This essay first appeared AUGUST 11, 2015 on ESSAYWORKS at WHYY NEWSWORKS
It is estimated that up to 65 percent of those in prison in Philadelphia are awaiting trial and have not been convicted of any crime. Many of them simply cannot afford to pay their bail.
“There is supposed to be some common sense in the law,” says Tim Devlin, an ex-convict who has seen Philadelphia’s unfair bail system from the inside, “and I think a lot of that has been forgotten.”
Fortunately, it has not been forgotten by everyone. A bill to “eliminate pre-trial detention for failure to post bail” is being drafted right now in the office of State Sen. Daylin Leach, a Democrat who represents parts of Montgomery and Delaware Counties.
“People who struggle to make ends meet often face challenges that may not be obvious to the rest of us,” Steve Hoenstine, director of communications for Leach, says of the motivation for the bill. “If you aren’t poor or haven’t been through the criminal justice system, you probably wouldn’t be aware of the grave injustice that our current bail system imposes on the poor.”
What sticks with people
Devlin has a lot to look forward to these days. The father of three will be getting married soon. His third-shift job, working overnight, can take its toll, but he always makes time for his family and his music. He did not always have this outlook, though. When he was between the ages of 18 and 22, he amassed quite a rap sheet for possession, of drugs and weapons, vandalism, criminal mischief, and more.
“I’m 36 years old,” Devlin says. “I haven’t been convicted of a crime since 2002. That’s a long time. My fiancée even tells me, ‘A lot of time, when you do things, I can tell you’re really apprehensive about it because you’re scared of stepping out of the line.’ If I step over the line a little bit, it’s like: He’s been convicted. We got him. It sticks with you for a long time.”
What sticks with people is the entire jail experience, from beginning to end. Not everyone is privy to the ins and outs of the justice system, until they are within the justice system, and at that point there is very little you can do. Devlin says what he saw was that “a lot of the time you’re just trying to exercise your rights, and they try to use that against you.”
The case of Sandra Bland in Texas, and the trouble she faced trying to make $500 bail, has brought some of the issues about prohibitive bail to light recently across America. When it comes to prison issues, Philadelphia is too close to the top of a very undistinguished list. We have one of the highest prison populations in the nation.
One of the first encounters with the court system after arrest is a bail hearing.
“You have people who are unemployed or minimum wage, and they give them $30,000 bail for possession of marijuana,” Devlin says of his experience. That number, though, is not far off. The typical bail request in Philadelphia is $20,000. As for making that bail, Devlin continues that “in Philadelphia you have to pay 10 percent. So that would be $3,000 that they have to pay, but still, you know what I mean. You take someone that is unemployed or maybe has one or two other arrests for possession of drugs or something, and they give them something they can’t possibly make.”
If a person cannot make bail, there is only one choice: to remain in jail.
In Devlin’s experience, “You have 24 hours after you see the bail commissioner to pay bail. If you don’t make it, you go up State Road, once you get to county up there. Then you sit on State Road. If you can’t make bail, you just sit there until your court date. But the problem is … I’ve seen people on State Road for a year for a nick bag of weed.”
‘Speedy justice’ lags on
Statistics show that 15 percent of pretrial inmates are in jail for 120 days or longer awaiting trial. Philadelphia pretrial holdings for bail have increased 40 percent since the time Devlin was last in prison, and even then he says he noticed the issues with high bail, and who they seemed most applied to — not just at bail hearings, but while in prison.
“I’ve been in the prison system in California, in Jersey — it’s always pretty much the same any way you go,” Devlin says. “But in Philly, you got guards who don’t even want to be there, and just for no reason, won’t let people out on the block, so they can’t call their family or something. Like, you could have court the next day and they just don’t feel like letting people out, they just won’t. You can’t call your family, you can’t prepare for things, the law library that they just won’t let you to. You can’t even get access.”
Month after month, hearing after hearing, the entire process, which purports speedy justice, lags on, breaking people down — keeping them from their loved ones, causing them to lose legitimate jobs, on charges that are sometimes dropped altogether, simply because they cannot pay a fee.
“I think that there is a racial aspect to Philly as well.” He tells me, “I can remember being in the district, with people with the same charges who are black, and I would get ROR [released on own recognizance], and they would go up and get the $3,000. You know what I mean? It’s like, damn, it’s kinda crazy.”
In Philadelphia, about 40 percent of arrests get ROR, while 60 percent get bail. And 66 percent of the entire inmate population is African-American.
Once a person is able to make bail, and appears in court, they do not get the entire bail returned to them. Only 70 percent of a bail posted is returned to the person who posted it in Philadelphia. That means that on a $3,000 bail, even if the person arrested is found innocent, it will end up costing them $900.
“You have the privatization of prisons now,” Devlin says, “and it just seems like the punishments are harsher, especially financially.”
Hoenstine says that Leach’s bill intends only to “eliminate pre-trial imprisonment unless a judge finds the defendant is a danger to themselves or the community, has a history of flight, or is charged with a capital crime. Defendants who do not fit that criteria would be released and expected to appear in court. If they fail to appear in court, they’d be subject to a monetary penalty set by the judge.”
With all of the costs associated with being in the prison system for inmates, it is still estimated that of every tax dollar paid in Philadelphia, seven cents goes to the prison system, where over half of those interred are awaiting trial. The financial advantages of eliminating specific bail circumstances are still being considered, and Hoenstine says Leach is trying to reach across lines to find support for this bill and is even “eager to work with members of the Republican Party — particularly fiscal conservatives who know how much money this could save taxpayers — to produce language that can pass.”
“They say they’re basing [bail] off your record. They’re supposed to take your income as a factor,” Devlin told me. “Sometimes with the crimes, it seems like they’re targeting low-income people.” With a change to bail, Philadelphia can stop confining its poorest residents and look to join some more prestigious lists, lists of cities lowering their prison population.