Criminal Justice Committee

Chaired by Carlos Graupera, the Criminal Justice Committee is focused on addressing racial and ethnic disparities in PA’s criminal justice system and reforming its indigent defense, capital punishment, and pre-trial detention systems. The Committee’s current initiatives include the following:

Pre-Trial Detention System Reform: As part of its efforts to reduce the pre-trial detention of indigent defendants charged with low-level, non-violent crimes, the Commission completed and widely distributed its guide, Ending Debtors’ Prisons in Pennsylvania: Current Issues in Bail and Legal Financial Obligations: A Practical Guide to Reform (attached at right). The guide recommends reforms to Pennsylvania’s pre-trial detention system and to the imposition of court fees, fines, and costs (“LFOs”) on indigent defendants.

On February 14, 2022, the Commission also submitted Comments (attached at right) to the PA Supreme Court Criminal Procedural Rules Committee on its proposed amendments to existing state court rules governing bail. The Commission’s comments focused on four of the proposed amended rules, including the appointment of counsel at preliminary arraignments, the problematic proposed expansion of the purposes of bail, the burden of proof to be met by the bail authority in attaching conditions of bail, and the length of time within which a hearing on conditions of bail must occur. The Rules Committee subsequently published a revised proposal, on which the Commission submitted comments (attached at right) on September 7, 2023. The Commission’s comments supported many of the changes made by the Rules Committee between the first and second proposal iterations, such as the removal of overly-broad justifications for which bail may be assigned to a defendant, while also suggesting other amendments, such as reducing the length of time within which a hearing on conditions of bail must occur.

At the local level, on February 2, 2022, the Committee submitted comments to the proposed amendments to the Allegheny County Court Bail Rules (attached at right). Similarly, the Commission distributed to all PA President Judges a set of proposed local rules (attached at right) designed to decrease the use of cash bail.

Reform of Court Rules Regarding Imposition of Legal Financial Obligations (“LFO”) on Indigent Defendants: At the state level, the Committee worked with the ACLU-PA to draft and submit proposed state court rules (attached at right) to strengthen the judicial requirement of conducting a detailed hearing on a defendant’s ability to pay LFOs and related expenses. The Committee also collaborated with the ACLU-PA on an amicus brief to the Supreme Court of Pennsylvania (“Court”), challenging a lower court’s holding that an existing rule of criminal procedure does not require a court to consider the financial resources of the defendant when imposing court costs. 

Most recently, the Committee began working with the Philadelphia Lawyers for Social Equity (“PLSE”) to reverse the Pennsylvania Board of Pardons’ informal policy, which prohibits hearings on an individual’s clemency application when that individual owes outstanding fines, fees, or costs. In November 2021, the Commission submitted testimony (attached at right) to the Pardons’ Board, outlining the Commission’s opposition to the policy. In response, counsel to the Board stated that they are reviewing the Committee’s request to rescind the policy. Because of changes to its membership, the Committee plans to request a meeting with the Board in 2023. It has recently been reported to the Committee that inmates’ petitions for clemency are still being rejected because of outstanding LFOs. 

In January 2023, the Committee also joined Pennsylvanians for Modern Courts (“PMC”) and the ACLU-PA in submitting a letter (attached at right) to the PA Supreme Court Criminal Procedural Rules Committee, urging the Rules Committee to adopt rules responsive to Act 163 of 2022. Among other things, Act 163 provides Municipal, Magisterial and Common Pleas’ Courts explicit authority to reduce or waive nearly all fines and costs when the defendant is unable to pay them. The letter’s proposed amendments to existing criminal procedural rules are intended to clarify courts’ power to collect debt from those who can pay, while also allowing courts to end wasteful and fruitless collection efforts for those who cannot.

Indigent Defense Reform: Pennsylvania is the only state in the nation that does not fulfill its constitutional duty to fund indigent defense, instead forcing localities to foot the bill. This inadequate system disproportionately and negatively impacts case outcomes for indigent Pennsylvanians. At the request of bipartisan legislative leaders, the Commission drafted and submitted a report entitled Memorandum in Support of Reform of the Provision of Criminal Indigent Defense Services in Pennsylvania (attached at right). Published in October 2020, the Memorandum sets forth a detailed plan for reform of Pennsylvania’s fragmented indigent defense system. It also contains an analysis of the costs and benefits of the proposed statewide and state-funded reforms and is intended to serve as the basis for bipartisan legislation that will overhaul the Commonwealth’s broken system.

Since submitting the Memorandum, the Committee has convened numerous meetings with legislators and relevant stakeholders to secure funding and support for the recommended reforms. Its efforts helped garner support for a responsive bill passed by the PA Senate in October 2022. Senate Bill 1317 (“SB 1317”) would have established an Indigent Defense Advisory Committee within the Pennsylvania Commission on Crime and Delinquency (“PCCD”) to draft and submit to the Supreme Court of PA a plan for the adoption of minimum standards for the delivery of indigent defense services. Because the legislative session ended shortly after SB 1317’s passage in the Senate, the House was not able to consider and pass the legislation.

