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Bail, Humbug!

Thursday, June 1, 1995

Francis A. Biunno, a Philadelphia trial judge, had just sentenced a murderer to death. He then turned to the courtroom, called on those present to sit down, and asked the public to reflect on the breakdown of our democratic system that had led to the killing.

The murder in question was of a 21-year-old rookie police officer, Daniel Boyle, who stopped a stolen car in North Philadelphia. The driver of the stolen car, Edward Bracey, fired numerous shots through the windshield of the patrol car, hitting the young officer in the head. A police radio tape chillingly captured the fatal shots and the fallen officer's final words. A few days later Danny's father, veteran Philadelphia police detective Patrick Boyle, buried his only son.

This tragedy didn't have to happen. Philadelphia police, Judge Biunno said, had previously arrested Bracey for car theft. Twice Bracey had been released without bail or supervision under terms of an order issued by a federal court. Twice Bracey had failed to show up for trial—in fact, he was a fugitive from justice when he killed Officer Boyle. This killing wouldn't have taken place, Biunno suggested, if the federal court hadn't required the defendant's release.

Criticism of a federal court on the part of a local trial judge is highly unusual. But Biunno's statement reflected the anger and frustration that officials in Philadelphia harbor toward a federal order that has wreaked havoc on their city's criminal-justice system. The court order to which Biunno referred places a cap on the number of inmates in Philadelphia prisons, and it sharply restricts the ability of judges to imprison defendants prior to trial.

Last year, the city's judges were forced to release defendants in 15,000 cases. Thanks to the court order, the city now has 50,000 fugitives from justice—defendants who have been charged with a crime but do not even bother to show up for trial. Philadelphia police arrest the same criminals over and over again, only to see them immediately released. In the nine years since the order was approved by Judge Norma Shapiro, of the U.S. District Court, defendants released under federal court order have gone on to commit tens of thousands of crimes—including thousands of violent crimes such as murder, rape, and robbery.

The federal court's order is technically called a "consent decree," because it was agreed to by a previous mayor of Philadelphia. But it no longer enjoys the consent of the governed. Philadelphia's elected leaders, including its present mayor, its district attorney, and most of its city council, are deeply opposed to the consent decree but powerless to overturn it. Philadelphia may be the home of the Liberty Bell, but the federal consent decree is making a mockery of the principles expressed in the Declaration of Independence and the Constitution. The Philadelphia prisons, which house defendants before trial and sentenced prisoners, have been the subject of various class-action lawsuits since 1972. Past conditions in the prisons have been unacceptable. Over the years, many experts have observed inadequate medical care that has led to the death of inmates, unsanitary food preparation, vermin infestation, and poor plumbing, ventilation, and heating.

In 1986, these conditions prompted inmates at an old, decrepit facility called Holmesburg Prison to file a lawsuit against then-mayor W. Wilson Goode. The mayor decided to settle the case rather than go to trial. The resulting federal consent decree, agreed to by Goode's lawyers, did nothing to address medical care or other conditions in the city's prisons. Rather, it sought to limit the number of prisoners, and, more important, forbade pretrial detention for defendants accused of broad categories of crime. The architects of the plan apparently presumed that reducing the number of prisoners would improve the prison environment for the remaining inmates.

Instead of individualized bail review, with Philadelphia judges considering a criminal defendant's dangerousness to others or his risk of flight, the consent decree requires a "charge-based" system of prison admissions. Suspects charged with so-called "non-violent" crimes, including stalking, car jacking, robbery with a baseball bat, burglary, drug dealing, vehicular homicide, manslaughter, terroristic threats, and gun charges, are not subject to pretrial detention.

In determining pretrial detention, Philadelphia judges can no longer consider a defendant's prior record, his history of failing to appear in court, his mental-health history, his ties to the community, or his drug or alcohol dependency. These factors become completely irrelevant. A major drug dealer carrying a loaded Uzi and a plane ticket out of the country cannot be detained before trial in Philadelphia.

As a result of this system, Philadelphia has become an especially attractive location for drug dealing. Narcotics agents assigned to the international airport routinely apprehend (and are forced to release) drug couriers, who have been assured that carrying over $100,000 of marijuana to Philadelphia is risk free. One newly arrested drug dealer, knowing that he would be released in a matter of hours, cheerfully gave his pretrial bail interviewer a phone number where he could be reached—-in Cali, Colombia.

Another drug dealer, Walter Lewis, unwittingly schooled undercover narcotics officers on the benefits of dealing drugs in Philadelphia. Lewis had been awaiting trial in Philadelphia for drug dealing but had already been released because of the federal consent decree. Undercover narcotics agents from neighboring Montgomery County arranged a narcotics deal on City Line Avenue, the street dividing Montgomery County from Philadelphia. When Lewis arrived, he tried to convince the undercover officers to move the drug deal to the Philadelphia side of the street. He carefully explained that they could all be sent to jail if they stayed in Montgomery County. After the officers refused to move, Lewis mistakenly let greed guide him. He completed the deal, the officers immediately arrested him, and he went straight to jail, where he remained until trial. If the deal had occurred in Philadelphia, he would have been released in a matter of hours.

The consent decree has crippled Philadelphia's already struggling criminal-justice system. Once criminals knew that they could not be detained prior to trial no matter how many times they failed to appear for court, Philadelphia began recording unprecedented fugitive rates. A study conducted by John Goldkamp and Kay Harris, nationally recognized experts on the bail process, found, for example, that 76 percent of all Philadelphia drug dealers become fugitives within 90 days of their arrest. Nationally, only 26 percent of drug dealers become fugitives within one year of their arrest. By comparison, only 3 percent of Philadelphia defendants charged with aggravated assault—a crime not subject to the release provisions of the federal consent decree—fail to appear for court.

