Protesters’ arrests highlight issues with county’s bail system

After dozens of protesters were arrested in Pittsburgh on Saturday and Monday nights, they were transported to City Court to be arraigned and processed.

Outside of a handful of people who faced more serious counts, the vast majority of those arrested were charged with failure to disperse and disorderly conduct and had no criminal records listed in Pennsylvania.

Whether the protesters were freed to await their next court date without having to visit jail, or whether they had to put up bail money or no money at all, depended on a process that critics describe as arbitrary.

Allegheny County’s system of setting bail, they say, is not transparent, leads to a wide range of outcomes and puts enormous discretion in the hands of the court system’s 46 district judges who preside over the initial court appearance — all of whom make their decisions independently.

The magistrate judges who arraigned the protesters set bail amounts that varied significantly — from releasing them on their own recognizance to requiring a $10,000 percentage bond, meaning they would have to post $1,000.

Of 61 defendants analyzed by the Pittsburgh Post-Gazette, 17 were released on their own recognizance (ROR). Four were given what is called a nonmonetary bond, meaning they were not required to post any surety. Thirty-two were ordered to pay

10% of a cash amount between $1,000 and $5,000, and eight were required to pay 10% of $10,000.

Of those eight, six of the protesters demonstrating against police brutality and the death of George Floyd had no arrest records in Pennsylvania, and two of them had previous charges for summary and misdemeanor counts.

The judge who handed out the most $10,000 bonds was District Judge James Motznik, with six of them.

Judge Motznik said he could not comment for this story.

District Judge James J. Hanley Jr., who assigned two $10,000 bonds, did not return a call seeking comment.

Defense attorney Lisa Middleman, who last year ran unsuccessfully for district attorney, helped organize a group of attorneys to represent the protesters for free.

Of the bail amounts, she said, “They’re all over the place. It’s an incredible experiment. Everyone that contacted me was virtually accused of the same crime.”

Angharad Stock, the deputy court administrator who oversees the magistrate courts, said she could not explain why the bond amounts varied so much.

“They don’t have to justify or give a reason why they set bail,” Ms. Stock said.

Under the Rules of Criminal Procedure, a magistrate only has to explain a decision if bail has been denied.

“We do bail different here,” said Janice Dean, director of Allegheny County’s Pretrial Services. “It’s individualized. There are differences in situations that a casual observer wouldn’t be privy to.”

Ms. Dean said they could not comment on individual cases.

“The judges are elected to make bail decisions,” she said.

When a magistrate sets bail at arraignment, Ms. Dean said, a pretrial services caseworker makes a recommendation, using, in part, a risk assessment that looks at things like past failures to appear for court, employment, criminal history and length of time at current residence.

The recommendations made by pretrial services never include cash amounts. Instead, they suggest ROR, a nonmonetary bond with conditions — such as a drug-and-alcohol evaluation — or no release.

“In our department, we have decided we are not going to recommend money,” Ms. Dean said. “How do we determine an amount? We don’t know.”

Despite what pretrial services recommends, many magistrates in Allegheny County continue to set a cash bail amount — which has brought increasing frustration among criminal justice reformers.

“I don’t think it’s a disconnect,” Ms. Dean said. “Money is still an option in the state of Pennsylvania.” Ms. Stock echoed that. “Judges are all independently elected officials,” Ms. Stock said. “Cash bail is not illegal in the state of Pennsylvania. It’s not something we think we have to reconcile.”

Defense attorney Randall McKinney, who is working with Ms. Middleman to represent some of the protesters, said he often sees people charged with much more serious crimes than the protesters receive lower bonds.

“It is disheartening to see individuals exercising their constitutional rights to stand up to injustice be essentially punished by unreasonable bonds,” he said. “It does seem like a message was being sent.”

Mr. McKinney said the problem with the system is that how bail is set is often based on “the luck of the draw.

“What judge assignment you get. What mood the judge is in when he’s reading your report.

“There’s no real rhyme or reason as to why people get released or not,” Mr. McKinney continued. “That’s, unfortunately, the nature of the beast. It’s a simple explanation.”

If a defendant believes the bail amount set is unfair, Ms. Dean said, they can request a modification, which is heard by a Common Pleas judge, who, unlike district judges, are required to have a law degree and are rated by the county’s bar association.

The bail modification process, though, typically takes at least a couple of days — which might mean remaining in the Allegheny County Jail.

Ms. Stock said it is not a violation of an individual’s rights if bail is set higher than they would like.

“It’s easy for us to sit back and say, ‘you should have done this, or you should have done that,’” Ms. Stock said. “But it’s a very hard decision that they all spend a lot of time making.”