Bail Is for the Rich

Nathaniel Hayes spent 113 days in jail because he didn't have $1,010.

by Holly Otterbein

Evan M. Lopez

Nathaniel Hayes vowed to never leave his gun alone at home with his wife or kids.

So when he set out for a late-night cruise on his black mountain bike on June 16, 2009, he tucked the weapon into his front pocket. A few blocks later, it was no longer his: At 23rd and Somerset streets, police stopped and frisked him. His public defender would later argue that Hayes, a soft-spoken, 24-year-old black man hailing from the west side of North Philadelphia, was "subjected to a stop and frisk on less than reasonable suspicion," arrested illegally and searched without a warrant. (There is nothing in court records indicating why the police stopped him that night.)

But none of that mattered. Hayes didn't have a license for his gun, so the police arrested him on two charges: carrying a firearm without a license, a felony; and carrying said firearm in public, a misdemeanor. Hayes says he simply never got around to obtaining a license, and that he bought a gun only to protect his wife and children in a neighborhood that "affects the way you got to go about things."

Nearly 20 hours later, Hayes was arraigned. If magistrate Francis Rebstock had followed the city's bail guidelines, Hayes would have been released immediately and required to call an automated phone system twice a week until his trial.

Instead, Restock set his bail at $10,000. The magistrate wrote that he deviated from the guidelines because Hayes had a prior record and a failure-to-appear history, even though the guidelines take this into account. Hayes' previous case, in which he was charged with marijuana possession and possession with the intent to manufacture or deliver, had been dropped and the bench warrant against him rescinded.

Because Philadelphia defendants have to pay 10 percent of their total bail amount plus a $10 fee to be released, Hayes needed $1,010 to go home.

But he didn't have $1,010. So he spent the next 113 days behind bars.

As his mud-stained Timberlands and farm-boy physique suggest, Hayes is a carpenter. But he'd made just $6,000 to that point in 2009 fixing up homes and performing a patchwork of other jobs. To make matters worse, that meager sum was the sole means of support for himself, his wife and his then-5-year-old daughter and 2-year-old son.

He turned to friends and relatives for help raising bail money, to no avail.

"Nobody got $1,000," he says. "Everybody's struggling."

While in jail, Hayes missed his daughter's first day of kindergarten. His family, having lost its provider, was forced to move in with Hayes' mother-in-law. Several of his carpentry contacts moved out of town. Some vanished altogether.

Then, on Oct. 7, 2009, his four-month-long imprisonment finally reached its dénouement. Judge Ellen Ceisler reduced his bail to $1,000, which meant he had to pay $110 to get out. (Judges often lower bails for defendants who've sat in jail for long periods of time prior to trial, say defense lawyers interviewed for this story. Interestingly, there are no mandated guidelines for reducing bail; that decision is the sole discretion of the presiding judge.) He did, and was set free.

It taught Hayes a lesson about justice in the city.

"I thought you were innocent until proven guilty," he says. "Not in Philadelphia's court system. If you can't pay no bail, you're guilty until proven innocent."

In December, Hayes pleaded guilty under a plea-bargain agreement to a lesser charge, and was sentenced to four years probation — but no jail time, and no credit for time served.

Stuart Schuman, supervising attorney for the municipal court unit at the Defender Association of Philadelphia, says it's not uncommon for Philadelphia defendants to spend more time in jail before they're convicted than afterward. Schuman, who did not handle Hayes' case, sees many in which a defendant is "held in jail for some period of time because they don't have $100 or $200 to post bail. Often their charges are later dismissed in court, or properly result in a sentence of probation."

There are two ways to think about the months that Hayes spent behind bars. The first is that unlicensed gun owners seriously threaten public safety, and should be prosecuted to the full extent of the law. The other is more knotty: For the entire duration of his jail time, Hayes was innocent in the eyes of the law. And few bail magistrates, the judicial officers who set bail amounts, expect defendants to rot in jail because they can't afford $1,010; professional criminals, as well as anyone in the middle and upper classes, can easily round up the money.

In the past year, newspapers, the state Supreme Court and even the Pennsylvania Senate have scrutinized Philadelphia's court system — its bail system in particular. But the discourse thus far has centered on the Clerk of Quarter Sessions (CQS) office, fugitives and forfeited bail.

