The Defender’s policy team leads our efforts to transform the criminal justice system through initiatives and systemic policy changes that support fair outcomes for clients, stronger, safer neighborhoods, and rights guaranteed by the Constitution.

Our current cash bail system jails Philadelphians for their inability to pay – before there is any determination of guilt or innocence. Almost half of those incarcerated pretrial are never found guilty, as they have their cases dismissed, withdrawn or are found not guilty. This system destroys the presumption of innocence and unfairly targets those with fewer means while costing the city thousands of dollars per day.The Defender Association is committed to ending this inhumane practice and works with Malcolm Jenkins and the Players Coalition, the Philadelphia Community Bail Fund, and community groups across the city to make this goal a reality.

In addition to costing taxpayers millions of dollars a year, pretrial incarceration harms people and their families in countless ways. While in jail, a person can lose his/her job, housing, children, access to medication, or public benefits. People who spend even a few days in jail can be traumatized by the experience. The loss of housing, employment, benefits, and other basic supports leaves Philadelphians and their families even more desperate. When their case is over, people found not guilty are given no assistance in repairing the harm caused by unnecessary pretrial incarceration.

“Probation detainers” are the largest driver of Philadelphia’s jail population. What are detainers? If someone on probation is charged with a new crime or even something as trivial as missing several appointments with their probation officer, they will likely have a probation detainer lodged. This detainer prevents them from being released even if they can afford their bail or would be released otherwise. They are often stuck in jail until their new case is resolved, a process that can take months. These detainers are often lodged directly by probation officers contacting court staff without a hearing or formal warrant issued by a judge.

While Philadelphia’s courts have issued a new rule on detainers, the new rule does little to prevent individuals from being jailed despite being presumably innocent. The Defender remains deeply concerned with how, when, and why detainers are used and continues to fight fo deeply curtail and ultimately end their usage.

The Defender is advocating for caps on probation terms and limits on punishments for technical violations of probation or parole. This includes supporting legislation from Sen. Anthony Hardy Williams to reform our probation system and working with the Columbia Justice Lab on a groundbreaking report detailing severe over-supervision in Pennsylvania.

Locally, we have pushed to eliminate testing for marijuana by our local probation department. We also prepared a research brief for the Adult Probation and Parole Department and other stakeholders showingthat most direct violations occur within the first 12-18 months of supervision and that extensive periods of probation increase the likelihood of future recidivism.

Through our Policy Unit, the Defender has been the leading voice against the Pennsylvania Sentencing Commission’s proposed risk assessment tool. In 2010, the General Assembly passed a law that required the Commission to create a worksheet that judges may use in sentencing. While this was initially designed to identify low-risk people who should not be sentenced to prison, the tool created would have labeled people high or low risk, with no guidance on how courts could use such an instrument. The Defender believes it would lead to more mass incarceration, not less.

The Sentencing Commission’s latest proposal is only 52% accurate when it labels someone “high risk,” and relies on racially-biased data which will only deepen racial disparities within the criminal justice system. If passed, the tool will fail to predict violent crime but succeed in embedding the racial inequities that continue to plague our system. Put simply, this tool will cement all of the ugliest aspects of mass incarceration: racism, the erosion of due process, and draconian punishments for minor infractions.

The Defender actively opposes implementation of this tool and was one of its earliest opponents.

The Defender has served as a core partner in the city’s grant from the MacArthur Foundation Safety and Justice Challenge since its initial drafting in 2015. The Defender used resources from the grant to pilot the provision of meaningful representation at bail hearings – something that is currently lacking in Philadelphia. More than 2,000 people have benefited from this program since its launch in 2017. This unique partnership saw the Defender and the Philadelphia Police Department collaborate to provide access to representation. A Defender representative is present in the Police Headquarters at 8th and Race for meaningful interviews prior to clients’ liberty determinations.

Another successful program supported by the MacArthur Foundation grant is the Early Bail Review (EBR) Program. This program provides a second look at bail amounts on many cases with bail set at of $50,000 or less (meaning the person would have to post 10%, $5,000 or less, to be released). Through personalized interviews and partnerships with our Social Service Advocates, we identify people’s needs and make referrals to services to ensure they are successful when released. The goal is not just to get people out of custody, but to ensure they have the supports and services needed to stay out of custody.