Special Report: Pennsylvania’s Unfair Bail Practices Violate Constitutional Rights, Demand Urgent Reform
Across Pennsylvania, thousands of defendants languish in county jails, not because they’ve been convicted, but because they can’t afford to pay exorbitant cash bail amounts. This widespread practice, rooted in a flawed system, violates the U.S. and Pennsylvania Constitutions, undermines the presumption of innocence, and perpetuates wealth-based incarceration. A growing chorus of advocates, legal experts, and even some judges are calling for sweeping reform to end this crisis.
A System Rigged Against the Poor
The Eighth Amendment of the U.S. Constitution prohibits excessive bail, mandating that bail amounts be “reasonably calculated” to ensure a defendant’s court appearance, not to punish or detain them before trial. Similarly, Article I, Section 14 of the Pennsylvania Constitution guarantees that “all prisoners shall be bailable by sufficient sureties” except in cases involving capital offenses or where no conditions can ensure public safety. Yet, in practice, Pennsylvania’s magisterial district judges (MDJs) routinely set cash bail at unaffordable levels, effectively jailing people for their poverty.
In 2016 and 2017, the average cash bail amount in Pennsylvania was $38,433—more than half the state’s average household income. Over half of those assigned cash bail couldn’t pay it, resulting in pretrial detention. This isn’t an isolated issue: in all 67 counties, urban and rural, MDJs consistently impose bail amounts that defendants, particularly low-income individuals, cannot afford. For many, even a few hundred dollars is insurmountable, leading to weeks or months in jail while awaiting trial.
Constitutional Violations and Racial Disparities
The overuse of cash bail flips the presumption of innocence on its head. Defendants who can’t pay face devastating consequences: job loss, eviction, disrupted medical care, and even loss of child custody. Pretrial detention also increases the likelihood of guilty pleas, as defendants, desperate to regain their freedom, may plead to lesser charges rather than fight their case from behind bars. Studies show that even a few days in jail can increase recidivism rates by 6-9%, undermining public safety rather than enhancing it.
Compounding the issue, bail practices disproportionately harm Black and Latino defendants. Black Pennsylvanians are assigned cash bail in 55.2% of cases, compared to 38.5% for white defendants, and face bail amounts averaging $12,866 higher. In counties like Westmoreland, Black defendants are assigned bail nearly twice as high as their white counterparts. These disparities persist across the state, reflecting systemic bias that violates the Fourteenth Amendment’s equal protection clause.
MDJs often fail to conduct individualized assessments of a defendant’s ability to pay, as required by Pennsylvania law. Instead, they set bail based on charges or arbitrary standards, ignoring factors like employment, community ties, or financial circumstances. In some cases, MDJs deny bail altogether for non-capital offenses, a practice that directly contravenes the state constitution. These actions turn bail—a mechanism meant to ensure court appearances—into a tool for pretrial detention.
A Call for Reform
The ACLU of Pennsylvania has labeled this a “statewide crisis,” arguing that MDJs are breaking the law by setting unaffordable bail. Their 2021 report, Broken Rules: How Pennsylvania Courts Use Cash Bail to Incarcerate People Before Trial, outlined four key recommendations:
- MDJs must follow the law, setting affordable bail or using non-monetary conditions like release on recognizance (ROR), which is underutilized at just 22% of cases.
- The Administrative Office of Pennsylvania Courts (AOPC) should analyze bail data regularly to promote transparency and accountability.
- President judges must oversee MDJs to ensure compliance with constitutional standards.
- Courts and jails should implement safeguards to prevent incarceration solely due to inability to pay.
Some judges are leading by example. In Allegheny County, MDJ Mik Pappas has avoided cash bail for over two years, using alternatives like community-sponsored release to ensure court appearances without detention. Centre County boasts a high ROR rate, with one judge setting it in 98.4% of cases. These models prove reform is possible without compromising public safety.
Jurisdictions like Washington, D.C., which largely eliminated cash bail, have seen no increase in recidivism, and 12 of 13 U.S. jurisdictions with pretrial reforms reported stable or reduced crime rates. Pennsylvania could follow suit by expanding ROR, capping bail amounts based on income, or adopting risk assessment tools that prioritize public safety over wealth.
Voices for Change
Public sentiment, reflected in posts on X, echoes the urgency of reform. In 2022, Governor Josh Shapiro called Pennsylvania’s cash bail system “unfair,” noting it locks up presumptively innocent people, costs taxpayers millions, and fails to enhance safety. Advocates argue that the state’s $1 billion annual jail budget could be better spent on community services if pretrial detention were reduced.
Defendants’ stories highlight the human toll. A Philadelphia mother, detained for weeks on $5,000 bail for a minor theft charge, lost her job and housing. A Pittsburgh man, unable to pay $10,000 bail for a nonviolent offense, pleaded guilty to avoid further jail time, despite a strong defense. These cases illustrate how cash bail punishes poverty, not crime.
The Path Forward
Reforming Pennsylvania’s bail system requires action at multiple levels. The AOPC’s 2021 proposal for bail review hearings within two days of arraignment, with appointed counsel, is a step forward but awaits implementation. The General Assembly could mandate affordable bail standards or eliminate cash bail for low-level offenses, as other states have done. Voters, too, hold power: MDJs are elected, and communities can demand accountability by supporting candidates who prioritize fairness.
Pennsylvania’s bail practices violate constitutional protections, exacerbate inequality, and erode trust in the justice system. The state has the tools to fix this—through policy changes, judicial accountability, and public pressure. Until reform happens, thousands will remain caged, not for their guilt, but for their poverty.