Editor’s note: The following article was originally published in April, 2021. Given the recent interest in bail matters in Philadelphia, we are republishing with permission from the author, Stu Bykofsky.
Jim O’Brien was Larry Krasner’s punching bag for a few years — he and his colleagues in Arraignment Court, where bail is set for those accused of crime.
He could not talk about it while he was still an employee of Municipal Court, which oversees Arraignment Court. His retirement in February after 23 years of service as a magistrate, plus nine previous years in Family Court, has set him free, like a hawk on the wing.
His story centers around how progressive D.A. Krasner hypocritically used a bait-and-switch scheme to shift blame to Municipal Court for his failed policies.
It is a strange story, too, about how an anti-cop defense attorney became Philadelphia’s D.A., and boasted he would end most cash bail, among other “reforms.“
He removed from the bail process 25 criminal charges including prostitution, unauthorized use of a motor vehicle, resisting arrest, providing false identification to law enforcement, along with several types of drug and theft offenses. He downgraded many crimes to a summary offense as being not worth a prosecutor’s time.
The free-from-bail list included crimes classified as felonies by Pennsylvania law, making his policy more woke than bail reforms adopted by prosecutors in other jurisdictions.
He decriminalized shoplifting under $500, identity theft, forgery, drunk driving, and he required prosecutors to tell the judge before sentencing the cost of incarceration, as if justice should be influenced by cost.
Briefly, here’s how bail works: The defendant makes a brief appearance before a magistrate (previously called a bail commissioner) who explains the charges to the defendant, picks a time and date for trial, sets bail with input from the district attorney’s office and defense counsel. A lawyer is appointed for defendants who need one.
The idea of bail is to allow defendants — presumed innocent before trial — to remain free and to guarantee their appearance for their court date. A much more detailed account of bail was published in Philadelphia Weekly last year.
When Krasner ran for D.A. in 2017, he criticized not only the police, the operation of the D.A.’s office, but also the bail process.
Shortly after his election, perhaps sensing a friendly presence in the D.A.’s office, the ACLU and Philadelphia Bail Fund started appearing in his Arraignment Court regularly, says O’Brien. The DAO, the ACLU and the Bail Fund were like the Three Amigos.
Then the ACLU and Bail Fund sued Arraignment Court magistrates, claiming the court did not follow its own procedures in setting bail.
The Pennsylvania Supreme Court appointed a special master, respected Senior Judge John M. Cleland, to investigate. His report found the bail system was “fundamentally sound,” adding that “any attempt to conduct a wholesale overhaul would be politically, organizationally, and fiscally unrealistic.” Municipal Court President Judge Patrick Dugan declined comment.
READ MORE—Law enforcement pros condemn Krasner’s ‘willful blindness’ on Philly violence
Back to Krasner, whose office did not respond to an invitation to be interviewed for this column. After promising to dismantle bail, as the pandemic arrived in Philadelphia, Krasner pirouetted and started setting million-dollar bail for garden variety suspects.
Well, not million-dollar. He was actually asking for $999,999 bail bonds, $1 less than $1 million, for many, many offenses.
What the heck happened? Did Krasner have some kind of a weird, pro-prosecution epiphany?
Of course not. He remains a SJW — Social Justice Warrior. His tactic was a trick to force magistrates to lower bail to normal levels — and then blame them for rising crime.
Why $999,999?
If bail was $1 million or more, “the prison would hold them in protective custody,” which would keep them in jail, says O’Brien, 60. That would conflict with Krasner’s desire to continue depopulating Philly’s prisons.
While Krasner likes to take credit for lowering prisoner numbers, the process actually began in 2015, under Mayor Michael Nutter, using the first of several MacArthur Foundation grants.
The city has lowered the jail population — now about 4,800 inmates — by more than 40% since 2015.
After promising to dismantle bail, as the pandemic arrived in Philadelphia, Krasner pirouetted and started setting million-dollar bail for garden variety suspects.
One reason for that, says Carlos Vega, who opposes Krasner in the May 18 Demiocratic primary, is Krasner’s aversion to prosecution. He points to an Inquirer analysis, for instance, that reported arrests for illegal gun possession had tripled during Krasner’s term, but convictions plunged from 63% to 49%.
As his $999,999 bail demand became the new normal, Krasner knew it would not mean more people would remain locked up.
“It just blew us away when he started making those requests,” O’Brien told me. “I’m like, this does not make any sense at all, this does not help with the administration of justice,” he says.
“He has publicly stated that this was [to be] only used for violent offenders or very serious felony cases,” says O’Brien, but the excessive bail “is extremely often used as a request in misdemeanor cases. I’ve had it requested in retail theft cases, auto theft cases, even a disorderly conduct case involving a homeless person.”
In 2000, O’Brien recalls being a magistrate when people protesting the Republican National Convention were hauled into court.
“Mr. Krasner represented the leaders of the protesters” and appeared before him, says O’Brien. District Attorney Lynne Abraham’s office requested bail ranging from $250,000 to $1 million.
“Mr. Krasner stood in front of me at those hearings and talked about how those high bail requests were unconstitutional,” says O’Brien. “Now he routinely asks for a dollar less than a million dollars bail.”
To O’Brien, that’s hypocrisy.
It’s not just O’Brien who’s feeling back-stabbed.
Remember the Three Amigos I mentioned earlier? Well, the Philadelphia Bail Fund is no longer on the Krasner Band Wagon. In a Feb. 4, 2021 op-ed in The New York Times, executive director Malik Neal pushed back against Krasner’s policies — hard.
Last September, Neal wrote, an unemployed, pregnant, Black woman “faced her first-ever criminal charges, but Mr. Krasner’s office requested a $999,999 bail, which would have kept her trapped in a mildewed, roach-infested jail, awaiting trial without having been convicted of a crime, while Covid threatened her and her baby.”
Here we had the hypocrisy of “a ‘progressive’ prosecutor lauded by the media while using the very practice he campaigned against to detain a poor, pregnant, Black woman,” wrote Neal.
“He is encouraging magistrates to set unattainable bail,” Neal wrote.
Vega was a 35-year veteran of the DAO, a top homicide prosecutor who was dismissed shortly after Krasner took over, and shortly before the murder rate started to climb.
Krasner uses the $999,999 bail to give himself “complete deniability if something happens,” says Vega. “He is actually fracturing reform.”
The $999,999 is a farce, says O’Brien. Krasner very well knew that the six magistrates would not allow the insane bail demand to stand, that they would reduce it to reasonable levels.
And that’s when a cynical Krasner would strike, claiming the magistrates were releasing bad guys while the man known as “Let ‘Em Loose Larry” was an innocent bystander.
“It is such a falsehood. But just because we do not grant his 999, does not mean we are not setting substantial bail,” says O’Brien, who says he didn’t hesitate to set six-figure bail for repeat offenders or those accused of violent crime.
“He has often blamed us for the increase in gun violence, which has gone up each year he has served,” says O’Brien, “but it’s not unusual for his office to ask for high bail in our courtroom and then a couple of days later agree to a low bail.” Bait-and-switch.
Krasner is fooling with the justice system itself, says Vega. “You’ve got to be honest with the judge, you can’t be disingenuous.”
Stu Bykofsky publishes regularly at his centrist blog, StuBykofsky.com.