At a printing studio in southwest Philadelphia, Faith Bartley pulled a squeegee over a screen with quiet concentration, then pried away a piece of paper sticky with fresh ink. She had to get it right: This print could mean the difference between incarceration and freedom for a woman locked up on bail in a city jail.
Bartley, 55, a member of the People’s Paper Co-op, was making posters to sell in hopes of helping raise $100,000 for the Philadelphia Community Bail Fund and the third annual Black Mama’s Bailout on Sunday, when they’ll bail as many women as they can out of Philadelphia’s city jail. The prints, designed by well-known artists in collaboration with the co-op’s formerly incarcerated members, had already raised more than $10,000 in just a few days.
“Women are the queen bees," she said. “They keep the family together. When you lock up women, you lock up the whole community.” Bartley added that she knows the stakes well: A former drug user and dealer, she was herself locked up on $260,000 bail a decade ago, and lost her apartment, her job and four months with her mother, who was dying of cancer, before she was acquitted.
Advocates like Bartley are willing to do this work for as long as it takes — but they are hoping it won’t be much longer. As public pressure has mounted, officials have expressed support for ending the use of money bail in Philadelphia, in a growing recognition that it results in unequal outcomes for those with the fewest resources. However, they have expressed radically different visions for that process.
The leadership of the city court system, known as the First Judicial District or FJD, has for several years charted a course that relies on a risk-assessment tool, a sophisticated algorithm that inputs dozens of pieces of information about a defendant and spits out his risk level. Those who are not risky could be released; the rest would go before a judge to determine whether they must be detained until trial.
“The hope will be that it will take away implicit and explicit biases,” FJD President Judge Idee Fox told City Council members at recent budget hearings. The court is convening a research advisory council to ensure the tool is accurate and effective.
But critics worry it will merely perpetuate the biases already baked into the justice system by incorporating factors such as age at first arrest or previous jail stays.
That’s why Philadelphia’s chief public defender, Keir Bradford-Grey, has pitched the FJD, the District Attorney and City Council on an entirely different proposal: a way to eliminate money bail in Philadelphia without using a risk-assessment tool. Under this process, most defendants charged with misdemeanors would be arrested but, instead of going through a bail hearing, would receive a summons to appear in court. According to Bradford-Grey, Philadelphia is the only county in the state that does not already use the summons process for lower-level offenses.
Those held on more serious charges would go before a magistrate for a preliminary arraignment hearing where money bail would not even be on the table. Instead, the magistrate could decide to release the defendant on his own recognizance or impose other conditions, perhaps phone reporting or electronic monitoring. Only in cases where the defendant is a flight risk or a perceived danger to the community would the District Attorney file a detention motion — which would result in a release-determination hearing, where a judge could decide to detain the defendant or to set high bail.
“This system allows for individualized determinations and ends the practice of incarcerating people simply because they cannot afford bail," Bradford-Grey said in her testimony to City Council.
She said this shift is necessary given the impacts of money bail on her clients. Researchers have found that, in Philadelphia, those detained pretrial are 13 percent more likely to be convicted than those who are released, and serve sentences 42 percent longer. Black defendants are 25 percent more likely than white ones to remain incarcerated until trial — a disparity that widens even more when bail amounts are higher.
The ACLU of Pennsylvania is also suing the FJD, arguing that its current practices for setting bail are illegal. The organization cited its observations in more than 2,000 bail hearings, in which it appeared magistrates did not generally consider defendants’ ability to pay before assigning money bail. The hearings, conducted by video, lasted just two or three minutes, and lawyers typically warned defendants not to speak at all to avoid saying anything incriminating.
The FJD and the public defender both declined to comment on their dueling blueprints for Philadelphia’s pretrial architecture. District Attorney Larry Krasner told City Council, “We are very supportive of the public defender’s efforts to change pretrial," but did not elaborate further.
Either path could result in many more people going free until their cases are complete, as recent reforms have shown that many more defendants will be released if given an individualized hearing in front of a judge. After the FJD started holding early bail review hearings for those charged with nonviolent misdemeanors and held on bail up to $50,000, 87 percent of defendants were released on their own recognizance, and most of them showed up for court. Now, the FJD has expanded those hearings to include reviews of bail up to $100,000.
But many reform advocates are adamantly opposed to any use of a risk-assessment algorithm, citing studies that have found such algorithms are liable to flag African-American defendants as higher risk than white defendants with similar or even far worse criminal histories. Last year, more than a hundred justice reform and civil-rights groups signed a joint statement of concern. In April, the Partnership for AI, a consortium of tech giants including Facebook, Google, Apple and Microsoft, released its own analysis, finding “serious shortcomings” in risk-assessment for pretrial detention.
In Philadelphia, groups affiliated with the #No215Jail Coalition had advocated against a risk assessment and, more recently, were lobbying the FJD for transparency in any algorithm it does use. According to Hannah Sassaman, an organizer involved in that coalition, the FJD has told the group it will no longer be discussing the risk assessment with them.