Should Philadelphia Establish a Bail Fund?
Written by: Alison Smeallie, ’19
One in four adults in Philadelphia jails are detained simply because they cannot pay their release. What is a bail fund and how does it help alleviate this problem?
On Friday, November 3, 2017, the Philadelphia City Council Special Committee on Criminal Justice Reform held a hearing on the possibility of the city establishing a bail fund.[1] Local organizers have already created their own bail fund, the Philadelphia Community Bail Fund, which is currently funded through individual donations rather than public funding.[2] The purpose of this hearing was to discuss the possibility of city provided funding or alternative city participation in the administration of a bail fund in Philadelphia.[3]
A chief goal of criminal justice reform advocates is to dramatically reduce or eliminate the use of cash bail in Philadelphia by implementing alternative mechanisms for ensuring public safety and court appearance.[4] The committee however understands that reform is not linear.[5] They therefore see the establishment of a bail fund as a bridge from our current system to one that does not rely on cash bail.[6] Proponents of establishing a bail fund in Philadelphia supported by public funds argue it would alleviate some of the worst consequences of our cash bail system by paying for the release of those who are poor and are held in jail simply because they cannot afford to post the bail they were assigned.[7]
To determine whether a bail fund would assist Philadelphia in the effort to reform its criminal justice system, it is important to first diagnose the many problems that cash bail has caused for our city. As of November 3rd, the day of the hearing, there were 6,698 adults incarcerated in Philadelphia jails.[8] Approximately twenty-five percent of those adults are held pretrial; meaning they have an open case with no detainers, on non-murder charges.[9] This means that about one in four adults in Philadelphia jails are there simply because they cannot afford to pay for their release. The goal of establishing a bail fund is to provide relief for this segment of the jail population, those approximately 500 people detained solely on a low cash bail amount that they cannot afford. [10]
One of the testifying witnesses at the Bail Fund Hearing was Pilar Weiss of the National Bail Fund Network, which is a Network of 20 bail funds around the country.[11] She explained that there are models around the country of bail funds that function at the city, county, and state level.[12] Some of these funds are administered by the relevant governing body while some are administered by non-profit organizations.[13] Ms. Weiss explained that although there are many potential bail fund models to choose from, Philadelphia must be certain to hold true to two core values.[14] First, the funds should be administered with no expectation of repayment in an effort to uphold the constitutionally protected presumption of innocence afforded to the accused; second, the city must maintain that its ultimate goal is to end the use of cash bail in its entirety.[15] Ms. Weiss argued further that a bail fund should only be used as a temporary harm reducer, or as she referred to it, a bandaid.[16] She made it clear that there is solid data from around the country that suggests that about ninety-five percent of individuals who receive aid from a bail fund attend all their hearings and complete their case.[17] She concluded that it is critical that City Council defer to the expertise of those activists currently running the Philadelphia Community Bail Fund to identify best practices for serving those who are held on cash bail in our city.[18]
It is my opinion that establishing a bail fund in Philadelphia that is funded by public money is a promising development in the criminal justice reform movement. However, we as reform minded Philadelphians, must be vigilant not to allow this fund to dissuade our city from ending cash bail entirely. It is critical to constantly remind citizens and their elected officials that the system of cash bail flips the constitutionally protected presumption of innocence on its head and results in a criminal justice system in which only the poor are deprived of their liberty. Although a bail fund would seemingly provide funds to bail out those detained because they are poor, nothing short of completely abolishing the use of cash bail in Philadelphia can permanently remedy the current system of injustice that poor defendants face in this city. A publicly sponsored bail fund is a start, but is not good enough.
My ultimate recommendation is, therefore, that City Council pass a resolution to allocate funds for the existing Philadelphia Community Bail Fund with a one year reauthorization requirement. Council would therefore be required annually to reaffirm their reasons for delayed transitioning to a system without cash bail and in effect, provide organizers and citizens with a ripe opportunity to influence elected officials and to demand action. The resolution should also include a provision that proposes a timeline for the complete elimination of cash bail by January 1st of 2020 in an effort to prevent City Council from using the bail fund as an excuse to slowly back away from its commitment to ending cash bail. By facilitating the creation of a robust bail fund network and setting a date for the elimination of cash bail in Philadelphia, City Council would effectively provide relief to the poor families victimized by our current cash bail system and bridge the gap between present injustice and a future without cash bail.
[1] Hearing Video: Resolution No. 170838 – Resolution authorizing the Special Committee on Criminal Justice Reform to hold hearings regarding the role of a bail fund in Philadelphia, (Nov. 3, 2017) http://phlcouncil.com/criminal-justice-committee/hearing-transcripts-and-documents/.
[2] See generally, Philadelphia Community Bail Fund, http://www.phillybailout.com/ (last visited Feb. 12, 5:00 PM).
[3] Samantha Melamed, Can a Philly community bail fund fix our criminal-justice system?, PHILLY.COM (Nov. 8, 2017), http://www.philly.com/philly/news/crime/can-a-philly-community-bail-fund-fix-our-criminal-justice-system-20171108.html.
[4] Anna Orso, How Philly Plans to Ditch Cash Bail and What Stands in the Way, BILLYPENN, (Sept. 11, 2017, 7:00 AM), https://billypenn.com/2017/09/11/how-philly-plans-to-ditch-cash-bail-and-what-stands-in-the-way/. (explaining how the city officials are working with researchers at the University of Pennsylvania to develop a new risk assessment tool that they hope will allow for a scientific approach to assigning alternatives to cash bail). The director of pretrial services explained, “The goal with implementing a new risk tool is to reduce or eliminate cash bail.” Id.
[5] See Hearing Video, supra note 1.
[6] Id.
[7] Dana DiFilippo, Philly Activists Raising Money to Bail Poor Defendants out of jail, Whyy, (Oct. 3, 2017), https://whyy.org/articles/philly-activists-raising-money-bail-poor-defendants-jail/ (“All such funds are intended as temporary, stopgap measures until authorities can reform longstanding cash bail systems, where pre-trial inmates who can’t afford even low bail can get trapped for months, or even years, behind bars.”)
[8] Bail Fund Hearing- Opening Statement by Julie Wertheimer, Chief of Staff for the Special Committee on Criminal Justice Reform, (Nov. 3, 2017), https://www.youtube.com/watch?v=Z74t-QcWGLA&feature=youtu.be.]
[9] Id.
[10] DiFilippo Supra note 7, (explaining that Michael P. Bouchard III is the director of pretrial services for the First Judicial District and stating, “About 8 percent of all city inmates — about 550 — are held on $50,000 or less bail . . . ”).
[11] See generally, Brooklyn Community Bail Fund, National Bail Fund Network, https://brooklynbailfund.org/national-network/ (last visited Feb. 12, 5:00 PM).
[12] Pilar Weiss, Bail Fund Hearing Testimony, (Nov. 3, 2017), https://www.youtube.com/watch?v=Z74t-QcWGLA&feature=youtu.be.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.