Bail reform seeks to cut incarceration rates
It’s 11 a.m. in Judge Jeffrey Manning’s courtroom. The attorneys are ready. The Allegheny County Common Pleas Court president judge is on the bench. The video screen comes alive to reveal the business of the morning, a series of people in orange, jail-issue jumpsuits: One young man with a retail theft charge and a drug problem; another who had been arrested for driving drunk and released without having posted a money bond only to skip his hearing; a Westmoreland County man accused of stealing identities to buy gift cards; and a dozen others in trouble with the law.
They’ve been in the Allegheny County Jail for fewer than 72 hours. Most have been arrested for nonviolent offenses, and a lot of the charges involve drugs—having them, using them, selling them.
Many of the men and women are held on monetary bail bonds set by one of 42 county district justices. In most cases, the money bonds conflict with the recommendations of investigators for the court’s Pretrial Services agency. Based on interviews and other information, they calculate the risk of an offender failing to appear for trial or committing another crime while waiting for trial. On this morning, they’ve recommended that the nonviolent offenders on the docket be released under court supervision without having to pay a money bond to secure their freedom.
Manning agrees, in most cases. The identity thief’s money bond is set aside in favor of having him regularly report to Pretrial Services, stay out of trouble and show up for trial. The money bond against the young man with a DUI is also set aside under the same conditions, despite the fact he had skipped a previous court hearing. The young man with a drug problem accused of stealing also has his money bond set aside. He is ordered to regularly report in person to Pretrial Services and undergo outpatient treatment for his addiction before trial.
The use of money bonds to hold people who are arrested is falling out of favor in an increasing number of courts across the U.S., and Allegheny County is among them. The reasons include concerns about mass incarceration, as well as jail costs, civil lawsuits and studies that find jail time increases the chances of being arrested again.
Such concerns have led to efforts to reform the way courts manage defendants before their trial. And the result has been the rise of a more evidence-based approach for deciding who should and shouldn’t be locked up that takes money out of the equation.
“Recommending monetary bail was one of the things we did because that’s just how you did things,” said Janice Dean, director of Allegheny County Pretrial Services, which manages how people arrested are handled before their cases are resolved. “But you have people who aren’t dangerous staying in jail because they don’t have the money. And if I have $500,000 to post, no matter how dangerous I am, I’m getting out. Money doesn’t make us any safer.”
Incarceration nation
The United States incarcerates 693 people for every 100,000 residents, higher than any other country. Prisons and jails are overpopulated. And studies show that mass incarceration and its consequences disproportionately affect the poor and minorities, particularly African Americans.
It’s an issue that can’t be ignored when addressing poverty in America, said Jeanne Pearlman, senior vice president of program and policy at The Pittsburgh Foundation, which through its 100 Percent Pittsburgh initiative explores ways to improve opportunities for disadvantaged residents to benefit from the region’s economic revival.
“The 100 Percent Pittsburgh framework asks, how is the system perpetuating the conditions that keep people in poverty. Mass incarceration is one of those things. It is a cause of poverty and it is an effect of poverty at the same time,” she said. “We are an enlightened society. What we want is a system that gives people the opportunity to turn their lives around.”
How courts deal with people from the time of their arrest to trial is part of the problem, including monetary bail. Jailing low-risk offenders even a few days can result in consequential setbacks.
“You can lose your job, housing, your government assistance—even if the charges are dismissed later,” said Elliot Howsie, chief public defender in Allegheny County. “The person gets out of jail and his housing is in a state of crisis, his job is probably gone, his family is in turmoil.”
National studies report that when compared with similar offenders released before trial, low-risk offenders held longer than three days are 50 percent more likely to be re-arrested within two years, 30 percent more likely to be convicted or plead guilty, three times more likely to receive a prison sentence and twice as likely to receive a longer prison sentence.
Changes at the front door
Unlike state and federal prisons, most of the inmates in county jails have not been convicted of the crime that landed them there. In Pennsylvania, only convicted offenders with a sentence of less than 24 months can serve their time in a county jail. In Allegheny County, they make up about 20 percent of the jail population.
Efforts to reform pretrial practices focus on thinning the population of inmates awaiting trial behind bars. Limiting or eliminating the use of monetary bond is one of the most widely used strategies. This year, for example, New Jersey joined a growing list of states that have placed tight restrictions on the use of monetary bail in order to discourage the practice in every county.
Pretrial reforms rely on the courts to provide bond recommendations based on an investigation of an offender’s criminal record, appearance history, personal circumstances and other background. The information is used to assess the level of risk—from low to high —of a person failing to appear for a hearing or committing a crime while awaiting trial.
