When Shariff Durbin languished in a Philadelphia jail for months awaiting trial on a false felony arrest that arose from a police investigation into an April 2010 shooting incident in South Philadelphia, he received a glimmer of hope.

A judge drastically reduced the onerous $500,000 bail Durbin initially received down to $20,000.

“That’s unheard of,” he said during a recent interview. “They know I didn’t do a thing.”

Durbin’s family scraped together the $2,000 needed for Durbin’s release from jail on that new $20,000 bail. But the buoyancy Durbin felt from that bail release soon burst, plunging him back into the pit of what many describe as Philadelphia’s criminal ‘injustice’ system.

Persons charged with a crime in Philadelphia can, under most circumstances, post 10 percent of the bail amount set by authorities to gain release while awaiting trial.

Bail is set to ensure the accused will show up for trial. Yet, too often, bail, especially unnecessarily high bail, becomes a vehicle for punitive pre-trial detention. That reality is detailed in repeated reports and exposed in the mistreatment of Durbin — a man with no history of criminal conduct.

“Cash bail creates de facto detention orders for poor Philadelphians and disproportionately impacts communities of color,” stated a detailed September 2018 report sent to the President Judge of Philadelphia’s court system by the American Civil Liberties Union of Pennsylvania.

“Numerous empirical studies demonstrate that pre-trial detention increases the likelihood of conviction and sentence length.”

Durbin’s short freedom on bail crashed during a court appearance after his bail release when the prosecutor handling his case accused Durbin of intimidating a witness. Durbin said the prosecutor’s accusation against him was both false and malicious.

“The prosecutor said I intimidated her witness,” he said. “But to this day, I still don’t know who that person was. I never intimidate anyone.”

The judge granted that prosecutor’s request and revoked Durbin’s bail sending him back to jail.

That bail revocation resulted in Durbin’s family forfeiting the $2,000 they posted to gain his release. That lost $2,000 further aggravated the financial strain experienced by Durbin and his family, expenses that included $20,000 in legal fees to fight Durbin’s false arrest.

Buying freedom

A 2017 study by Temple University’s Beasley School of Law entitled “The Cost of Buying Freedom” stated “Pennsylvania is detaining the poorest people before trial rather than the most dangerous.”

Philadelphia, that study noted, has the highest incarceration rate of the 10 largest cities in the United States. “In 2009, Philadelphia spent as estimated $290 million on incarcerating its residents, with 57% of those in jail detained awaiting trial.”

A major problem with bail in Philadelphia and most other places around the country is that many people cannot afford to post 10 percent, even when the amount needed for bail release is as low as $100.

That inability to post bail that leaves persons languishing in pre-trial detention falls heaviest on the poor, particularly African-Americans.

In November 2018, persons of color comprised 88.7 percent of those held in Philadelphia’s jail system. African-Americans comprised 66.4 percent of that total.

“Pennsylvania’s cash bail system is racially discriminatory,” the 2017 “Buying Freedom” report stated. “It has led to the overwhelming mass incarceration of racial minorities.”

Reforms occurring with Philadelphia’s bail practices, although commendable, do not substantially reduce “systemic white racist oppression of black peoples” former Temple University professor and activist Anthony Monteiro said.

An old problem

Problems with the city’s bail system go back decades.

A Tribune editorial from March 1953 blasted the 76-day detention of a man charged with theft because he hadn’t returned an item of clothing that a friend loaned him. That editorial emphasized how that detention lingered because that man “couldn’t raise” money needed for bail.

Another editorial two decades later declared, “One of the greatest shortcomings of our judicial system has always been the discriminatory nature of the bail system…It is not uncommon for poor people to spend many months in jail because they are unable to come up with as little as $100 in bail money.”

Problems with Philadelphia’s bail system have attracted the attention of social justice advocate Malcolm Jenkins, star player for the Philadelphia Eagles football team. Jenkins, in a commentary published in early December 2018, referenced Philadelphia’s bail system as a “travesty.”

Jenkins criticized the fact that one in four people assigned cash bail in Philadelphia receive bail of $50,000 or more, amounts that make persons “accused but not convicted of a crime” unable to purchase their freedom through bail.

Criminal justice system expert, attorney David A. Love, said, “We know the use of cash bail is a problem, and yet the practice continues, disrupting lives in the process.”

Love said problems with bail persist because “many people” have a vested interest in keeping the punitive system “as it is” for personal profit and career advancement.

That comes at a cost to city taxpayers.

Philadelphia, America’s poorest large city where over one-quarter of residents live in poverty, spends on average $40,000 to incarcerate someone before the court decides if that person is guilty or not, according to that “Buying Freedom” study.

“Eliminating cash bail would reduce the Philadelphia prison population by as much as 70% and save the city $247 million per year, only a fraction of which would be required to implement alternative pre-trial services,” stated that study conducted on behalf of Redeemed PA, a community organization advocating for criminal justice reform.

One area cited consistently as a problem is how bail is assigned in Philadelphia, during brief proceedings devoid of the procedural safeguards the public associates with legal rights.

Most persons arrested received bail hearings via a video process where the accused and a bail commissioner are not in the same room. The entire process takes just a few minutes where the accused rarely has an attorney. The accused is generally barred from speaking. And the bail commissioner, who sets bail without adequate information on the accused, is often not even a lawyer, much less a judge.

Critics note the weird-world circumstance where accused persons poor enough to receive a court appointed lawyer routinely receive large bail amounts that vastly exceed their ability to post that bail.

Jenkins’ commentary, written after he personally observed bail hearings, stated the system, which “punishes poverty, is galling on its face, but all the more so when you consider that almost half of those who are held in jail pending trial are never found guilty.”

