Philly's video bail system draws continued criticism

On a cold January night in 2014, Muhammad Custis was keeping watch over the Village of the Arts and Humanities, a sculpture garden nestled in a tough stretch of North Philadelphia. The midnight silence of the neighborhood, pockmarked by vacant lots and boarded-up buildings, was suddenly broken by a banging noise from a nearby storefront. 

He walked across Germantown Avenue to investigate. 

“A lot of times, people spray-paint at nighttime. But this time, I heard banging,” Custis recalled. “Someone was vandalizing the store. I saw there was a small security gate raised up, so I screamed, ‘Who in there?’”

From inside the darkened store, a man rushed at Custis and then took off down the street, brushing within inches of his face. Just then, a police cruiser, apparently summoned by neighbors, pulled up and saw Custis standing next to a jimmied security grille. His employer hadn’t issued him a conventional security guard outfit, so he explained what happened to the police officers and even offered to call his employer.

They didn’t bite.

“They just assumed that it was me that broke in,” he said.

He was charged with burglary and would sit in a holding cell in a nearby police district for two days before coming face-to-face with a familiar sight: the closed-circuit television system Philadelphia uses to set bail. With a police officer looming over his shoulder but no lawyer present, a faraway judge on a small TV screen would determine Custis’ fate as he watched, silently.

To those unfamiliar with Philadelphia’s backlogged criminal justice system, this process, more like a Skype call than a typical court proceeding, may seem bizarre. But reform advocates describe it as a borderline unconstitutional practice that deprives people – often poor people of color – of their right to adequate legal representation. Worse, a growing body of research indicates that the system routinely leads to higher-than-average bail amounts.

Some big cities have abandoned the use of similar tools. Yet as Philadelphia moves ahead with plans to mitigate the use of excessive cash bail and decrease the county jail population, this controversial practice will likely be preserved.

People like Custis know the system all too well: The 39-year-old had been in and out of jail in his younger days, mostly for theft or fighting. He says that before his arrest, he was trying to turn his life around by working an honest job. He wanted to explain that to the police, to a defense lawyer, to the magistrate who would set his bail, but he couldn’t.

“It was just me. I’m on one end and they in a courtroom somewhere,” he recalls. “I could see the judge up on the bench, I could see someone handing them a piece of paper off-camera. That’s it. I didn’t have any representation, I couldn’t even hear them. Nobody said anything to me at all. They just read some charges off and gave me bail. I didn’t say anything.”

It would take a long time for him to get a chance to tell his story. Because he was on the tail end of a five-year probation sentence at the time of his arrest, Custis would be held in county jail for one and half years, awaiting trial.

He was found not guilty in May 2015 and released.

Video bail systems were supposed to make the system better – to help avoid the kinds of delays endemic to an overburdened judicial district where the average criminal case can take nearly 100 days to go to trial.

“The government’s interest is in saving time and money,” said Edie Cimino, a former Maryland public defender. “But these systems do not measure up to a defendant’s right to a fair trial; there are serious drawbacks to not being physically present in a courtroom.”

Cimino co-authored a study with two law professors about her state’s use of a similar system for certain bail review hearings. The researchers found that defendants in the state court system were more likely to have bail reduction requests denied than those in circuit courts, where hearings were conducted in person.

The paper suggests the obvious: in-person hearings to allow a defendant time to speak to a lawyer and present oral arguments to a judge, which could lead to reduced bail. In CCTV systems like Philadelphia’s, defendants almost never get to see a lawyer. A public defender is technically present, but they’re on the other side of the TV screen and usually off-camera.

“You can’t see the attorney,” Cimino said. “You can barely hear them. And you can’t have a conversation with them that isn’t being recorded.”

In fact, public defenders sometimes specifically instruct defendants not to say anything at all, as their recorded statements are admissible in court and could be self-incriminating.

Cimino added that she believed there were other intangible factors at play.

“When you look someone in the eye, there’s a human connection that happens,” she said, referring to the constitutional right to face one’s accuser. “That’s the reason for the confrontation clause. When you’re relegated to being an image on the screen, you’re dehumanized.”

CCTV systems were introduced for preliminary court hearings in Philadelphia as early as 1974, and were initially hailed as a high-tech reform. However, even then, the deficiencies of the system – the first were blurry black-and-white security monitors – were immediately apparent.

Public defenders at the time were “strongly against switching to preliminary arraignments via CCTV,” said Mark Houldin, director of policy at the Defender Association of Philadelphia. “We pushed back against it unsuccessfully at the time.”

Other big cities would come to embrace similar technology, sometimes funded by federal modernization grants. Chicago notably embraced CCTV systems in 1999, which ultimately attracted a legal challenge from the MacArthur Justice Center in 2006. In preparation for that suit, the group compiled data on more than 600,000 cases filed before and after the implementation of televised hearings.

Their findings were striking: For offenses that were shifted to televised bail hearings, the average bail increased 51 percent within a year of the system’s introduction. Violent crimes saw larger increases of anywhere “from 54 percent to 90 percent, depending on the offense.”

Meanwhile, certain bail hearings that continued to be conducted in person saw no change.

The data went public in 2008, in a Chicago Tribune article. The city voluntarily abandoned its CCTV systems four days later, but the arbitrary higher bail amounts enforced after the introduction of CCTV systems with the city remained as accepted practice for years to come.

Philadelphia is one of the last big cities that fully embraces closed-circuit television systems for preliminary arraignment hearings. In the basement of the Criminal Justice Center, across from City Hall, one of six court magistrates sit in front of a flat-screen television behind a glass pane separating the small courtroom from a public viewing area. A public defender, a few clerks and reams of paperwork give the room a cramped feeling.

Day after day, night after night, the magistrates take turns watching a parade of miserable-looking individuals appear onscreen, cycling from one person to the next every few minutes. Like many counties, the magistrates here are appointed to this position – one with no prerequisites – by court administrators. One of Philadelphia’s magistrates was formerly a court crier before his elevation to the position.

These robed figures watch a television screen filled with mostly young black men. The concrete walls of the eight different police districts equipped with CCTV hearing equipment create a shifting backdrop – beige bricks switch to yellow bricks, then back to beige again, as the parade continues, hour after hour.

City court administrators declined repeated requests to comment on the city’s use of video bail – the pros, the cons, anything at all. Both the courts and reform advocates are locked in a delicate effort to overhaul aspects of the city’s bail system that has left people on both sides reticent to speak too critically for fear of disrupting that process.

However, civil rights attorney David Rudovsky, who has monitored Philadelphia’s court system for decades, acknowledged that dumping CCTV was not on the table for the current round of reforms, funded in part by a $3.5 million MacArthur grant.

Instead, he said the local public defender’s office would launch an independent program designed to give arrestees brief contact with a lawyer assigned to central booking.

“The new system will have ‘defender bail advocates’ providing information and argument to the bail commissioner on behalf of all persons being arraigned,” he said. “The first set of advocates will be starting within the next couple of months.”

But some advocates said a few minutes of prep time with a lawyer was still no replacement for actual legal representation at in-person bail hearings. For the foreseeable future, men and women arrested in Philadelphia will remain nothing more than images on a screen.

Custis has been one of those images before. Sometimes he was guilty, as he freely admits, but at least once he was innocent. It didn’t seem to make a difference, he says – no one watching cared to listen to his story.

Today, again working for an arts organization and trying – again – to get his life back together, the experience still haunts him.

“It feels like they don’t even have time to have you in front of them,” he recalls. “They just look at you like, ‘OK, he did it.’” ■