Used to presiding above the fray, the authorities that run courts in Philadelphia and across the state are currently enduring an onslaught of legal actions taking aim at how justice is administered — in several cases, specifically challenging the court’s own policies and procedures. The Pennsylvania Supreme Court, which rarely exercises its extraordinary “King’s Bench” powers, has accepted not one but two petitions to flex its authority over the state and local courts. And petitioners are asking for more.
Most recently, on Wednesday, a Philadelphia group of court-watchers sued in federal court for the right to record audio of proceedings at preliminary arraignments, where bail or other pretrial release conditions are set. That petition, filed by an independent journalist and the Philadelphia Bail Fund with help from a prominent city law firm, just might be the first to open up a court system that has one of the most limiting media-access rules in the nation.
Here’s what might (or might not) change, depending on how the court responds to these petitions.
1. Access to recording. Pennsylvania courts, as a rule, ban audio recording, video and photography in courtrooms — and, recently, the state legislature expanded those restrictions to include areas in the vicinity of courtrooms. Now, the Philadelphia Bail Fund, which runs a court-watching operation, Philadelphia Bail Watchers, in conjunction with Pennsylvanians for Modern Courts, is suing for the right to record preliminary arraignments. The Bail Watchers say it’s crucial to shed light on what’s going on in that obscure basement courtroom, where they claim defendants are not receiving due process and the office of reform District Attorney Larry Krasner is not upholding his stated commitment to end money bail.
They’re up against longstanding state law, but they have help from the law firm Ballard Spahr and the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center.
Arjun Malik, a Philadelphia Bail Fund board member, said it’s particularly problematic that the hearings, unlike trial court proceedings, are not transcribed: “There’s no record that documents the hearing and allows us to hold people accountable and share it with the wider public.”
It’s unlikely that the lawsuit, even if successful in reforming rules for preliminary hearings, would change the overarching prohibitions on recording in court in Pennsylvania, which are “unique in a lot of ways and particularly restrictive,” according to Georgetown Law’s Nicholas Riley. But, he added, “it could potentially serve as a basis for challenging various types of recording in courtrooms.”
Riley said groups around the country have been working to make improvements to court transparency in recent years, arguing it’s a fundamental First Amendment issue. “It’s worth noting that in the Eastern District of Pennsylvania, where we filed this, anyone can get a recording of any proceeding.”
2. Bail hearings. Last year, the ACLU of Pennsylvania began conducting its own bail-watching operation in Philadelphia. It, too, alleged that the process was unjust, resulting in hearings that lasted less than three minutes, where defendants were not allowed to speak and where magistrates routinely imposed money bail on indigent people without considering ability to pay.
The ACLU filed suit against the court and the bail magistrates demanding reforms. The state Supreme Court announced in July it would step in and appoint a special master to review the practices.
“The inquiry shall be limited to petitioners’ allegations regarding systemic failures of the First Judicial District to properly conduct cash-bail matters pursuant to current law, as well as any suggestions for action by this court in response to those alleged systemic failures," the court noted.
"Any attempt to advocate for the abolition of cash bail will not be entertained,” it added.
3. Detainers for probation violators. The Defender Association of Philadelphia, which staffs the courthouse with public defenders for the city’s tens of thousands of indigent criminal defendants, has taken an emboldened activist approach under chief Keir Bradford-Grey. Among the boldest moves so far has been Bradford-Grey’s steadfast commitment to reforming the system by which orders to detain are imposed on individuals accused of violating probation or parole.
Most recently, in June, the Defender filed a lawsuit urging the state Supreme Court to take up the issue. It argues: “Detention on a probation detainer, without any necessary reliable showing that release will endanger the community, eviscerates the right to bail, violates the presumption of innocence, and constitutes constitutionally impermissible punishment."
The lawsuit was filed on behalf of a man who was on probation when he was charged with dealing marijuana. Though his bail was set at zero, a probation detainer order held him in jail until his trial on the new charge.
In a brief supporting the action, the American Civil Liberties Union of Pennsylvania and the Public Interest Law Center noted that detainers now hold more than half of individuals in jail in Philadelphia. “Probation violations drive Pennsylvania’s mass incarceration crisis.... Detainers lodged against those charged with, but not convicted of, probation violations hold thousands in pretrial status.”
4. The death penalty. The Federal Community Defender’s Office for the Eastern District, based in Philadelphia, also has urged the state Supreme Court to exercise its King’s Bench authority — in this case, to strike down Pennsylvania’s death penalty, citing the state’s own report outlining problems with how the punishment is administered.
The petition cited findings that: “Pennsylvania’s modern death penalty system has exonerated as innocent, after many years under sentence of death, twice as many death row prisoners as it has executed; [and] that death sentences are primarily attributable, not to the defendant’s unique culpability, but to bad lawyering, geographical happenstance, racial disparities, and prosecutorial caprice."
There has been opposition from the Pennsylvania District Attorneys Association, and concerns about propriety from the state legislature.
“The essence of the question is … Whose jurisdiction is it?” Drew Crompton, the top lawyer in the state Senate, told the Inquirer earlier this year, warning a ruling could “further erode the legislative branch’s powers.”
But Philadelphia District Attorney Larry Krasner is arguing that action is past due.