However, in December 2023, the General Assembly passed and the Governor signed into law Act 34. The Act assigns a first-of-its-kind allotment of $7.5 million for the funding of indigent defense reform in Pennsylvania. It also establishes the Indigent Defense Advisory Committee proposed by SB 1317 above, tasked with the same responsibility of proposing indigent defense standards to the Supreme Court. Once the Court approves these standards, the Advisory Committee will then disperse funding to counties that demonstrate compliance with the standards. In a press release (attached at right), the Commission commended the enactment of Act 34, which takes a critical step toward ensuring equal access to our courts regardless of socioeconomic status. The Commission looks forward to playing an active role in the development of the standards, grant funding, and other processes the Advisory Committee proposes to the Court.

Capital Punishment Reform: In support of its death penalty reform initiative, the Committee contracted with the Pennsylvania State University in 2013 to conduct a statewide study to determine if racial, ethnic, or socioeconomic status influences the administration of the death penalty in Pennsylvania. The study, Capital Punishment Decisions in Pennsylvania: 2000-2010, Implications for Racial, Ethnic and Other Disparate Impacts, was released on October 12, 2017 (attached at right). Based on the study’s findings, the Committee submitted recommendations to all three branches of state government to reduce bias and unfairness in Pennsylvania’s capital justice system. The Committee also played an active role in a second, broader study of the death penalty system conducted by the Pennsylvania Joint State Government Commission (“JSGC”), entitled Capital Punishment in Pennsylvania: The Report of the Task Force and Advisory Committee (attached at right). Currently, Penn State is conducting a third study on disparities in the prosecution of all Pennsylvania homicide cases from 2012-2016. When the report is completed in the coming few months, the Committee will approach the legislature and the Governor’s Office about implementing legislative changes responsive to the reports’ recommendations.

Racial/Ethnic Bias in Risk Assessment Instruments: On June 4, 2018, the Commission testified at a public hearing held by the PA Commission on Sentencing (“PCS”) on its proposed risk assessment instrument, designed to assist judges in making unbiased pre-trial confinement and sentencing decisions. In its testimony (attached at right), the Commission raised concerns with several of the tool’s criteria, such as prior arrests and employment history, which disproportionately increase the likelihood of incarceration for racial and ethnic minorities. The Commission also expressed its concerns with the proposed tool’s lack of racial impact analysis. Similarly, on August 6, 2021, the Commission submitted written Comments/Recommendations to proposed amendments to the Allegheny County Court Bail Rules. In its Comments/Recommendations (attached at right), the Commission raised several of the same concerns it identified in the PCS’s proposed risk assessment tool. Most recently, on October 17, 2022, Commission staff served as panelists at a Pittsburgh-based Bail Reform & Pretrial Justice Town Hall and Speak Out. During their portion of the program, Executive Director McCormick and Staff Attorney Bertig addressed the viability of risk assessment algorithms and raised concerns similar to those outlined in the testimony and comments above.

Police Reform Initiatives: During the 2019-2020 legislative session, the Committee advised the Pennsylvania legislature of its concerns with several then-pending police misconduct bills (attached at right). To strengthen future reform initiatives, the Committee is now helping to draft various pieces of related legislation, including one that would comprehensively and effectively ban the use of officer-induced chokeholds. The Committee is also working with a joint PA Bar Association (“PBA”) Committee and a legislator on a bill requiring police departments throughout the state to either contract with a mental health professional or establish an in-house, specially trained mental health unit to accompany officers to the scenes of potentially dangerous situations involving individuals suffering from mental health crises.

Racial Disparities in Life-without-Parole Sentences for Felony Murder: Two recent studies by PLSE have examined racial and ethnic disparities in the prosecution of felony murder and its accompanying mandatory life-without-parole sentence in Pennsylvania. Along with noting that Pennsylvania has the second-highest population of individuals serving life sentences in the nation, the studies found that almost 70% of people incarcerated for life-without-parole on second-degree murder convictions in Pennsylvania are Black. In addition, the second study found that 81% of individuals prosecuted in a group in which two or more people were convicted of second-degree murder are Black, suggesting that the statute’s equal application to principals and accomplices disproportionately affects Black people. The Committee is now working with the Lieutenant Governor and other stakeholders on legislation that would amend the statute in several ways, including eliminating life-without-parole sentences for accomplices.

Juvenile Justice Reform: In June 2021, the Pennsylvania Justice Task Force released a report analyzing the Commonwealth’s juvenile justice system. Among other things, the report found that at least two-thirds of youth enter the juvenile justice system for misdemeanors or contempt from Magisterial District Courts for failing to pay fines. It also demonstrated that serious racial inequality in the juvenile justice system exists, with the largest disparities existing for Black youth charged as adults. Based on the report’s findings, the Committee is assisting in drafting legislation that would eliminate fines and other fees for youth and raise the minimum age at which youth can be tried as adults.