Bail reform efforts

Longstanding problems with the bail system in Philadelphia encountered some major changes in 2018.

In February 2018, Philadelphia District Attorney Larry Krasner announced that local prosecutors no longer would seek cash bail for persons accused of any of 25 charges, including driving under the influence, prostitution, resisting arrest and drug possession, depending on the amount and type of the drug. Reforming bail practices fulfilled a campaign pledge Krasner made.

Philadelphia’s courts are actively involved in reforms to improve the criminal justice system inclusive of changes in bail practices said Gabriel Roberts, spokesman for the city’s courts, formerly known as the First Judicial District of Pennsylvania.

“In conjunction with the City’s justice partners, the Courts have instituted a number of reforms, most recently via the MacArthur Safety and Justice Challenge, which led to a 40.1% decrease since 2015 (as of November 2018) in our local jail population,” Roberts stated in an email to The Philadelphia Tribune.

“The Courts will continue successful justice reform initiatives that result in fewer people being detained on cash bail, enhance diversion programs, and provide early bail hearings – all without jeopardizing the safety of the community,” the email from Roberts stated. “The Courts are dedicated to working with justice partners, community members, and other groups interested in effectuating criminal justice reform.”

In October, the First Judicial District announced a major change in practice: It would return to defendants 100 percent of their bail deposit when their case is closed.

Before that practice/policy change, Philadelphia’s courts kept nearly one-third of the posted bail amount rather the person on bail who successfully appeared for trial was found guilty or acquitted. That heavily criticized practice poured $2.9-million into the City of Philadelphia’s general fund in fiscal year 2018, according to an investigation conducted by The Philadelphia Weekly published in August.

That now ended City court system practice of retaining a portion of posted bail persistently provoked widespread criticism. “When the city and the courts keep 30 percent of the money posted for bail, that is a perfect example of theft — no due process and no just compensation,” justice system expert David Love said. (Private bail bondsmen who post the 10 percent for people who need bail keep the entire amount posted.)

Criminal justice system reforms inclusive of improvements in bail practices, while welcome, are not having the impacts as announced, according to Nyssa Taylor, Criminal Justice Policy Counsel for the ACLU of Pennsylvania. Taylor co-authored that September 2018 report sent to the President Judge of the First Judicial District.

“Unfortunately we’ve not seen any substantive changes. We’re very disappointed with the lack of changes,” Taylor said in a recent interview.

Taylor said many counties in Pennsylvania do not arrest persons for most misdemeanor offenses, instead issuing summons. She said this procedure “diverts” low-level offenders out of arraignment courts.

One area of fault that Taylor sees is the failure of Philadelphia’s courts to follow rules for bail established by the Supreme Court of Pennsylvania.

“We advocate that the Philadelphia court system read and follow the rules. I know that sounds crazy, but just do it,” Taylor said. “There are good laws already on the books that are not followed.”

Taylor said one frequently overlooked bail related area is holding people with violations of parole and probation — known as detainers — on high bail or no bail. Persons held on detainers comprised 56.7 percent of the Philadelphia jail population in November 2018, according to data compiled by Philadelphia’s court system.

A few years ago, Frank Prillerman found himself held on a probation detainer in Philadelphia due to a mix up about procedures to follow from his probation in Arkansas.

Prillerman, who did not receive written instructions from authorities in Arkansas, did not realize that he was required to report to probation authorities in Philadelphia before his case was officially transferred from Arkansas to Philadelphia. Although Prillerman scrupulously followed procedures to report monthly to Arkansas authorities and pay the monthly probation fee that state required, a traffic stop in Philadelphia flagged a detainer from Arkansas.

Prillerman, when held in Philadelphia, experienced that much criticized video bail procedure where he was barred from telling the Bail Commissioner anything about his circumstance. (Legal action taken by Prillerman contributed to some improvements in that video procedure.)

Prillerman eventually was shipped back to Arkansas and placed in prison for probation violation. He remained in Arkansas prison for months before an Arkansas appeals court ruled that he committed no violation, producing his release.

“When a person from Philadelphia receives probation from another city or state, having never been sentenced to imprisonment to begin with: a challenge to the person’s probation by the arresting jurisdiction results in Philly [bail commissioners] imposing multi-million dollar bails on persons whose arresting jurisdictions did not deem a threat to society,” Prillerman explained.

“Philly tax dollars pay for the incarceration of persons whom the originating jurisdiction did not seem fit to pay. This is ridiculous,” Prillerman said. “In other words, Philly taxpayers are paying for the imprisonment of people that the offended jurisdiction did not pay. Why? A similar situation exists for parole violations as well.”

An end to Durbin’s bail nightmare

Good police work produced the eventual release of Shariff Durbin. But the detectives who arrested Durbin didn’t do that innocence-confirming police work.

Durbin was released from jail but to the confinement of house arrest, where for over two years he wore an electronic monitoring device around his ankle. He could leave his house only to go to work.

Durbin’s uncle, Tyrone Cook, a Philadelphia Police Department detective supervisor at the time of Durbin’s 2010 arrest, identified the real culprit. And in 2013, the District Attorney’s Office dropped the charges against Durbin that included attempted murder, ending Durbin’s three-year false arrest nightmare.

In 2010, Cook also documented the improper procedures other detectives used to falsely arrest Durbin and exposed misconduct by Durbin’s initial prosecutor that included fraudulently giving overtime payments to Durbin’s arresting detectives.

The Philadelphia Police Department fired Cook later that year on the charge that he was chronically late for work in 2004, though he believes it was a reaction to complaints lodged against him by the prosecutor and detectives he exposed for misconduct.

Durbin, referencing the ordeal he and his uncle endured, said, “I don’t trust the criminal justice system.”

Disclosure: Linn Washington is a professor at Temple University.

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