Broken bail process fuels fugitive mayhem

By John S. Goldkamp

This week's Inquirer series on criminal justice raises an issue that, although seldom talked about, looms large in the local system: fugitive defendants.

Ranging from 40,000 to 60,000, the "fugitive caseload" is made up of criminal defendants who are released on bail after their arrests, but fail to show up in court. They walk away from the system, and bench warrants are issued for their reapprehension - which may occur sooner, later, or never.

The causes of the billion-dollar fugitive caseload are complex. Whether the fugitives fail to show up on purpose or by accident - out of confusion or disorganization, for example - can be debated. But our research over the years suggests that the hapless defendants are greatly outnumbered by the intentional fugitives.

Like the "don't snitch" phenomenon, "fugitivity" may be tied to a prevailing culture of resistance in crime-ridden communities. By generating fugitives in such numbers, the justice system teaches defendants a lesson of reverse deterrence: there is no consequence.

A relatively small proportion of the fugitive caseload is made up of the worst offenders - rapists, murderers, etc. From 30 percent to 40 percent is a mix of medium-threat defendants. All of the first and part of the second group require targeted enforcement strategies on a larger scale.

Yet some of the medium category plus another 30 percent to 40 percent of the total fugitive caseload is made up of drug-related cases, involving many defendants with addiction and mental-health issues. These people are not only failing to appear in court and meet their financial obligations, but are also failing to attend needed treatment and support programs.

The harm done by the billion-dollar fugitive caseload is serious. Many of these are defendants who flagrantly disregard the authority of the judicial system and do damage to the reputation of our system's presumption of innocence. They return to the streets to continue to prey upon the neighborhoods they were removed from. They contribute mightily to citizens' perceptions that serious offenders can scoff at the system and continue doing whatever they were doing before they were arrested.

The fugitives also create a logistical nightmare by being absent when their cases are scheduled, contributing to a growing backlog of unresolved cases. When they finally are rearrested, they have more than one intertwined criminal matter to be sorted out. At this point, if all of the city's fugitives were arrested and had their cases adjudicated, they would fully occupy the Philadelphia court system for two to three years - not counting any new cases during that time.

What's the cure? As with many serious maladies, there may not be an outright cure. The justice system, after all, deals with the most unpredictable and problematic of human behaviors: crime. But there is much that can be done to more effectively manage the problems that lead to these straits.

One key strategy involves moving away from a fundamentally cash-driven bail and pretrial release system. Instead of adding up the money owed, much of which is essentially uncollectible, we should focus on how best to achieve the fundamental purposes of pretrial release and detention decisions: ensuring court appearances, public safety, and the integrity of the judicial system.

Philadelphia's pretrial-release guidelines need to be reviewed in light of what the American Bar Association considers the best current practices. This may lead to the adoption of procedures like those in the District of Columbia and federal jurisdictions, which don't use financial bail to determine pretrial detention and release.

An improved pretrial-release system would move closer to making decisions about release and confinement based on the characteristics of the defendants. Cash bail should be relegated to the small number of cases in which it will serve the constitutional purposes of restraining defendants to ensure their appearance in court or prevent harm to the community. The most risky defendants should be detained, but with all due-process protections, including the right to a speedy trial and to appeal their detention.

Those who don't need confinement to meet their obligations - or who simply do not pose that much risk, like most drug defendants - should not be jailed. Drug-addicted defendants should go to treatment. Mentally ill defendants should be directed to appropriate support services.

The selective use of confinement is critical to the system. Crowded facilities undermine the message that, although defendants may be set free pending adjudication, there are clear consequences if they break the rules.

If we stop using dollars as the core vocabulary of our pretrial process, we will have a better chance of reducing the worrisome billion-dollar fugitive backlog. Then we can target strong enforcement initiatives to the fugitives we should be worrying about most.