With the spotlights on, perhaps it's time to also think about defendants like Hayes: poor people who languish in jail because they can't afford small amounts of bail. A careful look at the city's atrophied bail guidelines is also in order. Or maybe — just maybe — the city should consider ditching a system that penalizes the penniless for their poverty, like Washington, D.C., and the federal government have.

Neal Santos JAIL FOR THE POOR: If Nathaniel Hayes had had $1,010 in the bank, he wouldn't have spent four months in jail on a firearms charge, for which he was ultimately sentenced to probation. But he didn't, so he did.

It's important to establish this up front: Cash bail does not make the city money. In fact, it does the opposite.

Take Hayes, for instance: At $95 a day, the price of housing an inmate, his 113-day-long imprisonment cost $10,735. Though he paid $110 to finally leave jail, he got all but $40 — 3 percent of his total bail amount plus a $10 bond fee — back when he showed up for his Dec. 15 trial.

The city reaped just $40 from the transaction.

On June 30, 2009, a typical day in the city's Prison System, the Philadelphia Research Initiative (PRI) found that inmates being held pretrial accounted for 57 percent of the city's crowded jail population. (Robert Eskind, the Prison System's spokesman, argues that PRI's numbers are wrong, and says the correct overall figure is closer to 80 percent.) Philly spent $241 million on its jails last year; though the Prison System doesn't track how much pretrial defendants cost the city, it's safe to say they account for tens of millions of dollars, if not more.

Then there's the cost of collecting bail and keeping records of who owes the city what. Until earlier this year, CQS had that job. But after The Philadelphia Inquirer revealed that the city was owed $1 billion in uncollected, forfeited bail and had 47,000 fugitive defendants on the loose, the First Judicial District absorbed most of the row office's responsibilities. The courts will take over the office completely if — or, more precisely, when — City Council votes to abolish CQS. Legislation to do so is in committee.

It's unclear, though, whether eliminating the office will actually save the city money. CQS' 2009 budget was $4.9 million. Under City Council's proposal, the courts would receive an extra $4.5 million for handling CQS' duties; however, Pamela Dembe, president judge of the Court of Common Pleas, is pushing to keep the entire $4.9 million.

Compare that to how much bail money came into CQS in 2009: In bail poundage — a delightfully antiquated term for the $30 Hayes paid the city after his refund — CQS collected $3.6 million. In forfeited bail, the office took in an additional $268,043; in bond fees, it took in $296,750 more. In total, CQS collected $4.1 million in bail fees — not enough to pay for itself (though it does collect fees for other duties unrelated to bail).

The city hopes the court will be better able to track down CQS' missing $1 billion. But there's no guarantee that will happen. John S. Goldkamp, a criminologist at Temple University, says much of the money is uncollected because it is uncollectible — the fugitives are simply too poor to pay.

"In the Philadelphia justice system, there are only the poor and the very poor," he says. "What makes them think they're going to get money from these people?"

Dembe echoes Goldkamp's concerns. Asked if most of the $1 billion is uncollectible, she chuckles. "Oh, absolutely!" she says. "But we're thinking if 10 percent of that $1 billion is collectible, that's a good thing. An awful lot of this involves people who don't have money or assets."

A good portion of the people racking up costs to the city are doing so because they can't pay very small amounts of bail. In 2008, City Paper interviewed a prisoner named Gary T. Hall, who served 80 days because he lacked $160 to post bail after being arrested for trespassing [Cover Story, "Locked Down," Tom Namako, June 18, 2008]. Several addicts, who spoke on the condition of anonymity, told of sitting in jail for weeks on small-time drug possession charges, because they didn't have a couple hundred dollars to post bail. The mentally ill are frequently incarcerated for dearth of money, too, say social workers, public defenders and Prison System employees.

A statistical snapshot shows how common these anecdotes are: On Feb. 2 of this year, 2,002 of the city's 8,000 inmates could have been released on bail immediately, meaning they didn't have any court dates or fines that would have kept them locked up after paying bail. Of these 2,002 inmates, 711 needed $1,010 or less to post bail. Of them, 299 needed between $210 and $510. Twenty-five would've been released if they paid between $60 and $110. One owed the city $60 or less.

If cash bail doesn't make the city money, what's its purpose?

Its raison d'être is twofold, and beautifully simple: Guarantee that a defendant shows up for court, and protect the community from dangerous people.