The skyrocketing fugitive rate has produced a system with more defendants in fugitive status than awaiting trial. In the first six months of 1994, over 11,000 new bench warrants (the arrest document issued when a criminal defendant does not appear for a court hearing) were issued for defendants released under the federal consent decrees, representing 74 percent of all the bench warrants issued during this period. Under the consent decree, the number of fugitives in Philadelphia has nearly tripled from 18,000 to almost 50,000, equivalent to a year's worth of criminal prosecutions. And no wonder: Under the consent decree, state courts are powerless to compel a defendant's appearance in court.

Unfortunately for Philadelphians, the defendants released because of the consent decree do not lay low—they just keep on committing new crimes. In an 18-month period (1993 and the first six months of 1994), Philadelphia police rearrested 9,732 defendants released because of the consent decree. These defendants were charged with 79 murders, 959 robberies, 2,215 drug dealing crimes, 701 burglaries, 2,748 thefts, 90 rapes, 14 kidnapping charges, 1,113 assaults, 264 gun-law violations, and 127 drunk-driving incidents.

These crimes cannot all be attributed to the federal consent decree; some defendants would have been released under normal Pennsylvania procedures. But apparently half or more of these crimes could have been prevented. Goldkamp and Harris found that pretrial detainees released under the consent decree committed crimes at more than twice the rate of defendants released under state-court bail programs. Within 90 days of release, 18 percent of federally released defendants were rearrested for new crimes, compared with an 8 percent rearrest figure for comparable state bail programs.

Retailers complain of a sharp increase in shoplifting and robberies by criminals immune from incarceration. In April, Charles Pembroke was released for the fifth time in 1995 because of the Philadelphia prison cap. In the last six months, Philadelphia police have arrested Pembroke three times for retail theft, once for robbing a pharmacy with a starter pistol while threatening to kill the victims, and once for drug dealing. Pembroke has failed to appear for court seven times and, as of this writing, is a fugitive on three of his cases. Philadelphia's criminal-justice system just keeps seeing the same defendants over and over again, but can't do anything until they commit a crime so serious that the consent decree finally permits the prison to admit them.

The consent decree also weakens the effectiveness of programs for criminal defendants who never would have been detained prior to trial. State judges are no longer allowed to sanction those criminal defendants who violate conditions of bail, fail to appear for trial, or commit new crimes. State-court bail programs have atrophied into virtual non-existence. Conditional-release programs providing drug treatment, aimed at lifting new offenders out of their recently acquired lives of drugs and crime, are forced to wait for offenders to become serious criminals with a long-term addiction.

The case of Frederick Hightower vividly demonstrates the absurdity of the consent decree. Hightower was a trained helicopter mechanic from a solid family who became addicted to crack at age 29. He quickly turned to burglaries.

Given Hightower's age, lack of prior criminal-justice contacts, and long-term ties to the community, the local court system (had it remained in charge of the pretrial detention process) probably would have released him without bail for his first two burglaries. But by the time he was arrested for his third burglary, the local judge would have suspected a drug problem, sent him to jail, and permitted his conditional release (again without posting bail) a few days later into an in-patient drug treatment program. If this had worked (admittedly an optimistic outlook) and he had remained in treatment, he would have been a prime candidate for a sentence of probation with the condition of continued drug treatment.

But the federal consent decree wouldn't allow the local criminal-justice system to operate. Without the threat of pretrial incarceration, Hightower wouldn't enter a drug treatment program. Philadelphia wasn't permitted to keep Hightower in jail until he was finally arrested for his 10th burglary. Hightower now was no longer a candidate for probation. Instead he received a 10-year maximum sentence, and must serve a minimum of two and a half years before he is eligible for parole.

The cost of this folly: numerous crime victims with substantial financial losses (and he surely wasn't caught every time); prison bed space occupied longer (a few years, at a cost of approximately $25,000 a year, instead of a few days); increased court costs (each one of his new cases involved police witnesses, prosecutors, defense lawyers, and court personnel), less chance of drug rehabilitation (the treatment came later in his addiction); and loss of tax revenues (Hightower was a skilled, employed taxpayer).

The Philadelphia Federal Courthouse overlooks Independence Hall, the cradle of American liberty and the Constitution. How ironic, then, that the federal court's consent decree tramples on the right of Philadelphians to a democratic political system.

Mayor Ed Rendell and District Attorney Lynne Abraham, both elected Democrats, won office pledging to do what they could to overturn the prison-cap and prisoner-release provisions of the consent decree. Philadelphia's top leaders, including most of the city council, are united in their view that the federal court's rules on pretrial release of defendants are a serious threat to public safety, effectively decriminalizing property crime in Philadelphia, and harming the financial viability of the city. But the federal court has rejected all challenges to the consent decree, and shows no indications of ceding oversight over the issue. Philadelphia's elected leaders are powerless to change agreements made by a prior administration, and so powerless to set their own criminal-justice priorities.

Our democratic system presumes that policies made by today's elected leaders, whether by legislation, regulation, or policy statements, can be altered by their successors in office. Through periodic elections, the public can throw out arrogant public officials who try to insulate their governmental vision from change or from the will of the electorate. Philadelphians do not consent to the consent decree that is destroying their criminal justice system. It's time that Philadelphia's elected leaders be allowed to do the job for which they were elected. Isn't that what America's independence was all about?

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