerful premise in our system of law: everyone is presumed innocent until proven guilty. The government cannot punish you until they have proven that you committed a crime.

Since most would consider being restricted to a 9′ x 13′ cell for upwards of three months to be a punishment, Pennsylvania law provides courts the power to release defendants from jail on conditions of “bail” — conditions that ensure that you will show up for your court dates without unnecessarily limiting your freedom.

A magistrate can set bail in a variety of ways, only one of which requires a defendant to put up money.

For example, a magistrate can release a defendant so long as the defendant promises to return for their court dates. Or the magistrate can set conditions of bail that simply require a defendant to report to rehab while awaiting trial. While defendants are not necessarily entitled to bail, state law and legal tradition instruct courts to provide opportunities for bail as often as possible.

Magistrates run the show

Philadelphia calls bail hearings “preliminary arraignments.” These hearings are presided over by one of six magistrates, who are appointed by the president judge of Municipal Court. These magistrates do not necessarily have law degrees.

The magistrates take turns manning the helm of the preliminary arraignment court, which runs on a 24/7/365 basis. They are accompanied by a public defender (PD) and a representative from the District Attorney’s Office (DAO). The PD and DAO’s representatives argue their own bail recommendations for each defendant.

But the defendant is not present — at least, not in person.

The defendant is videoconferenced in from one of the city’s eight booking centers, where they usually sit a few feet away from a boisterous group of other defendants awaiting their own preliminary one another.

Videoconferencing: speed at what cost?

Philadelphia implemented videoconferencing in the 1996 in an attempt to ensure that “defendants would be brought before magistrates expeditiously,” and to reduce overcrowding at the Police Detention Unit (PDU), a spokesperson for the First Judicial District explained to Billy Penn.

Since videoconferencing’s implementation, average-arrest to-arraignment processing time has fallen from 36 hours to less than 20 hours.

Philadelphia was not the only jurisdiction that implemented videoconferencing for bail hearings, but several others have since done away with the practice because of its prejudicial consequences for defendants.

Empirical analysis has shown that magistrates set more restrictive conditions of bail when hearings are not conducted in person. Cook County, Illinois, for example, ended its video system in 2008, after a study correlated videoconferencing with magistrates increasing their bail orders by 51 percent.

Pre-hearing reports set the stage

A defendant in Philly Municipal Court receives a bail hearing within 20 hours of their arrest.

While the defendant waits, they’re interviewed via videoconference by the Pretrial Services Division (PSD). The interview covers the defendant’s demographics, residence status, employment, physical and mental health and history of drug or alcohol use. PSD feeds this information into a program that spits out a report and recommends non-binding guidelines for setting bail. PSD then forwards this report and the guidelines to the bail commissioner.

That report and guidelines, along with the police report, the DAO’s charges and the defendant’s criminal history, will usually be the only information available to the magistrate during the defendant’s preliminary arraignment.

Family members can provide more information to the public defender before the hearing, but the pace and unpredictable schedule of bail hearings often prevents family from attending.

Determining the amount

Magistrates weigh whatever information they have against a set of criteria to determine the appropriate conditions of bail.

If the magistrate orders secured bail, the defendant has to put up 10 percent of the bail amount in cash to get out of jail, plus a $10 processing fee. The magistrate’s decision is subject to immediate appeal, at the PD or DA rep’s request, and nonviolent defendants with bails below $50,000 who cannot afford to put up 10 percent will also receive a case review within five days under the Early Bail Review program.

This program was part of reforms enacted when the city was awarded a $3.5 million grant from the MacArthur Foundation to kickstart a three-year plan to slash the prison population by 34 percent.

Defendants do not get an opportunity to meet with an attorney prior to their bail hearing.

Those who are processed at Police Department Headquarters during standard working hours might get to speak to a bail advocate, another program being piloted as part of the MacArthur reforms, but this person is not an attorney and works limited hours.

Change on the horizon

The MacArthur reforms have already had an affect on Philadelphia’s jail population, which has dropped by 33 percent since they began. This decrease allowed the city to officially announce plans to close the notoriously dilapidated House of Correction jail — known as “The Creek” — by the year 2020.

And under a new policy implemented by District Attorney Larry Krasner at the beginning of this year, Philly prosecutors will no longer seek cash bail in certain cases of nonviolent offenses.

Krasner had campaigned on a promise to get rid of it altogether.

“The ideal situation,” he said last fall, “would be to eliminate cash bail entirely.”