Alternatives to monetary bond are also expanded, such as court supervision options ranging from requiring a person to regularly report to a pretrial agency to electronic monitoring. Outcomes have largely been favorable. In fact, Kentucky, one of the first states to embrace such reforms, reports that the practices result in lower re-arrest rates and higher court appearance rates.
“Solving this problem is really the lowest hanging fruit on the criminal justice tree,” said Cherise Fanno Burdeen, chief executive officer of the Pretrial Justice Institute, a nonprofit that provides technical assistance for improving pretrial practices. “The solution is to move from an offense-based, money-based decision-making system to one that is risk-based. We know what to do. We know that it works. We know that we see immediate results.”
‘Far more promising direction’
Pennsylvania has yet to join the handful of states that have passed sweeping pretrial reforms. But Allegheny County began down that path in earnest in 2007 following an evaluation by a national research firm that was critical of its pretrial court practices.
Allegheny County Pretrial Services was created as an arm of the courts to manage defendants prior to trial. The courts also adopted a risk assessment tool to provide magistrates with background information on people charged with a crime and recommend the appropriate bond to set.
The risk assessments require investigators to interview people charged with a crime face-to-face. The county’s 12 Pretrial Services investigators look into some 22,000 cases a year, but until late last year it only had the manpower or the means to make bond recommendations for people who come before nine magistrates in the City of Pittsburgh or who are brought into the county jail.
The bond recommendations, however, are not binding, allowing district magistrates to use their discretion, which can be influenced by circumstances in the communities that elected them. A recent report by the University of Pittsburgh Institute of Politics found that magistrates follow the bond recommendations of Pretrial Services investigators 63 percent of the time.
Judge Manning’s “motions court” held every weekday at 11 a.m. is a backstop where the judge considers modifying bonds, typically those that require offenders to have the financial means to secure their release. They are scheduled within 72 hours after arrest. Monetary bonds for nonviolent offenders and bonds that conflict with pretrial recommendations are often modified.
Pretrial inmates who were not on probation when they were arrested make up 34 percent of the Allegheny County Jail population on any given day, according to an analysis of 2015 Pretrial Services data. Of those, 83 percent are deemed to be high risk and not recommended for release. People considered low risk and recommended for release on their own recognizance account for less than 1 percent of the jail population.
Another 38 percent of inmates were on probation when they were arrested. That’s a probation violation and they are detained until a hearing to decide their fate is scheduled before the judge who sentenced them, which can take a week or longer. The rest of the jail population includes convicted felons serving sentences and offenders being temporarily held for other jurisdictions.
District Justice Richard King finds that with the pretrial risk assessment he has more insight into offenders today than at any time in his 24 years on the bench. “Before, we didn’t even have the rap sheet, so we wouldn’t know about prior convictions.”
But the bond recommendations he receives from Pretrial Services are not always what he decides to set, particularly when they suggest non-monetary bond for drug offenses and especially when those charges involve opiates, such as heroin. His district includes the Borough of Mt. Oliver and the City of Pittsburgh neighborhoods of Carrick and Allentown, where opiate-related overdose deaths are among the highest in the county, according to a Department of Human Services study.
“People die daily from heroin overdoses,” he said. “Is the heroin seller not a danger to the community? There are more heroin deaths than homicides. Why should they not be a danger to the community?”
Manning understands. “You can always help the guy who is a first-time offender. That’s never a problem. He might get a summons from the police and not see the jail. If he does, he’s going to be out very quickly. But if you look at who we get, for a lot of them this isn’t their first rodeo. Now you have a guy who has done four probations, has a drug problem and he’s committing more crimes. That’s our problem.”
It cost taxpayers $86.77 to house a single inmate for one day in the Allegheny County Jail, according to jail estimates. Since 1995, the average daily jail population has been below the 1,850 inmates it was designed to house only twice.
But the jail population is in decline, having fallen from a high of 3,370 inmates in 2006 to 2,277 in 2016. Changes in how pretrial defendants are managed has helped, as have other reforms, including a community collaborative that has led to new jail programs for reducing recidivism.
And more steps are being taken. In September, Allegheny became one of 11 U.S. counties to adopt a new risk assessment tool developed by the Arnold Foundation that doesn’t require interviewing offenders. It is being introduced to district justices outside of the city, where evidence-based bond recommendations are limited. And for the first time, the public defender has begun providing counsel to low-income offenders at city court arraignments when bonds are set.
“I’ve been around since 1998 and I can say the direction we are moving in is far more promising than where we’ve been. But there is still work to be done,” Howsie said. “The truth of the matter is a day in jail is too long if you don’t need to be there. The consequences of being removed from your job, your home, your car, your family when you shouldn’t be has a profound impact on that person, the jail population – everyone pays.”