Last year, we released a report about the misuse of cash bail across the commonwealth. Broken Rules: How Pennsylvania Courts Use Cash Bail to Incarcerate People Before Trial examined bail data from 2016-17 (the most recent data available) in all 67 Pennsylvania counties. The report uncovered an epidemic of magisterial district judges (MDJs) setting unaffordable cash bail that led to the pretrial incarceration of countless Pennsylvanians.
To continue to provide support for courts, advocates, journalists, and others, we have launched BrokenRules.org, with interactive visualizations for all the data featured in the Broken Rules report.
We hope that by making the data from our report publicly accessible, this website will empower diverse stakeholders with knowledge about bail in Pennsylvania.
The report and our website’s corresponding data visualizations show a disturbing trend: MDJs too often use cash bail as a way to put people in pretrial detention.
In principle, and by law, bail is intended to be a way to ensure pretrial release. But in practice, MDJs use cash bail to jail people pretrial. The Pennsylvania Constitution and Rules of Criminal Procedure protect the fundamental right to pretrial liberty. MDJs break these rules when they assign cash bail in cases where a person is neither a flight risk nor a danger to themselves or others. They also break those rules if they fail to provide a careful, individualized assessment of the person they are assigning cash bail.
We found that MDJs routinely set bail in amounts too high for people to afford. More than half of the people assigned cash bail in our dataset did not post it and remained incarcerated.
We also found evidence that some counties rarely assign release on recognizance (ROR) and instead favor the use of cash bail. ROR is the least restrictive type of bail. It’s also the type of bail most aligned with the constitutional principle that a person is innocent until proven guilty. But across all cases we reviewed for this report, only about one in five people were released on recognizance. That number is far too low.
Our data also showed that, like so much of the criminal legal system, cash bail is rife with racial disparities. Among Black people accused of a crime, 55.2% are assigned cash bail. Among white people accused of a crime, 38.5% are assigned cash bail. Black defendants are also assigned higher amounts of bail than their white counterparts. On average, Black defendants are assigned bail that is $12,866 higher than white defendants. This statewide pattern persists in each of Pennsylvania’s 67 counties.
Pretrial incarceration can be crushing. After just a few days in jail, a person can lose their job, access to necessary medical care, custody of their children, and even their homes. Studies have also found that pretrial detention leads to a higher likelihood of conviction and lengthier sentences. That means that the misuse and overuse of cash bail actually leads to an uptick in crime.
Remember, bail data is not easily accessible to the general public. A lack of transparency keeps the behavior of MDJs hidden from public view. The ACLU of Pennsylvania produced the Broken Rules report, and now this new data visualization website, in an effort to make the system more transparent.
What we do know is the following: MDJs must follow the law and stop setting unaffordable cash bail. The Administrative Office of Pennsylvania Courts must promote transparency by analyzing bail data on a regular basis. President judges must exercise supervisory authority over the MDJs whom they oversee. Finally, courts and jails must work together to install safeguards that guarantee no person is incarcerated only because they are unable to pay bail.
Unaffordable cash bail is a statewide crisis. Across the commonwealth —in counties blue and red, urban and rural— MDJs systematically set bail that keeps people in jail because they cannot afford to pay it, often in violation of the law. It’s time to right these wrongs.