Effort marks the first, of an ongoing review of cash bail
PHILADELPHIA (February 21, 2018) – Philadelphia District Attorney Larry Krasner today announced, effective immediately, that the Philadelphia District Attorney’s Office (DAO) will no longer ask for cash bail for low-level offenses. The new policy marks a decisive step towards making the city’s pre-trial system fairer for the poor and for people of color.
District Attorney Larry Krasner said, “There is absolutely no reason why someone who will show up for court, is not a flight risk, and is no threat to their neighbors and community, needs to sit in jail for days because they can’t post a small amount of bail. It’s simply not fair. We don’t imprison the poor for poverty. This new cash bail policy will not only save the taxpayers money by allowing low-level defendants to maintain their freedom, but it will begin to level the economic and racial playing field in our courtrooms.”
“Through our collaborative efforts under the MacArthur Foundation Safety and Justice Challenge, as well as numerous other initiatives, we as a City are creating a more fair and efficient justice system,” said Philadelphia Mayor Jim Kenney. “DA Krasner’s new policy to recommend against cash bail for low-level offenders is a significant step in that direction. This effort has the potential to reduce collateral consequences for those charged with low level offenses, and represents Philadelphia’s shift towards reducing or eliminating cash bail. We look forward to discussing how these changes will be applied and implemented by the District Attorney’s Office.”
After a review of all the requests for bail associated with lead charges filed in the First Judicial District (FJD) Municipal Courts over the last five years, DA Krasner has instructed Assistant District Attorneys (ADA) in the office to no longer request cash bail for defendants charged with one of the 25 specific charges (a detailed list is attached). These offenses represent approximately half of all lead charges applied over the past five years.
“I see cash bail as a medieval tool that exists in our modern criminal justice system. It’s a relic, and it increases the likelihood of future recidivism by almost nine percent. We in Philadelphia City Council recently passed a resolution about reforming cash bail, so we’re overwhelmingly supportive of the new policy, and I can tell you that I’ll do everything I can to expand fairness in the City of Philadelphia,” said Philadelphia Councilman Curtis Jones, Jr. (4th Council District).
When a defendant is charged with Possession with the Intent to Deliver (PWID) a substance other than marijuana, the DAO will consider the following factors to determine if bail will or will not be requested:
If the weight of the drugs is greater than 2.5g of heroin, 5g of cocaine/crack, 12.5 g of methamphetamine/PCP/amphetamine, or 5g of any other schedule I/II narcotic;
There is evidence of the presence of fentanyl;
The defendant has received two or more bench warrants in the past five years;
The defendant has one or more open PWID, violent felony, or gun-related case; and
The defendant has finished serving a PWID sentence in the last two years, a violent felony in the past five years, or a gun-related case in the past five years.
More than likely, if one or more of the above factors apply, bail requests will then be evaluated on a case by case basis.
In the FJD, and after a defendant is taken into custody, a hearing typically takes place in front of a Bail Commissioner, where the ADA requests a certain level of bail. For these 25 lead charges, nearly one in four defendants received bail between $0 and $10,000, which could keep them in pre-trial custody. Now, one of the following methods will be used:
Released on Recognizance;
Released on Special Conditions (this kind of release involves some pre-arranged communication between the defendant and FJD Pre-Trial Services before trial); or
Signed on Bond (a promise to pay an unsecured bail if the defendant violates their release).
ADAs will continue to have discretion to ask for monetary bail in exceptional circumstances. For example, cases where a defendant is charged with a string of crimes, such as burglaries or thefts, or who have multiple DUIs in a short period of time, may be given cash bail despite the presumption against it. The office’s new policy follows.
