20 Years On the Bench – Reflections of a Philadelphia Trial Court Judge - Part III

Our Evolving Criminal System

When you think about a criminal case, you probably think about Law & Order – heated discussions between police and attorneys, dramatic testimonies, emotional pleas, exasperated admissions in the middle of trial.

That’s not what a real courtroom is like. And it’s not quite how criminal cases work.

I started in Philadelphia’s felony-grade criminal courts in 2006 in what’s best known as the “waiver’s program,” where judges hear non-jury trials on relatively routine drug dealing and non-violent offenses like forgery and retail theft. While these were considered small potatoes, people did go to jail as a result of their actions. This, we now know, is part of a larger problem – mass incarceration. While now understood as real and unnecessary, in 2006 it was not uncommon for a person to receive a multi-year jail sentence for committing a low-grade offense.?

I spent three years in the waiver’s program before “graduating” in 2009, becoming one of three judges hearing one jury trial after another involving violent offenses in West Philadelphia. These were trials for attempted murder, armed robbery, rape, and sickening child abuse, as well as major narcotics cases, sometimes involving drug busts where police found pounds of cocaine, dozens of guns, and thousands of dollars in cash. My job was to hear suppression motions and decide the constitutionality of police seizures. If I denied the suppression motion, and most of them were, then drugs, guns and cash properly seized by police could be used as evidence at the trial. If convicted, defendants faced tough sentences. I sent one rapist to prison for 35 to 70 years.

First, and most significantly, is the shift away from mass incarceration and towards reducing recidivism with a more effective and coordinated reentry system. It’s this shift that’s really driven my own work both in and outside the courtroom.

Back then, conduct of police was rarely at question, particularly during suppression motions. The following was routine:

Defendant X is arrested for possession of a controlled substance with intent to distribute (PWID). During arrest, X is beaten and taken by police to an emergency room. After hospital discharge, X is taken to a police station where he is booked and charged by the DA with PWID and aggravated assault against an officer. X is also charged with misdemeanor resisting arrest.

A hearing master then sets bail that is higher than X or his family can afford. X goes to county jail where he waits a few months until his first court date, which is to schedule a future trial but not to hear it.?

In front of the judge for the first time, X is given a plea bargain by the Assistant DA. Plead guilty to resisting arrest in exchange for a time-in sentence and-get out of jail today, or wait in jail for another six months for trial on the aggravated assault charge and a potential twenty-year max.

I regrettably accepted dozens of these pleas over the years. I understand defendants did not have video evidence and few wanted to take the chance of a trial, but police and prosecutors were cynical about the whole thing. I was manipulated. If I did not accept the deal, the defendant stayed in jail for months if not years. This process was a type of case strategy and tactics game in which the judge is a player in all trial litigation.

The big difference now is that with the types of video evidence and accessibility that we have today, it’s more difficult to manipulate judges. One positive result is earlier dismissal of false police assault cases.

Over the last 20 years there have been incredible shifts in the criminal courts system. First, and most significantly, is the shift away from mass incarceration and towards reducing recidivism with a more effective and coordinated reentry system. It’s this shift that’s really driven my own work both in and outside the courtroom. In 2013, I co-founded what is now the Philadelphia Network of Care for Prisoner Reentry, one of the nation’s first web-based directories for courts and their parolees. At the time of its founding, the website served as a one-stop-shop for former inmates and their families to find assistance in reacclimating to daily life, logging everything from mental health resources and insurance information, to how to get proper identification.?

A second change is the role of police, changing prosecutorial mindsets, and a more balanced effort to satisfy public safety and a reduce excessive force. 20 years ago, there was an accepted culture among prosecutors and police to bolster the testimony of confidential informants and jailhouse snitches, transforming them from unreliable criminals to star witnesses. Now, prosecutors exhibit more caution in relying on these individuals and about charging “resisting arrest” at face value.?

The final change, tied to mass incarceration, is the emergence of problem-solving courts, which took off with drug treatment courts and has caught on like wildfire in the fields of mental health, veterans, and reentry. These courts differ from the traditional model in that they focus on one type of offense or person committing the crime, and judges work with a team of individuals to manage cases and utilize therapeutic jurisprudence to reduce criminal offending through interdisciplinary approaches targeted to address the individual’s underlying issue. Here, the judge’s role is proactive, many problem-solving judges see their defendants once or more a month to check on their progress. These courts take non-violent offenders out of jail, and provide them with a better, more holistic system, and a better chance of reduced recidivism.

I left the criminal courts in 2013, but they had a profound impact on my life. In 2021 I founded The Accountability Project, a nonprofit dedicated to reducing recidivism by lowering drop-out rates among persons judges assign to attend drug addiction, education, and job training programs. The Accountability Project uses a special QR code system to monitor attendance in real time. A reminder that no matter where you are, there’s always a place to make a difference.

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