But empirical research, dating back to the 1950s, suggests that it doesn't work: Studies show that manipulating dollar amounts doesn't affect the likelihood that a defendant will show up for trial or ensure the community's safety. In part, this is because professional criminals often write off any bail sum as a cost to the company, and then skip court. Ever since those studies were conducted, scholars have pressed judges to halt, or at least limit, their use of bail and instead release defendants on their own recognizance or lock them up until trial if they're too parlous — often to no avail.

So if monetary bail doesn't work, what does?

There's evidence that the answer lies in alternatives to pretrial detainment. Instead of setting monetary bail and thus holding a large amount of poor people, some judicial systems, including federal courts and Washington, D.C., opt to release defendants and provide them with various services: mental health care for the sick, substance-abuse treatment centers for the addicted and Breathalyzer tests for defendants who've been charged with a DUI, among other things.

Under the Federal Bail Reform Act of 1984, federal magistrates cannot set amounts of bail that are beyond a defendant's means. The federal judiciary, meanwhile, is chock-full of these alternatives, including drug abuse programs, mental health treatment and halfway houses.

According to a 2009 study of the federal court system for Luminosity Inc., an organization that consults on criminal justice matters, these alternatives deliver: In an analysis of defendants deemed medium- and high-level risks to the courts and community, those released with alternatives were more likely to appear for trial and less likely to commit crimes in the meantime, as compared to those who were released without them. One alternative program was especially successful: High-risk defendants were 20 percent more likely to appear for trial if they were released into the custody of a responsible third party, sometimes a family member.

Washington, D.C., restricts the use of monetary bail by law. And it, too, has several choices beyond pretrial incarceration, including an electronic monitoring system, halfway houses and drug testing programs. In 2009, 85 percent of defendants in D.C. were released on their own recognizance or with alternative services, while only 15 percent had bail set or were held without bail. The city's failure-to-appear rate was 12 percent.

Compare that to Philadelphia: Last year, 60 percent of Philly's defendants had bail set, while 40 percent were released on their own recognizance and fewer than 1 percent were held without bail. According to the Philadelphia Research Initiative, 30 percent of the city's defendants failed to show to court — two and a half times as many as Washington, D.C.

Alternatives to pretrial detention are scant in Philadelphia. Electronic monitoring systems are mostly reserved for people already charged with crimes. Philly has no day reporting centers — rigorous supervision programs that provide pretrial defendants with educational services, job training and mental health care. Except for releasing a defendant on his or her own recognizance or with a few minor stipulations, there are "no alternatives to cash bail right at arraignment court," says Schuman, of the Defender Association.

Neal Santos REFORMER: In the 1980s, Temple criminologist John S. Goldkamp authored the city's first-of-its-kind bail guidelines. Now, he says, the city should severely curtail its use of cash bail.

Not long ago, scholars considered Philadelphia "a model of bail reform and exemplary pretrial services that other cities sought to emulate," says Goldkamp.

In the 1970s, Philly installed one of the country's top pretrial services agencies. Fewer defendants stayed in jail because they couldn't afford bail. The city's courts had even put corrupt, ineffective bail bondsmen out of business, a feat achieved at the time only by Oregon and Kentucky. Then, in the early '80s, another sweeping reform hit the city: Goldkamp, a Temple professor since 1978, created the country's first bail guidelines, which the city adopted.

Goldkamp, now in his 60s, is thinking about something that has been on his mind for the past 40 years, since he worked as a correctional officer in Vermont prisons in his 20s. "I didn't understand how you pay money and you go home, or you don't have the money and you sit in jail," he says. "What does cash have to do with it?"

That question, coupled with his animadversion of the monetary bail system, prompted his development of bail guidelines. Much like sentencing guidelines, they delineate what arraignment decisions are most appropriate for what defendants. But the guidelines never got quite as far as he'd hoped: Judges entertained the possibility of eliminating cash bail altogether, but dismissed it as "politically unfeasible" and "too radical."

Still, the guidelines ensured greater fairness. Before their development, a study by Goldkamp found that similar defendants charged with similar crimes often paid different bails; in fact, there were alarming disparities even in magistrates' own decisions over time. Put another way, if a magistrate on Monday stuck you with $5,000 bail for the possession of marijuana, it was unlikely that a different magistrate on Tuesday would do the same.

