Meet Bill Penn (a composite of several clients). He is 30 years old, a lifelong resident of Norristown raising two children with his live-in girlfriend. He works 40 hours a week at Acme, earns $9 per hour, and struggles to make ends meet. After getting into a fight with another patron at a bar, Penn was arrested and charged with aggravated assault.

After several hours in holding, the police brought him in front of a TV screen for a preliminary arraignment. He appeared without a lawyer and did not fully understand the proceedings. Immediately after reading the charges, the magisterial district judge (MDJ) informed Penn: "Your bail is set at $10,000. You'll need to post 10%, $1,000, to be released."

When Penn replied that there was no way he could come up with $1,000, the MDJ said, "The charges are serious, you'll have to stay in jail until this is resolved," and abruptly terminated the video conferencing connection. After two months in custody, the charges against Penn were withdrawn.

On any given day, thousands of people like Penn sit in jails across Pennsylvania not because they have been found guilty of any offense but because they are unable to purchase their freedom. Defenders of the cash bail system say, "If he is innocent he will soon be free. If he is guilty, the pretrial detention will count toward his sentence, so there is no problem." However, this sentiment ignores the well-documented fact that people who are held pretrial have a harder time defending against charges, see Megan Stevenson & Sandra Mayson, "Pretrial Detention & Bail, in Reforming Criminal Justice: Pretrial and Trial Processes" 21, 21-22 (Erik Luna ed., 2017). In a study of seven years' worth of Philadelphia court records, researchers found that pretrial detention leads to a 13% increase in the likelihood of being convicted of at least one charge and an increase of 124 days in the length of the maximum incarceration sentence, a 42% increase over the mean, see Megan Stevenson, "Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes," 34 J.L. Econ. & Org. 511, 512-13, 534-535 (2018). This is one reason that Pennsylvania has the highest incarceration rate in the Northeast.

Even a few days of pretrial detention can have devastating consequences. Defendants like Penn often lose their jobs, housing, and access to medication, and are separated from their children. See, e.g., Erika Kates, "Moving Beyond Incarceration for Women in Massachusetts: The Necessity of Bail/Pretrial Reform," Wellesley Centers for Women, 2, 4-5 (2015); Robynn Cox & Sally Wallace, "Identifying the Link Between Food Security and Incarceration," 82 S. Econ. J. 1062, 1074 (2016); Colorado Criminal Defense Institute, "The Reality of Pretrial Detention: Colorado Jail Stories," 6-9 (2015). In Curry v. Yachera, 835 F.3d 373 (3d Cir. 2016), the U.S. Court of Appeals for the Third Circuit wrote about the devastating—but common—impact bail has on poor Pennsylvanians.

Consider plaintiff-appellant Joseph Curry: the maximum sentence he faced for each of the two misdemeanor charges against him was two years. His bail was set at $20,000. Unable to post his bail, Curry was sent to jail and waited there for months for his case to proceed. While imprisoned, he missed the birth of his only child, lost his job, and feared losing his home and vehicle. Ultimately, he pleaded nolo contendere in order to return home.

The court wrote, "the circumstances of this case appear to exemplify what can be described as a flaw in our system of justice—in particular, the inequity bail can create in criminal proceedings." The court went on to describe Pennsylvania's bail system as a "threat to equal justice under the law."

It was not supposed to be this way. Since before the American Revolution, Pennsylvania's Constitution has recognized a broad right to pretrial release. Today, it provides: "All prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great."

Article I, Section 14 "mandates all persons have a right to be released on bail prior to trial in all cases except those" few who are not bailable under the Constitution, as in Commonwealth v. Truesdale, 296 A.2d 829, 831 (Pa. 1972). This enduring fundamental right to pretrial release reflects "the importance of the presumption of innocence; the distaste for the imposition of sanctions prior to trial and conviction; and the desire to give the accused the maximum opportunity to prepare his defense."

The U.S. Supreme Court revised the Rules of Criminal Procedure that govern bail in 1995 to reflect this broad right to pretrial release and de-emphasize the use of cash bail. The rules and Constitution recognize a presumption of release. Judges can set conditions to protect public safety and ensure that the defendant will appear for court, but judges cannot impose conditions just to keep someone locked up.

To this end, the rules: direct judges to first consider release on recognizance before assigning any other condition of release; require judges to consider all relevant information before imposing conditions of release; and prohibit judges from imposing additional conditions, like cash bail, unless the condition is "reasonably necessary" to ensure appearance and compliance with the bail bond. In other words, cash bail cannot be the default condition for release.

However, as is illustrated by Penn's experience, judges often default to setting cash bail and, worse, often set bail based on charge alone, without regard to the other factors in the rules. The MDJ in Penn's case should have asked about and considered Penn's strong community ties (a full-time job, two children and a long-term partner), the fact that he has no record of flight, and whether Penn posed any ongoing threat to the other bar patron. These facts all suggest that cash bail is not necessary to ensure Penn's appearance or compliance with the bail bond.

Moreover, the rules impose additional limits on a judge's ability to impose cash bail. If a judge determines that cash bail is in fact necessary, the judge must consider the "financial ability" of the defendant and only assign a dollar amount that is "reasonable." These requirements reflect the purpose of any condition of release: it is supposed to allow release and ensure the defendant will return to court when ordered.

The MDJ in Penn's case only looked at the offense charged and failed to conduct an individualized assessment of Penn's financial ability or consider the factors enumerated in the rules. The MDJ should not have imposed cash bail that he knew Penn could not afford. This common lack of individualized determination is fundamentally at odds with the Rules of Criminal Procedure.

The routine imposition of unaffordable conditions of bail violates constitutional protections, as well. Due process and equal protection prohibit incarcerating an individual because of their inability to make a financial payment, as in Parrish v. Cliff, 304 A.2d 158 (1973); Tate v. Short, 401 U.S. 395 (1971) and O'Donnell v. Harris County, 892 F.3d 147 (5th Cir. 2018).

When judges set cash bail they know a defendant cannot afford, they effectively detain the defendant because of indigence. Judges may not deny a defendant pretrial release without specific findings that no alternative condition of release can adequately further the commonwealth's interests. Those findings are supposed to follow a full adversarial hearing at which the defendant has counsel and a meaningful opportunity to challenge the reasons for detention. But that almost never happens in Pennsylvania.

The American Civil Liberties Union of Pennsylvania seeks to bring bail setting practices across the commonwealth into alignment with the Rules of Criminal Procedure and the Pennsylvania Constitution. If bail was set according to the rules and defendants' constitutional rights honored, pretrial detention would be rare and our jails would be less crowded.

Hayden Nelson-Major is an Independence Foundation Fellow at the American Civil Liberties Union of Pennsylvania. Her work is focused on reducing pretrial detention in Pennsylvania.