City To Try A New Bail System Judge Hands Back Some Control On Prison Population.

Posted: November 23, 1995

For seven years, Philadelphia's bail commissioners have been required to automatically release many suspects without bail to prevent excessive prison

crowding.

"You can sign your own bond," the commissioners said to thousands of men and women accused of such crimes as car theft, burglary, robberies committed without weapons, and possessing or dealing less than 50 pounds of marijuana, 50 grams of heroin, 50 grams of cocaine or 10 grams of crack.

Some suspects were handed pieces of paper noting their court dates and told to show up for their hearings and trials. Others were released after spending a few days or weeks in jail, with similar instructions to come to court.

Many - an estimated 30,000 in that period - failed to appear, emasculating the court system, endangering the public and almost decriminalizing some offenses, the mayor, police officers, the district attorney and many Municipal and Common Pleas Court judges have complained.

The automatic releases took place as a result of a 1988 agreement in the controversial prison-cap case, in which the Goode administration and lawyers for the inmates agreed to a moratorium on prison admissions for certain crimes

because of jail crowding and violence.

Now, beginning a week from today, U.S. District Judge Norma Shapiro, who presides over the cap case, is temporarily handing back to local officials the responsibility for making bail decisions and controlling the prison population.

According to its designers, the system that the city and court have devised will make more rational choices of which suspects to jail and which to release and under what conditions, and will provide more supervision for those judged less likely to appear in court or commit new crimes.

Shapiro is giving city and local court officials 90 days to demonstrate that their new system will not result in prison overcrowding. Shapiro has said she will lift the cap permanently, and end the case, if the new system works.

Municipal Court Judge Louis Presenza, who served on the committee that created the new system, said he hoped it would "get more people to show up in court. We need to determine who's guilty and who's not guilty. There's been so much frustration under the cap for witnesses and victims, who show up time and again and the defendant doesn't. Eventually, the witnesses give up, and then the charges have to be dropped."

However, Presenza and others involved in creating the new system caution against too high expectations. Jail space is limited, so many suspects will continue to be released.

"The container is only so big," said John Goldkamp, a professor of

criminal justice at Temple University who created new pretrial guidelines, along with a committee of judges and other local officials. By early next year, the city's new 2,000-bed prison in Northeast Philadelphia, now being phased in, will be fully opened. At the same time, the city will close the decaying Holmesburg Prison, which housed up to 1,400 inmates - for a net gain of about 600 spaces.

At the foundation of the new system are guidelines that bail commissioners will use to help them decide what to do with suspects at arraignments. The guidelines consider not only the seriousness of the crime but also the risk the suspect poses of not appearing in court and of committing new offenses. They also offer commissioners the new option of releasing suspects to some supervision.

The old system looked almost exclusively at the charges against the suspects, with automatic release granted to those charged with nonviolent crimes, such as theft. Often, however, a suspect would be released on his signature and then turn around and commit another nonviolent crime. If the

suspect were arrested for the new crime, he would be released again on his signature, continuing the cycle. That was allowed to happen because bail commissioners could jail or set bail only on those charged with violent crimes.

To develop the new guidelines, Goldkamp studied how pretrial defendants in Philadelphia have behaved in the past. From that, he and the committee created a list of factors that statistically predict the risk, like insurance actuarial tables, said Legrome Davis, supervising judge of the Common Pleas Court criminal division.

Interviewers for pretrial services will ask suspects their educational level and whether they live with a spouse or child and have a telephone in the house - all indicators of community ties. They also will look at previous arrests and failures to appear in court.

The interviewers then will use those factors to place a suspect on the risk side of the scale. The seriousness of the crime forms the other side of the grid. From both, the interviewer pegs the suspect.

Depending where he lands on the grid, the suspect can be released: on his own signature; after posting bail, ranging from 10 percent of $1,000 to 10 percent of $50,000; without bail but required to check in with court officers before trial or monitored electronically. Bail commissioners can override the guidelines but they have to explain why.

