Aug 3, 2018 4 min read

”We know that when you have a system that depends on money, then the only thing you know about the people who are in jail is that they’re poor.”

Nancy Fishman, project director at the Vera Institute of Justice

Two people get arrested for the same, relatively minor crime. One is a person of average means. The other has very few assets. When bail is set for each at $10,000, the person who has money is able to post it, but the “poor” person remains stuck behind bars for who knows how long until his or her case comes to trial or a plea is entered.

Sometimes the bail is much less than $10,000, but people still don’t have the money to post it. One such person is John Z. Murphy Jr., who spent nearly a month and a half in jail in Northampton County on misdemeanor charges because the $800 in bail was more than he had available.

Murphy’s case was among those outlined in a recent Associated Press story, based on a report by The Morning Call of Allentown.

The story said Murphy might still be languishing in jail were it not for a Northampton County initiative aimed at making it easier for those charged with misdemeanors to be freed pending trial. A judge decided that he could be released from jail without posting any money.

Nancy Fishman, who is project director for the Vera Institute of Justice, which works to improve fairness in the justice system, said those who are unable to post even nominal bail can lose their jobs, their housing and, sometimes, even their families. She said those who are jailed while awaiting trial are more likely to plead guilty and receive longer sentences.

According to the AP report, there are few states that house more pretrial inmates than Pennsylvania, and that has caused many jurisdictions to take a fresh look at whether cash bail is necessary in many cases, and whether the decision to grant pretrial release should be based more on risk. That’s the approach now in place across New Jersey, where bail is set only for those who are considered significant flights risks or likely to commit additional crimes.

“The whole philosophy behind (reform) is that our traditional system in the United States of requiring cash bail is unfair to those who are indigent, who are living on the margins,” said Judge Stephen Baratta, who led the bail reform push in Northampton County. “The bail reform movement is to make it more fair.”

Pennsylvania’s bail system was criticized in a 2016 opinion from the Third U.S. Circuit Court of Appeals, which called inequitable bail “a flaw in our system of justice” and a “threat to equal justice under the law.”

The opinion came in a case brought by Joseph Curry of Boyertown, who was arrested and spent 88 days in Lehigh County jail after his 2012 arrest for shoplifting $130 worth of merchandise from a Walmart. He claimed it was a case of mistaken identity, but he ultimately pleaded no contest and was freed with a sentence of two years of probation. Curry said in his malicious prosecution suit, which he ultimately lost, that he only pleaded no contest because he wanted to be reunited with his family. He said that while he was in jail for nearly three months, he missed the birth of his only child and lost his job, putting him at risk of also losing his car and home.

There are countless other stories like Murphy’s and Curry’s. Certainly, we don’t want people who pose a danger to others or who have been engaged in crime sprees to be turned loose without restrictions, but it’s clear that the current system is unfair to those who are on the bottom rungs of the socioeconomic ladder. We would hope that other counties, and the state as a whole, would follow the lead of Northampton County and find alternative approaches to keep those accused of minor violations out of our jails.