As the pandemic forced Philadelphia’s criminal courts to shut down for much of 2020, and some defendants approached a year in jail without a hearing, lawyers began noticing a strange phenomenon. Thousands of cases were all being listed for December status hearings in Room 200 of the Stout Criminal Justice Center.
The problem? There is no such courtroom.
The process of rescheduling those cases is ongoing — court dates are now being scheduled into July, lawyers said. It has become one striking example of the courts’ struggle to adapt, as an escalating backlog has now exceeded 13,000 cases, according to the Defender Association of Philadelphia. Ten months into the pandemic, the rule guaranteeing a speedy trial remains suspended.
Last week, the Defender Association took the unusual step of petitioning the Pennsylvania Supreme Court to intervene. The filing sought release for six people who had been jailed more than 200 days without a preliminary hearing, at which prosecutors must show probable cause that a crime occurred.
“Because nearly all court hearings and trials have either stopped or slowed to a trickle, each petitioner, and hundreds of others like them, have been unable to contest the basis of their confinement,” the Defender Association wrote.
The president judge of Philadelphia’s Municipal Court, Patrick F. Dugan, said in an interview that the courts are navigating a complicated and imperfect process amid unprecedented challenges.
“I have two jobs. One is our mission, which is to do these cases in a fair and expeditious manner for everyone involved,” he said. “But in COVID, the welfare of the people has to be a parallel [concern]. We have to take into consideration the health of our people: the attorneys on all sides, the sheriffs, witnesses, victims, police, anyone involved in our court system.”
Courtrooms where judges once heard more than 50 cases per day are now limited to a few per hour, he said.
And even when the court is ready, other justice system actors may not be.
Last fall, he instituted status calls before preliminary hearings to ensure that all sides would be ready. But of 4,300 hearings scheduled that way, 61% still ended up getting delayed.
The court also, for the first time, began allowing attorneys to file motions electronically to argue for bail reduction and other considerations. “We have expressed to all the attorneys on all sides they can file as many motions” as they’d like, Dugan said. “That hasn’t really happened.”
Dugan said the Room 200 list reflected another attempt to expedite cases. Judges throughout the fall sent cases to that room as a placeholder, hoping COVID rates might “take a turn in the right direction” and allow judges to reschedule those cases promptly. The city’s rising case count, and an outbreak in the city jails, dashed that hope. On Dec. 5, the jails locked down for a month and stopped transporting defendants to court.
The jail population, now at 4,500, has crept up toward pre-pandemic levels, even as community groups spent more than $5 million to bail out around 700 people in the last year. But close to half of prisoners have detainers, meaning an arrest put them in violation of parole or probation and they are not eligible for bail.
In its petition, the Defender Association asked the Supreme Court to institute new procedures to limit pretrial jail stays. The proposed measures included requiring prosecutors to “certify” that they have the witnesses available to put on a case — in some cases, the Defender Association said, prosecutors said they were ready but did not have witnesses available. The petition also asked to lift detainers for anyone jailed more than nine months.
That would be a relief for defendants like Philip Ingram, 31, who joined protesters marching through Center City on May 30 chanting the name George Floyd — and was one of a dozen people arrested that night, accused of burglarizing Macy’s.
Ingram says he didn’t enter the store or take anything. But nearly eight months later, he has not had a preliminary hearing. There’s no court date scheduled, either. He remains imprisoned on a parole detainer, related to a 2013 conviction for shooting at a man from Northwest Philadelphia twice in two years.
Ingram said he’d served his time for that, and was getting his life on track before his arrest. In jail, he lost his apartment and job, and lost parental rights to his 8-year-old son. The Collingdale resident contracted COVID-19 while incarcerated, he said.
“I can’t get an answer. I’m not hearing anything,” Ingram said. “I’m just here held captive.”
Keir Bradford-Grey, chief of the Defender Association, worries clients are feeling pressure to take unfavorable plea agreements to get out of jail, often without regard to the lasting consequences of a conviction. “Right now, people are going to be faced with really tough choices: If they want their constitutional right to have their day in court, it’s going to take a lot longer.”
The District Attorney’s Office generated 378 plea offers in 30 days as part of an effort to resolve the backlog — but acknowledged many of those cases remain pending.
One defense lawyer said delays in scheduling court dates — particularly in cases that involved probation or parole detainees — had caused some defendants to remain in jail for months after prosecutors had offered deals for immediate parole or drug treatment.
DA Larry Krasner said at this point he’s looking to widespread vaccination as the ultimate solution to the court backlog.
“But there is more that we have been able to do since March that is not getting done,” he said, citing the Supreme Court’s emergency order last year that encouraged the use of videoconferencing and other technology. “Simply put, we can do more. And we look forward to our justice system partners, by which I mean the courts, probation, public defenders and other defense counsel, working together so there is greater creativity and flexibility.”
Although video preliminary hearings are now available, they’re by request only.
Dugan said Municipal Court now has the capacity to do quasi-virtual hearings, with lawyers and the judge in a courtroom, a defendant on video from the jail, and witnesses and police on video from other locations. The court only recently added the ability for witnesses to testify remotely, said court spokesperson Gabriel Roberts.
Dugan said he was “not happy” with how many virtual hearings had taken place, but declined to say why they had not been more widely adopted.
“Judges, we have to follow a code, and it’s not within us to be able to point fingers in public at criminal justice partners,” he said.
Courts around the country grappling with similar backlogs are turning to solutions that Bradford-Grey and others find problematic, like “rocket dockets” in which hundreds of defendants accept plea deals. She’d like to see sentencing alternatives, particularly for those who were arrested on misdemeanors and have stayed out of trouble while awaiting trial.
She said her office was also seeking a way to address the cases of those like Ingram, arrested during protests, with restitution and diversion out of criminal court. “We are just not getting the agreements we were hoping to get right now,” she said. She also noted the racial disparities — 75% of her clients arrested at protests were Black — and what she expected to be scant evidence of wrongdoing.
Ingram said that, though he’d like to be cleared, he’s contemplated taking a plea deal if one is offered.
“At this point, they kind of broke me,” he said. “I just want to get out of here.”