Breakdown of Charges no Longer Requiring Cash Bail
Access Device Fraud;
Burglary F2- Not for Overnight Accommodation, No Person Present;
Contraband;
Criminal Mischief;
DUI;
Forgery;
Fraud in Obtaining Food Stamps/Public Assistance;
Identity Theft;
Intentional Possession of a Controlled Substance;
Paraphernalia;
Possession of Marijuana;
Possession with Intent to Deliver (marijuana, 5lbs or under);
Possession with Intent to Deliver (non-marijuana, subject to listed caveats);
Prostitution;
Providing False Identification to Law Enforcement;
Retail Theft;
Resisting Arrest;
Receiving Stolen Property (not graded as F2);
Theft by Deception or False Impression;
Theft by Unlawful Taking (not graded as F2);
Theft from Motor Vehicle (not graded as F2);
Trademark Counterfeiting;
Trespass (non-residential);
Unlawful Purchase of a Controlled Substance (BFP); and
Unauthorized Use of a Motor Vehicle.
Policy Memorandum from the District Attorney
Effective February 21, 2018, the District Attorney will ordinarily no longer ask for cash bail for the following misdemeanors and felonies. All representatives of the District Attorney will be expected to abide by this presumption. Where justice requires, there is discretion to go against this presumption.
The cash bail system is rife with injustice and exacerbates socio-economic and racial inequalities, disproportionately penalizing the poor and people of color. The reforms laid out below represent a decisive step toward ending the use of cash bail and making the pretrial system more just.
All representatives of the District Attorney should presume that they will no longer seek cash bail on the following charges:
(35-780-113-A16 Intentional Possession of a Controlled Substance
(75-3802) DUI
(18-3929) Retail Theft
(35-780-113-A19) Unlawful Purchase of a Controlled Substance (BFP)
(35-780-113-A31) Possession of Marijuana
(18-3921) Theft by Unlawful Taking (not graded as F2)
(18-5902) Prostitution
(18-3925) Receiving Stolen Property (not graded as F2)
(18-3304) Criminal Mischief
(18-4101) Forgery
(18-3502) Burglary F2- Not for Overnight Accommodation, No Person Present
(18-3503) Trespass (non-residential)
(18-3934) Theft from Motor Vehicle (not graded as F2)
(18-3922) Theft by Deception or False Impression
(18-5104) Resisting Arrest
(18-3928) Unauthorized Use of a Motor Vehicle
(35-780-113-A320) Paraphernalia
(18-5123) Contraband
(18-4914) Providing False Identification to Law Enforcement
(62-481) Fraud in Obtaining Foodstamps/Public Assistance
(18-4120) Identity Theft
(18-4119) Trademark Counterfeiting
(18-4106) Access Device Fraud
(35-780-113-A30) PWID-Marijuana (5lbs or under)
Special Conditions for PWID Cases (Other than Marijuana)
Where a defendant is charged with possession with the intent to deliver a substance other than marijuana, the presumption against monetary bail applies, except in any of the following circumstances:
The weight of drugs possessed is greater than:
Heroin: 5g
Cocaine/Crack: 5g
Methamphetamine/PCP/Amphetamine: 5g
Other schedule I/II narcotic: 5g
There is evidence of the presence of fentanyl
The defendant has received two or more bench warrants in the past five years
The defendant has one or more open cases of:
PWID
A violent felony or
VUFA/PIC (gun)
A defendant has finished serving a sentence for:
PWID in the last 2 years
A violent felony in the past 5 years
VUFA or PIC (gun) in the past 5 years
Discretion:
In the above cases where the presumption applies, representatives of the District Attorney should generally recommend R.O.R.
While a presumption against cash bail applies in the above cases, representatives will continue to have discretion to ask for monetary bail where justice requires. For example, cases where a defendant is charged with a string of crimes, such as burglaries or thefts, or who have multiple DUIs in a short period of time, may be given cash bail despite the presumption against it. A significant history of recent flight may also suggest detention.
For all cases not subject to the above policy, representatives of the District Attorney should continue to evaluate bail requests on a case by case basis.
This policy will also apply to bail reduction motions in preliminary hearing and trial rooms, and in Motions Court.
Author: Amaury Abreu