"It's a balancing act," Goldkamp said. "People who (run) numbers, shoplift, work as prostitutes, use drugs, deal drugs or commit thefts are more likely to do it again and not come to court than someone who commits a murder or armed robbery. But, of course, you would rather let a retail thief go than take a chance on an armed robber, even if the factors show the robber likely will appear for trial."

Under the new guidelines, someone charged with residential burglary could be released on his own signature, released with supervision or required to post $250 to $450 cash bail, depending on the risk factors. Under the cap, almost all accused burglars were released on their signatures.

Accused car thieves, under the cap, also were released on their signatures. The new guidelines recommend release, too, though some would be required to check in with court officers.

Armed robbery and rape suspects were usually required to post bail under the cap system; the same will be recommended in the new system, with the amount of recommended bail determined by the risk factors. The same is true with domestic violence. Murder, in both the new and cap system, is off the scale.

Under the cap system, only about 6 percent of suspects were required to post bail, compared with about 29 percent before the cap. Goldkamp predicts that about 25 percent of suspects will be required to post bail under the new guidelines.

Supervision is a major difference between the cap system and the new one. Beginning next Thursday, all suspects will be required to call an automatic telephone system within 24 hours of their arraignments.

Some of the suspects released with supervision will have to call in to the court officers and visit them a designated number of times. Others may be electonically monitored or required to undergo drug treatment or, in cases of domestic violence, family counseling. At present, those treatment options are very limited, but judges believe that in the long run, they are the best means of keeping at least some people from cycling in and out of prisons.

The city has given the court system $1 million to train pretrial service employees in the new guidelines and establish the monitoring system. In addition, the Pennsylvania Council on Crime and Delinquency has given the city $500,000 to develop alternatives to incarceration. The city has also gotten a $5.75 million grant from the U.S. Department of Health and Human Services to develop alternatives for female offenders with drug problems.

Whether the suspects will go along with the new structure remains to be seen.

"What do we do with the people who don't come in?" Presenza asked. "I have said all along we need a hammer. Word has gotten around that you don't have to show up at court. They are going to test us. We have to show them we mean business if we're going to restore integrity to the court system."

At the same time, the court system can't jail everyone who fails to keep an appointment, Presenza conceded. He and the other judges would not say how ''the hammer" - ultimately jailing people who fail to appear - would be used.

The biggest unknown is whether the new guidelines and supervision will - in practice - keep the population under 5,600, the new "working level" set by the city for January, when the new prison is fully opened and occupied. The population in recent years has been about 5,000.

Last week, the Philadelphia Board of Judges approved the most controversial part of the new system - emergency-release guidelines for use if the prison population exceeds 5,600. Approval of the guidelines was difficult to achieve

because releasing people nobody wants to see free is distasteful and can be politically risky for judges.

Under the release system, the city's deputy mayor overseeing the prison population would submit a list of which inmates, most of them pretrial suspects, would be safest to release, judging by criteria developed by Goldkamp. A trial commissioner would hold a hearing in which the district attorney and defense lawyers can express their views. If either disagrees with the commissioner's decision, it can immediately be appealed to a judge. If the inmate is ultimately denied release, the deputy mayor would have to come up with another candidate for release.

Nobody knows how often the emergency system will have to be used. Some predict its use will be rare; others believe it will be every day.

David Richman, the attorney for the inmates in the cap case, said he welcomes local control but will make sure the city doesn't try to put three inmates in a cell or bunks in dayrooms.

The sharpest critic of the new system is District Attorney Lynne Abraham, who said she fears it is "substituting one kind of cap for another." She thinks the city should build more prison space.

Mark Aronchick, an attorney for the city in the case, said he anticipates problems in starting up the new system, especially since the computerization of the guidelines and the classification of the current prison population won't be completed until January.

"We think we came up with a good system, given the resources," he said. ''If problems develop and we have to adjust something, we will."

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