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I am a product of the Allegheny County Common Pleas Court. Forty years ago, I was the subject of a drawn out contentious custody case in Allegheny County Orphan’s Court. Under the state of PA law at the time, the decision should have been rather obvious (and likely would have led to disastrous results for me). However, the Judge thought outside the box and in doing so changed the law, and my life, for the better. The opinion that he authored in that case, which bears my name, was affirmed by the PA Superior and Supreme Courts and is still cited to this day.
This isn’t just an interesting backstory. I personally experienced what it feels like to be swept up in the court system. I personally experienced what it is like to stand in front of a Judge, powerless. I personally experienced what it means to have little power to determine your own fate. More importantly, those experiences taught me that every decision a Judge makes can permanently change a person’s life for better or for worse.
We are facing an inflection point in the Allegheny County Criminal Justice System. There are an historic 9 openings in Allegheny County Court of Common Pleas this year. This is nearly twenty five percent of all of the Common Pleas Court Judges in the entire county. Now is the time that we can effect change by electing Judges that will work to fight for the reform that our criminal justice system so desperately needs.
Systemic racism, ever increasing incarceration rates, cash bail and excessively long probationary periods are the norm in the Allegheny County criminal justice system. Instead of addressing underlying issues we warehouse people. Instead of offering rehabilitation and the chance to succeed we set people up for failure.
Many people seem to take offense with the term “systemic racism”. They believe that everyone working in the Criminal Justice System is accused of being racist – this is not what the term means. While there are individuals within the system who are racist, they are problems not “The Problem”. Systemic Racism refers to the system itself which disenfranchises, and treats inequitably, people of color.
An example of this would be the lack of representative juries. Most assume that the reason for juries not fairly containing representative members of color is a result of prosecutors unfairly striking such members. While this certainly does happen, it is not the underlying systemic problem. The systemic racism lies in the way in which we pick juries in the first place.
This problem lies in how Jury Pools are chosen. A Jury Pool is a group of potential jurors from which the prosecution and defense choose their particular jury (generally around 35 people in Allegheny County). I have picked juries, both as prosecution and defense, countless times in Allegheny County. Yet, I don’t remember ever seeing more than 2 to 3 people of color in the entire jury pool!
These pools are chosen from registered voter rolls which is a problem in and of itself. Are they systemically targeting certain members of the voter rolls or particular geographic areas? As a private individual, I don’t have that information – as a Judge I would demand it. The numbers don’t lie – Judges must work to attack these underlying systemic issues within our criminal justice system. I am proud to state that in my many years as a prosecutor, I was never once Batson Challenged. (A Batson Challenge is raised by the defense when they believe that a prosecutor has unfairly excluded a person of color from the jury.) As a Judge, I would do everything within my power to address this, and other, systemic issues which make finding true justice so difficult for people of color in our current criminal justice system.
Cash Bail and ever increasing incarceration rates
Many people seem to think that we have “solved” the cash bail problem in Allegheny County. We most certainly have not – approximately 98% of the inmates in the Allegheny County jail have not been convicted of the crime for which they are incarcerated (pre-trial detention). Criminal Justice reform does not require, nor do I claim, that all criminal defendants should be released. Obviously there are people who are a danger to society and/or a flight risk and must sometimes be incarcerated to protect society. However, the vast majority of those charged with crimes in Allegheny County are NOT accused of committing a crime of violence. The purpose of Bail is to ensure that defendants appear in court when required. Most would do so without being incarcerated and, as a last resort, could then be incarcerated if they refused to appear without good reason.
The societal costs of this are immense. Taxpayers spend $100 per day to house an inmate at the Allegheny County Jail. Further, Covid-19 has run rampant within its walls during the pandemic endangering not only inmates but Corrections Officers and their families. An individual who is incarcerated for just days (most spend far longer in a cell) might lose his/her employment, housing and even family. Quite often these individuals are facing charges for which they wouldn’t be incarcerated even if found guilty – this is offensive. Further, we as a society bear the costs for these ruined lives.
Excessively long probationary periods
In Allegheny County Criminal Court there is a practice of putting defendants on excessively long probationary periods – known as putting a “long tail” on a person. Historically, the belief has been that we need to keep people under court control to ensure that they don’t re-offend. This happens often in cases involving those charged with non-violent offense such as DUI, minor drug offenses and retail theft. In my 20 plus years in the courtroom I have found the exact opposite to be true.
When courts impose excessive probation on non-violent offenders they are setting those individuals up for failure rather than success. In my experience, those with excessive probationary periods are more likely to be incarcerated again. All it takes to end up in jail is a missed supervision fee or committing a minor infraction. I have represented defendants who went to State Prison for having a positive marijuana test while on probation for a non-violent offense. There are Judges who provide Probation Officers with pre-signed warrants so that they can incarcerate probationers at their discretion pending a violation hearing. I would never allow this practice. As a Judge, I would require probation officers to explain to me why they wanted a probationer incarcerated pending a violation hearing. The P.O. would be required to provide a pressing reason such as danger to the community or flight risk.
A prime example of the danger of this practice is a client whom I represented not too long ago. She was on probation for a retail theft and had completed all of her requirements and paid all of her court costs. One month before the end of the probation she was charged with a first offense Driving Under the Influence. She was immediately incarcerated and sat in jail until the conclusion of her new case – a period of five and a half months. Horrifically, she was only facing a mandatory Minimum of 72 hours in jail for the DUI. Even worse, this occurred during the current pandemic. She was the sole provider for her elderly mother and lost her employment during that time. She served 5 ½ months in jail for a criminal offense that only required 3 days if found guilty – how is this Justice? How does this benefit society? Of course, she now has a brand new excessive period of probation to serve.
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