Ending Cash Bail in Pennsylvania — My Statement to the House Democratic Policy Committee
Yesterday I provided testimony to the Pennsylvania House Democratic Policy Committee about ending cash bail in Pennsylvania. This was at the request of State Representative Summer Lee, who has sponsored legislation to end cash bail in Pennsylvania. Other speakers included Philadelphia District Attorney Larry Krasner, Allegheny County Councilwoman At-Large Bethany Hallam, a representative from the ACLU of PA, and persons who have been negatively impacted by the practice of imposing cash bail amounts that are inconsistent with ability-to-pay. Below is a link to YouTube video of the Hearing/Panel, and my written statement to the Committee (from (1:07:50–1:13:59).
Thank you for the privilege of appearing before the Pennsylvania House Democratic Policy Committee, along with so many esteemed stakeholders, to address an issue tremendous public importance: the elimination of cash bail in Pennsylvania. My name is Mikhail Pappas and I serve the public as a magisterial district judge, representing eight (8) neighborhoods in the East End of the City of Pittsburgh. As part of my position, I preside as an issuing authority in bail matters arising from throughout Allegheny County.
While I am a proud member of the Special Court Judge’s Association of Pennsylvania, and I am active as a leader and member of a number of community based organizations in the southwestern Pennsylvania region, today I am here on behalf of myself, and consistent with the ethical rules to which I am faithfully bound, on behalf of measures to improve the law, the legal system, and the administration of justice in Pennsylvania. I am not here to promote or endorse any one particular legislative proposal or another. I am here to share the insights that I have acquired as a practicing attorney and as a judge who has decided well over one thousand (1,000) bail matters.
My message today is simple: I believe we can safely eliminate cash bail in Pennsylvania. I believe we can best do this not by limiting judicial discretion, or binding judges to bail schedules and risk assessment algorithms. As William O. Douglas, a Justice of the United States Supreme Court for 36-years once said, “The law is not a series of calculating machines where definitions and answers come tumbling out when the right levers are pushed.” Rather, I believe we can safely eliminate cash bail by working together with the judiciary, system stakeholders, and community stakeholders to expand access more effective, restorative alternatives.
Some would say that a police encounter presents the first opportunity for diversion from the criminal justice system. Some would say that diversion begins even sooner than this with prevention through access to affordable housing, high quality public education, equal opportunities to earn a living wage, and universal healthcare. Even if we assume that both of these propositions are true, when a person has been accused of a crime, arrested and detained, temporarily deprived of their liberty while remaining cloaked in the presumption of innocence, there is something awesomely powerful, purposeful and vital to our democracy about what happens next: they are taken before a judge.
They are taken before a disinterested arbiter of justice — an independent fact finder who decides not from the clamor of the corner but from the sanctity of a calm courtroom. It is paramount to preserve the integrity of that moment by ensuring that the judge has an abundance of diversionary supports and options available. The judge is tasked with striking a delicate balance: protecting the fundamental right of the accused to pretrial release, while at the same time protecting the community and alleged victims from risk of harm. This requires that the judge make a highly fact sensitive inquiry into the individual characteristics of the accused and the circumstances surrounding their arrest. And it requires that upon completion of that inquiry, the judge have the means to craft conditions that are narrowly tailored for each individual case.
One can imagine how a rudimentary tool like cash bail would make this an exceedingly challenging task. For instance, no matter how refined an inquiry the judge undertake, it is most likely going to be the case that conditioning a person’s release on their payment of a sum of money will guarantee little more than prolonged incarceration. This is because about 80% of people who are accused of a crime are poor enough to qualify for the services of a public defender, which means that arguably, 80% of people who are accused of a crime do not have the ability to pay any amount in exchange for their release. As I am sure others will point out today, this raises serious due process, equal protection, and ultimately public safety concerns.
I ask myself, what is the message that we as a system send to the public when we rely on such undiscerning, potentially exploitive devices? Are we saying that even if we see you we cannot reach you; are we saying that even though we must protect you we are yet to figure out how? We all know that the public is ready for us to do better. From East Liberty to Ross Township, from Swissvale to South Fayette and everywhere in between, the vast majority of people agree that access to justice through our courts should not depend on what’s in one’s wallet, purse, or bank account.
I would like to briefly conclude with an example. It is not uncommon for a person with disability like autism spectrum disorder, or a person suffering from drug addition, or a person with a chronic mental illness, to appear in arraignment court for a bail hearing. Oftentimes when this happens, it would seem that but for some combination of the person’s present circumstances and their condition, they would be eligible for pretrial release.
But here’s the thing: it is not their condition, it is ours. More specifically, it is the conditions of release that we do not yet have, that we have not yet developed, but that would be narrowly tailored to fit the individual circumstances of such vulnerable persons and ensuring their immediate safe release from incarceration. That, to me, is our challenge. We need to stop blaming people for things that are beyond their control, and start taking responsibly for things that are entrusted buy the public to be within ours, as leaders, as system stakeholders, and as community stakeholders.
We can safely eliminate cash bail in Pennsylvania by ensuring that judges have an abundance of diversionary supports and options available at that critical moment when conditions of bail initially are set. Thank you.