Courts take action to stem tide of no-shows

To stop criminal defendants from thumbing their noses at appearing in court, the Philadelphia criminal justice system is opening the door wider for private bail firms and starting a special court to crack down on fugitives.

The changes are aimed at changing a toxic culture in Philadelphia in which defendants felt - rightly - that they could duck court with impunity, the two state Supreme Court justices who pushed through the changes said Tuesday.

Chief Justice Ronald D. Castille and Justice Seamus McCaffery have implemented numerous reforms in response to a 2010 Inquirer investigative series on the Philadelphia courts that documented widespread witness intimidation, a massive number of fugitives, and some of the nation's lowest conviction rates for violent crimes.

Castille, a former Philadelphia district attorney, said the rampant fugitive problem wore down victims, witnesses, and police.

"There appeared to be no consequences," he said. "We're going to initiate a court to give some consequences."

McCaffery, a onetime Philadelphia homicide detective and former top city judge, agreed.

"The bottom line is we no longer can allow our system to be run by people who show up when they want to show up - if they want to show up," he said "They need to understand that there will be sanctions."

The Inquirer series disclosed that a staggering 47,000 defendants were long-term fugitives from the Philadelphia courts. The system was owed $1 billion in forfeited bail, the paper reported.

In research later affirmed by consultants hired by the courts, The Inquirer reported that a third of all defendants in Philadelphia skipped one or more court dates. The city's fugitive rate was tied with Essex County, N.J. - home of Newark - as the worst in the nation, federal studies showed.

William Chadwick, the criminal-justice expert hired by the state Supreme Court to help reshape the Philadelphia system, said the process for handling defendants before trial was badly broken.

"In many ways, pretrial release was a house of cards built on some sort of misconception," Chadwick said.

Philadelphia abolished commercial bail after scandals involving private bail bondsmen in the 1960s, including the blackmailing of gay defendants. Instead, the court system itself handled all aspects of pretrial release.

For about 25,000 defendants yearly, this has meant they were released to await trial after they put up 10 percent of their total bail amount. They signed an IOU saying they would have to pay the remaining 90 percent if they skipped court.

For decades, though, it was an open secret in court and on the streets that a defendant could fail to appear and never have to pay the remaining money.

When defendants did show up - or, in a relative handful of cases, were rearrested - they were typically given a new court date and released.

Starting Monday, fugitives who are caught or turn themselves in will face a hearing before a new Bench Warrant Court. Municipal Court Judge Joseph C. Waters Jr. is to preside. Castille suggested that defendants might be jailed for a week for skipping out on one hearing. If they had flagrant histories of ducking court, the punishment could be more severe, he said.

In an administrative order issued Monday, Common Pleas Administrative Judge John W. Herron also lowered barriers that have kept all but one private bail firm from operating in Philadelphia.

Firms now will only have to post $100,000 up front for every $1 million in bail they provide. The previous requirement, enacted in 2006, was $250,000.

Defendants who use a private bail firm need not put up the full 10 percent themselves. The firm will put the bail and put them on a repayment plan, while assuming the risk that the accused may flee and forfeit.

Castille and the Supreme Court appointed Herron as administrative judge in November, replacing Common Pleas Judge D. Webster Keogh, who had served the previous five years. Herron also named was chairman of the court system's overall governing board, replacing Common Pleas Court President Judge Pamela Dembe.

When The Inquirer spotlighted the courts' problems, both Keogh and Dembe downplayed the issues. Dembe said she doubted the accuracy of federal counts showing Philadelphia with a record share of fugitives.

She also opposed an expansion of private bail, saying the commercial bond industry in the city had had a history "corruption and physical abuse."

In an interview Monday, Herron took a different tack.

He said the system had to tackle the "FTA rate" - the failure-to-appear problem that he said left every system participant "frustrated, exhausted."

"Looking at the pieces of the puzzle, we all came back to the FTA rate," he said.

"We're trying to take a global approach, rethink everything," he added. "This is a time for experimentation and change."

The private bail industry has been arguing that it should be part of any reform movement.

The requirement to post $250,000 for each $1 million in bail issued has meant that only one firm - Lexington National Insurance of Baltimore - had been putting up bail money in Philadelphia. The bail is issued at a storefront office on 13th Street in the shadow of the Criminal Justice Center.

Last year, it posted bail for only 29 defendants - in a city where police arrest 60,000 people yearly.

On Wednesday, Brian J. Frank, president of Lexington insurance, said the lowered deposit amount should lure more firms into Philadelphia. "It's very workable," he said. "This, I think, will start to open the market."

Frank said the industry wants to shake off any lingering image problems. "We want to be able to prove over time to a system that had a bad prior experience some 30 or 40 year ago that our industry will take care of business," he said.

Critics of private bail argue that it leads to a form of debtors' prison, jailing harmless defendants too poor to pay a bondsmen, and freeing wealthier ones - like a drug kingpin - regardless of the danger they pose. Timothy J. Murray, executive director of the Pretrial Justice Institute, a national organization critical of commercial bail, said some private firms had stiffed court systems when their clients skipped court.

Murray said the new Bench Warrant Court made sense, but said he was troubled that Philadelphia courts had yet to overhaul its overall bail guidelines.

The rules, which are about 20 years old, rachet up bail based on such factors as the seriousness of the crime and a defendant's records. Some defendants, such as accused killers, are held without bail to await trial. Those charged with less serious charges do not have to put up cash bail.

For its part, the industry says that, unlike court bureaucrats, it is on the hook when defendants flee, giving it ample motivation to make sure they don't skip court. The firms say they work hard to stay in touch with defendants and make sure they go to court.

Bail firms also cite a series of studies, including one from U.S. Justice Department researchers, finding that clients of commercial bail firms are less likely to skip court in the first place. And if they do run, the studies say, they are more likely to appear in court eventually. McCaffery pointed out that the Philadelphia system will be a "hybrid," with most defendants still posting their bail without using a private firm. Still, Castille said that Philadelphia needed to give commercial bail a new shot.

"I'm willing to try it to see how it works," he said. "We'll watch it closely."

The key, he said, was to change the perception among defendants that they can duck court at will. "We think that word will spread very rapidly among the individuals that don't seem to care," he said.