As Calls for Bail Reform Ring Nationwide, Could the Answer Lie with Public Defenders?

(Photo: Getty Images)

At the Pittsburgh Municipal Court, the RAND Corporation partnered with the local public defender’s office to study how defense attorneys can impact bail hearings.  

By Matt Keyser
National Partnership for Pretrial Justice

This Q&A is part of a series in which we highlight the work of various NPPJ partners. 

Around the country, about half of people at bail hearings do not have access to public defense attorneys. This was the situation for years in Allegheny County.

In the Pennsylvania county, the hearings largely went before judges who used a risk assessment tool and their own inclinations to determine if a person charged with a crime should be released pretrial and what, if any, conditions like monetary bail should be set.

In April 2017, the county opted to shake up the system. Officials implemented a pilot program with the local public defender’s office to provide those charged with a crime an attorney for bail hearings that were held during regular business hours.

Impressed by the drop in the use of monetary bail and pretrial detention that coincided with the introduction of public defenders to bail hearings, county officials opted to expand the program to include hearings that occurred during the evening, overnight, and on the weekends.

The county partnered with the RAND Corporation, a research organization and NPPJ partner, to launch a study researching the effects of having a public defender available during those off hours. The study ran from April 2019 to March 2020, just as the novel coronavirus pandemic began shutting down courts nationwide.

“We were fortunate that we had been in the field for a year, so we had quite a bit of data,” said John Engberg, an economist with the RAND Corporation, who helped conduct the study.

Engberg and Shamena Anwar, an economist with the RAND Corporation, spoke with NPPJ about the study and how public defenders can help advocate for people during their bail hearings. Although the study is complete, its findings must first be peer reviewed and haven’t been released.

This interview has been edited for length and clarity.

NPPJ: How did you all get involved in this project?

Shamena Anwar: First, I think it’s useful to have some background on the origins of this project. The majority of individuals arrested within Allegheny County will have their initial bail hearing at the Pittsburgh Municipal Court. Prior to April 2017 there were no public defenders present at these hearings. In April 2017 the county decided to pilot providing public defenders at these hearings. What that meant is that they provided public defenders for all bail hearings that took place at the Pittsburgh Municipal Court during business hours—Monday through Friday, 8 a.m. to 4 p.m. [Allegheny County] did its own internal analysis of that pilot study and they were happy with the results. They wanted to expand that.

The idea behind expanding the provision of public defenders is that these bail hearings at the Pittsburgh Municipal Court take place seven days a week, 24 hours a day. The pilot wasn’t covering any of the bail hearings that occurred in the evening, overnight, or weekend hours. The county was planning to hire two additional public defenders to help with these shifts, but they weren’t going to be able to handle all of these additional shifts. This set up a situation that was ideal for being able to rigorously evaluate the impacts of providing a public defender at bail hearings.

Our colleague, Shawn Bushway, who was at the University of Albany at the time, heard that the county was looking for a local study team to evaluate this expansion and gave us a call. We felt this was an extremely important question to examine because the prior research in this area has been somewhat inconclusive due to the study designs used.

We worked with the public defender’s office to create a shift schedule, which would create relatively balanced treatment and control groups. We wanted to create a schedule such that when the public defender was present it would look very similar to a situation later when the public defender wasn’t there. So we developed a schedule that alternated every two weeks, which generated natural treatment and control groups and allowed us to study the causal impact of having public defenders at bail hearings.

NPPJ: Why is it important to have a public defender at a bail hearing?

John Engberg: Bail hearings determine whether someone is detained in jail or gets released while they await trial. There is a lot of evidence that people who stay in jail are more likely to be convicted and that monetary bail leads to greater detention rates for racial minorities. Attempts to reduce the use of bail by setting recommendations have largely proved ineffective because judges retain the ultimate discretion.

SA: I think the easiest way to think about what the impact of the public defender might be is to describe what the bail hearing process looks like when there’s no public defender and what happens when there is one there. I can speak to the way these hearings work at the Pittsburgh Municipal Court, which is where our study is being conducted.

When an individual is arrested and gets taken to jail, the first thing that’s going to happen is they’re going to get a risk assessment done. That risk assessment, as well as information about what the individual is arrested for, goes to the judge. I should note that the risk assessment used in Allegheny County would never recommend that the judge set monetary bail, but the judges are free to ignore that, and they do continue to set monetary bail somewhat frequently.

