WHEREAS, the United States Constitution guarantees due process and equal protection under the law for all people in the United States, and the Constitution of the Commonwealth of Pennsylvania ensures that all individuals have the equal right to due process; and
WHEREAS, supporting due process rights and equal access to the justice system upholds the Philadelphia Bar Association’s mission of fostering understanding of, involvement in, and access to the justice system; and
WHEREAS, the principle that an individual accused of a crime is presumed innocent until proven guilty is a bedrock principal of our criminal justice system; and
WHEREAS, the ability to stay in the community pending criminal proceedings is vital for a person’s access to justice and due process rights, where studies have shown that pretrial detention significantly increases the probability of conviction, primarily through an increase in guilty pleas,1 and results in a longer sentence length;2 and
WHEREAS, in one study, the typical defendant earned less than $7,000 a year prior to arrest, likely explaining why less than 50 percent of defendants are able to post bail even when it is set at $5,000 or less,3 and therefore the ability to post bail particularly impacts poor and indigent pretrial detainees, who are presumed innocent until proven guilty; and
WHEREAS, during the COVID-19 pandemic, people detained and incarcerated in jails, prisons, and immigration detention centers face higher risks of contracting COVID-19, and higher numbers of people in detention also place greater burdens on the jail, prison, or immigration detention center, both financially and operationally; and
WHEREAS, in the Philadelphia Department of Prisons, over 90 percent of the people incarcerated are pretrial and currently has an incarcerated population of about 4500 people; and
WHEREAS, incarceration, even as a pre-trial detainee, often results in loss of employment, termination of public benefits, loss of housing, inability to pay child support, disruption of custody arrangements,4 and where over half of people who cannot make bail are parents, often of minor children,5 incarceration also detrimentally impacts children and families;6 and
WHEREAS, the United States has a long history of organized bail funds over the past 100 years, and currently there are over 90 community bail funds across the United States, with eight (8) bail funds (six pretrial and two 2 immigration funds) spread across Pennsylvania in locations such as Dauphin County, Lancaster County, Montgomery County, and Pittsburgh, with at least two (2) in Philadelphia; and
WHEREAS, modeled after families, churches, and friends collecting money to post bail, community bail funds are usually nonprofit and volunteer-driven charitable organizations that collect donations from community members to post monetary bail for people detained before their trials, generally for those who cannot afford to post bail; and
WHEREAS, numerous studies have shown those released on their own recognizance return for trial at the same or better rates than those out on cash bail;7 and
WHEREAS, community bail funds have no impact on the determination of the amount of bail, which is set by an independent determination by the Court; and
WHEREAS, community bail funds do not decrease the rate of people appearing for court, and as an example, the Freedom Fund has had 98 percent of defendants making their court appearances;8
WHEREAS, House Bill No. 2046, Printer’s No. 2413 (“HB 2046”) would amend 42 Pa.C.S. § 5741 to change the definition of “bail bondsman,” “professional bondsman,” and “surety bondsman” to include nonprofit community bail funds, and therefore would require community bail funds to be licensed as professional bail bondsman; and
WHEREAS, while the amendments may appear neutral, the requirements would have a severe, negative impact community bail funds and likely restrict or prohibit their ability to operate; and
WHEREAS, HB 2046 would require community bail funds to maintain a physical office in every county where the fund would post bail, which would be cost prohibitive for many non-profit bail funds and unnecessary in a time where much activity is being conducted remotely due to the COVID-19 pandemic; and
WHEREAS, HB 2046 also would make community bail fund license approval dependent on approval letters from district attorneys, credit report scores, and clean criminal records, and many people who work for community bail funds are formerly incarcerated and trying to give back to the community through service; and
WHEREAS, HB 2046 would likely eliminate community bail funds in Pennsylvania; and
WHEREAS, the Philadelphia Community Bail Fund bailed out 743 people incarcerated in the Philadelphia Department of Prisons from May 13, 2017 to January 27, 20229 and in 2020, the Philadelphia Bail Fund bailed out 401 people;10 and
WHEREAS, with the disproportionate impact of mass incarceration on communities of color, the restriction and elimination of community bail funds would have a disproportionate impact on the poor and people of color.
NOW, THEREFORE, BE IT RESOLVED, that Philadelphia Bar Association opposes enactment of HB 2046, Printer’s No. 2413 because it would have a detrimental impact on community bail funds, which provide valuable assistance in ensuring equal access to the justice system; and
AND BE IT FURTHER RESOLVED, that the Chancellor and/or the Chancellor’s designee(s) is hereby authorized to oppose HB 2046 and similar legislation as the position of the Philadelphia Bar Association;
AND BE IT FURTHER RESOLVED, that the Chancellor shall communicate the position of the Association to other interested entities; and take whatever additional action is necessary to effectuate this resolution.
PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: FEBRUARY 24, 2022
1 Will Dobbie, Jacob Goldin, and Crystal Yang, The Effects of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, American Economic Review (2018): 108(2): 201-240 available at https://www.aeaweb.org/articles?id=10.1257/aer.20161503
2 See Stephanie Holmes Diwaniya, The Immediate Consequences of Federal Pretrial Detention, Didwania, Stephanie Holmes, The Immediate Consequences of Federal Pretrial Detention (August 15, 2019). American Law and Economics Review , available at https://ssrn.com/abstract=2809818 or http://dx.doi.org/10.2139/ssrn.2809818
3 Dobbie at 202.
4 Alexander Holsinger, Analyzing Bond Supervision Survey Data: The Effects of Pretrial Detention on Self-Reported Outcomes, Federal Probation (September 2018), at https://www.uscourts.gov/sites/default/files/82_2_6_0.pdf
5 Sawyer, Wendy, How does unaffordable money bail affect families?, Prison Policy Initiative, at https://www.prisonpolicy.org/blog/2018/08/15/pretrial/, citing U.S. Department of Justice, Bureau of Justice Statistics, Survey of Inmates in Local Jails (SILJ) (2002), at https://bjs.ojp.gov/data-collection/survey-inmates-local-jails-silj#surveys-0
6 See U.S. Department of Justice, National Institute of Justice, Hidden Consequences: The Impact of Incarceration on Dependent Children (2017), at https://nij.ojp.gov/topics/articles/hidden-consequences-impact-incarceration-dependent-children.
7 Sam Rosen, Bail Fund Co-Optation and the Purpose of Cash Bail, American Bar Association GPSolo eReport, November 2021 (Nov. 22, 2021), https://www.americanbar.org/groups/gpsolo/publications/gpsolo_ereport/2021/november-2021/bail-fund-cooptation-purpose-cash-bail/
8 Logan Abernathy, Bailing Out: The Constitutional and Policy Benefits of Community and Nonprofit Bail Funds, 42 Law & Psychol. Rev. 85, 92 (2018)
9 See Philadelphia Community Bail Fund at https://www.phillybailout.org/.
10 See Philadelphia Bail Fund, 2020 Annual Report, at https://www.phillybailfund.org/annual-report-2020
