Is “cashless” bail coming to Pennsylvania and will it make Philadelphia even more dangerous? Has it worked in New Jersey?
The new year is here and one of the biggest criminal defense issues in Pennsylvania in 2023 will be a proposed reform of its current cash bail system. Currently, the Commonwealth maintains a traditional cash bail system which assigns a monetary amount for an accused to obtain release prior to trial. While there are bail guidelines, they are outdated and do not accurately reflect the seriousness of crimes or consider other factors.
Due to the outdated guidelines, judges are left to determine bail based on arguments of counsel along with information contained with affidavits of probable cause. This often leads to a wide of range of bails based on individual judges and causes a lack of uniformity throughout the Commonwealth. Judges may set bail at what they believe to be a relatively low amount but an accused still cannot obtain release because of their lack of financial resources.
Some in Pennsylvania, including the newly elected U.S. Senator John Fetterman want to move the Commonwealth to a cashless bail system where judges can release or order a defendant detained based on certain factors. If this new system was put into action, accused person would no longer be require to post any money or property to obtain release for the majority of crimes.
The proposal to change Pennsylvania’s cash bail system has caused a lot of concern, especially in Philadelphia, where there were over 420 homicides and over 1,000 carjackings in 2022 alone. Many have argued that a “cashless” bail system will make the problem even worse. New Jersey, however, implemented such a system in 2017.
How is the bail amount currently calculated in Pennsylvania?
In Pennsylvania, with exception to those charged with capital offense (i.e. Murder) or those facing life sentence, everyone charged with a crime entitled to bail in Pennsylvania. This right is guaranteed by the 8th Amendment to the United States Constitution as well as Article I, Section 14 of the Pennsylvania Constitution.
Bail is cash or the cash equivalent used as security to ensure that a person who is released pending trial will appear at all future court proceedings and also comply with any other conditions the court may impose.
Some people believe that bail is meant to punish someone but it’s not. Remember that everyone is innocent until proven guilty! The primary purpose of bail is to secure a person’s presence at trial and to protect society from an alleged dangerous individual. The Pennsylvania and the United States Constitution prohibit a state or the federal government from imposing an excessive amount of bail.
Bail is set after a person is charged with a crime and well before trial. This is the main reason why bail is so important because if a person is unable to post bail, he or she will have to remain in jail.
What are the factors judges use in Pennsylvania to set a bail amount?
Prior to setting a bail dollar amount, the bail authority (usually a judge or bail commissioner will listen to arguments from the defense and prosecution based on the following factors:
- The nature of the offense and any mitigation or aggravation regarding it
- The defendant’s employment history and financial condition
- The defendant’s family relationships (i.e. children)
- The length and nature of the defendant’s residence in the community and past residence
- The defendant’s age, reputation, and mental condition
- The defendant’s history regarding his or her failure to appear in the past
- The defendant’s prior criminal history
- Any other factors the court may find relevant in this analysis
What is the bail system in New Jersey?
The Garden State’s bail system is no longer based on money but on risk factors to determine if a person should be held in custody prior to trial.
If a prosecutor in New Jersey is seeking pre-trial detention, he or she must file a motion before a court orders the accused person’s release based on New Jersey’s new bail reform guidelines pursuant to 2A: 162-17. If this motion isn’t filed, a court, no later than 48 hours after a person is taken into custody, should release the accused individual on their personal recognizance or on the execution of an unsecured appearance bond, after considering the pre-trial services risk assessment and any other information available to the court.
The New Jersey Pre-Trial Detention Proceeding – 2 Part Analysis
When the prosecutor files such a motion, there is a rebuttable presumption that the eligible defendant should be detained pending trial because no amount of monetary bail, non-monetary conditions, or a combination will ensure that this person appears for trial, or that this person presents a danger to the community. It is important to keep in mind that once a motion is filed for detention, there is a two prong analysis which the court must go through in order to determine if detention is appropriate. First, the court must determine if probable cause exists to find that the eligible defendant committed a predicate offense under 2A: 162-19 which would include crimes of violence, illegal drugs, and firearms offenses (Graves Act).
The standard of proof to overcome the rebuttable presumption for the defense is preponderance of the evidence. If the defense does not overcome the presumption, the court will likely order that the defendant be held prior to trial. If, however, the defense does establish sufficient burden of proof the prosecutor is then given the opportunity to establish grounds that detention is appropriate. This is the second part of the analysis.
What are the factor New Jersey judges use to determine pre-trial release (cashless bail)
To determine if pre-trial detention is appropriate the court may consider the following factors:
- The nature and circumstances of the offense charged
- The weight of evidence against the eligible defendant and the likelihood that the admissible evidence could be excludable
- The history and characteristics of the defendant
- The defendants character, physical and mental condition, along with family ties, employment, length of residence in the community and prior criminal history
- The release recommendation of pre-trial services using a risk assessment analysis report.
All of these factors are considered on a Public Safety Assessment (PSA) which assigns scores based on risk of “new criminal activity” and “failure to appear.” If a person isn’t granted release during a detention hearing, he or she will be held until the matter is disposed of through a trial or a plea. There is no monetary amount set to obtain a person’s release. A person is either held prior to trial or released pending trial or disposition (plea).
While many may argue that Pennsylvania’s move to cashless bail will make Commonwealth less safe, New Jersey’s system, is much better. The New Jersey system, unlike Pennsylvania’s current system, forces a judge to look at the risk factors rather than set a cash amount to compensate for a high risk of future violence or flight risk. There is more of a chance that a violent person will obtain release in Pennsylvania than in New Jersey provided they have access to the necessary funds.
Our criminal defense law firm wishes you a happy and safe 2023!
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