So once the judge gets the paperwork they’re making their decision on what they want to do: they can either release the individual with no conditions or with non-monetary conditions, they can set a monetary bail, or they can detain them. The actual bail hearing, what they call the preliminary arraignment, doesn’t take place for maybe an hour or two hours later. At that preliminary arraignment, the judge has already filled out all the paperwork and is telling the person charged what they’re going to do.

When you have a public defender, the process is the same in the sense that the judge has already made their pretrial release decision before the actual bail hearing. However, the key difference is that the public defender will talk to the judge at the time they are reviewing the paperwork and making their decision. At that point, the public defender will have already talked to the individual, so they can relay to the judge mitigating circumstances, such as the person has a job they need to get back to or they can provide an address the individual will be staying at in situations where the judge does not want them to contact an alleged victim in the case. You’re not going to get any mitigating information about the person charged in front of the judge unless you have a public defender there. I think that’s one of the key things.

NPPJ: I imagine as someone sitting there in jail going before a judge, you don’t know how to advocate for yourself in the same way that a public defender does.

SA: That’s one of the things the public defenders noted to us—they know how to relay what the individual is saying to the judge in a way that will be most helpful for them. Public defenders act as sort of a conduit.

JE: And the public defenders, for the most part, know the judges because the judges are the same folks over and over again, and the public defenders are the same folks over and over again. So they establish some rapport that an individual could not establish.

NPPJ: As you’re conducting this study, what are you looking for?

SA: We’re looking at the impact of public defender presence on a variety of outcomes. But the key thing we’re looking at is does the public defender have an impact on whether the judge decides to set a monetary bail? We also then look at the impact on pretrial detention. Does having a public defender present impact whether people end up in jail following their bail hearing and for how long?

NPPJ: You mentioned working with the public defender’s office to create a schedule. What did that schedule look like and how was it implemented?

SA: We worked with the public defenders on when they would work weekends, evenings, and overnight shifts. The office continued to staff their normal business shifts—that never changed. The only thing that was altered was these additional shifts. At the beginning of the study, we collaborated with the public defenders and came up with a schedule that alternated every two weeks. So, for example, the first two Mondays of the month a public defender would be staffed for bail hearings that took place from 4 p.m. to 12 a.m. and then the next two Mondays of the month there wouldn’t be a public defender there.

NPPJ: So you get a good sense of how a public defender is impacting those groups of people appearing at a specific time?

SA: Yes, because we can focus on these specific shifts where the public defender status varies. So I can say that on Mondays from 4 to 12 I would expect to get the same types of people charged this week as I am getting two weeks later. The only difference is the public defender is there for one of those sets of people and isn’t there for the other set. You get a natural treatment and control group.

JE: And we check to make sure we have balance between the treatment and control groups. Do we have the same number of misdemeanors and felonies on the shifts that the public defenders are working compared to the shifts that they’re not? Do we have the same set of demographics—age, race, sex? Do we get people with similar criminal histories?

We found that the alternating schedule worked well to get us two groups of people that look identical coming into the bail hearing. The only difference is one group had the public defender and one group didn’t. And as Shamena said, the county only had enough money to hire public defenders for about half of these shifts. So it’s not like our experiment was depriving anybody of defense. We worked with them to allocate who would get the public defenders.

NPPJ: It sounds like there’s a lot of data involved throughout this entire process.

JE: The court keeps really good track of who comes in. Allegheny County, led by the Department of Human Services Director Erin Dalton, has been at the forefront of developing data systems that allow its agencies to be monitored and evaluated. So, for the most part, we relied on all the electronic data files that the court keeps. We also did some visits where we would go down in the middle of the night, just so we knew what was actually going on with the public defender in the court as well.

SA: We would check the data every month or two months as the study went on. We were looking to make sure that there was a balance across the treatment and control groups, and that the county was following the schedule. The county was great about providing us with all the necessary data.

NPPJ: With the calls for bail reform across the country, do you think adding a public defender to these hearings could help lower or largely do away with monetary bail as a condition of release? 

SA: In recent years there has been a huge movement to reduce the reliance on monetary bail. One of the ways jurisdictions do this is to get rid of monetary bail altogether, like New Jersey.

But a lot of jurisdictions are addressing this issue by implementing risk assessment tools that recommend to judges that they replace monetary bail with supervisory conditions. However, preliminary research has found that judges tend not to follow these recommendations and have been continuing to set monetary bail.

And so one of the key outcomes we’re looking at in this study is does providing public defenders at the bail hearing impact the likelihood with which judges are going to assign monetary bail? If we find this is something that can actually reduce it, then this indicates expanding the use of public defenders at bail hearings might be another way to lower this reliance on monetary bail.