When Goldkamp showed magistrates his results, they were dismayed by the entropy, and signed on to help formulate the guidelines. In a subsequent analysis of thousands of Philadelphia defendants, Goldkamp along with other scholars and judges sought to determine who was likely to flee or pose a danger to the community, and how to best handle them. Myriad factors were predictive, it turned out: whether the defendant had a job, a failure-to-appear history or a phone, for example.

They had, in effect, made arraignment decisions a science.

The Philadelphia Municipal Court adopted the guidelines as official policy in 1982, though the courts never mandated that magistrates follow them all the time. The guidelines were forgotten a few years later, however, when the court shifted its focus to the city's prison overcrowding crisis. They were revived in 1995, and this hindmost version utilized not only the opinions of judges, but also of representatives from nearly every arm of the system: the Municipal Court, the Court of Common Pleas, the Defender Association of Philadelphia, the District Attorney and the Pretrial Services Division.

For a while, they seemed to work. Prior to the update in 1995, there was an average of 470 failure-to-appear bench warrants issued each week. But between 1996 and 1998, when the guidelines were followed closely, the average number of weekly bench warrants dropped to about 348, a 26 percent decrease. And public safety didn't seem to suffer for it.

Today, however, the bail guidelines have withered.

According to a 2006 analysis by Goldkamp — the most recent data available — magistrates currently follow them only half the time. And when magistrates deviate from the guidelines, they often opt for higher bail amounts. With this comes entropy: According to the 2006 study, Philadelphia magistrates set different amounts of bail for similar defendants charged with similar crimes, just like they did in the late '70s.

"It puts us right back where we were," says Goldkamp. "To the good old days."

Magistrates and judges say they overlook the guidelines because they're outdated. Marsha Neifield, president judge of the Philadelphia Municipal Court, explains, "There's an emphasis on straw purchases of guns by [District Attorney Seth Williams] now," which the guidelines don't take into account.

Of course, there's nothing stopping the court system from updating the guidelines; it did so after they were first adopted. In 2006, in fact, Goldkamp called for them to be updated in a report on the city's prison overcrowding crisis. He was ignored.

Asked if the guidelines will be updated, Neifield and Deputy Mayor for Public Safety Everett Gillison say they're not sure. "Right now we're looking into whether or not we should review them," says Neifield.

In fits and starts, the city is reducing its use of monetary bail.

The District Attorney's decision to treat the possession of small amounts of marijuana as a summary offense will lead to fewer pretrial defendants going to jail. Beginning in July, a pilot program will divert some nonviolent defendants charged with misdemeanors in the 12th and 19th Police Districts out of the court system — they'll be given community service. If they complete it, their cases will be dismissed.

HALF OFF DEPOT

Why live life at full price?

Widespread reform, though, seems distant.

The abolition of monetary bail would require system-wide support, which doesn't exist. Asked if the elimination of cash bail is a possibility for the city, Prison System spokesman Eskind replies, "And replace it with what?"

Neifield responds enigmatically, saying the courts are currently reviewing their bail practices, and "everything is on the table for consideration." Gillison says he favors a multifarious approach that includes the use of monetary bail, alternatives to pretrial detainment and even bail bondsmen — despite the fact that they've been proven ineffective in Philadelphia and elsewhere. In the 1970s, the city put bondsmen out of business because there were 4,324 defendant fugitives on the loose, and they were responsible for putting the city $1 million in the hole. Now, the courts effectively act as bail bondsmen.

There are some hints that bail bondsmen are seeking an invite back to the city. Though City Council spokesman Tony Radwanski denies that it's been approached by the industry, Goldkamp says a bail bondsman contacted him after the Inquirer reported that there were 47,000 fugitive defendants on the streets. Timothy Murray, executive director of the Pretrial Justice Institute, says he's heard similar rumblings.

As the city meditates on its next move, destitute defendants continue to suffer.

Schuman relates the story of a 50-year-old lifelong Philly resident with no prior criminal record who got into a mêlée with her daughter in February of this year. This older woman, whom Schuman doesn't name, was charged with simple assault, a misdemeanor, and though the guidelines called for her to be released on her own recognizance, the magistrate stuck her with $1,000 bail. She had to pay $110 to get out of jail.

She didn't have $110, so she had to borrow it from someone else. As a result, she was unable to pay several of her bills; her phone was disconnected.

As for her case? On June 15, it was dismissed.

(holly.otterbein@citypaper.net)