In 2021, a year of record crime, Philadelphia made national news with revelations that Davis L. Josephus, then only twenty years old, was charged with fatally shooting 25-year-old Milan Loncar in a robbery attempt while Loncar was walking his dog. Josephus had been arrested five times since January 2019.
Just two weeks prior to allegedly killing Loncar, Josephus was granted lowered bail in an armed kidnapping and assault case on charges of motor vehicle theft and kidnapping and aggravated assault of a prison guard, walking free to graduate to murder. The Loncar case came less than a year after the murder of Philadelphia Police Corporal James O’Connor, who was shot serving a warrant on suspects who had lengthy, recent criminal records for violent, armed offenses.
Facing national media backlash for Loncar’s murder, Philadelphia District Attorney (DA) Larry Krasner blamed the judiciary for Josephus’ bail reduction from $200,000 to a paltry $20,000, then issuing a statement claiming prosecutors from his office had argued for Josephus to be held in the separate cases from last year, but saw his bail “lowered by judges” despite objections. “The judiciary sets bail, after hearing arguments from the prosecution and the defense.”
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Krasner’s statements have since been refuted not only by members of the judiciary, former prosecutors, and victims of violent crimes committed by those released and undercharged by his office, but by charging documents showing that his office has seemingly dropped charges on numerous felony cases where violations of bail or probation may be triggered. These documents show numerous suspects arrested for violent crimes while on bail and/or probation for recent felony crimes, with little or no requests by the District Attorney to revoke bail or violate probation and remand these violent criminals to jail.
This trend exposes how Krasner has “made good” on campaign promises of decarceration and ending cash bail in America’s sixth largest city. Furthermore, as Krasner has frequently joined other Philadelphia politicians in demanding a set of arguably unconstitutional municipal gun laws, records indicate that his District Attorney’s Office has not effectively prosecuted suspects charged with numerous existing gun laws.
Exploiting an ineffective system
Historically, after a suspect is arrested, the DA’s charging unit is responsible for seeking the appropriate bail relative to the risk posed to the community. If suspects have records of prior arrests, there is significant risk that they may commit additional crimes and thus victimize another member of the community if they are released on bail. Furthermore, if the suspect is currently on bail, probation and/or parole, the DA’s charging unit is responsible for notifying their probation officer so they can file the required motions to the sentencing judge and have the parolee remanded to prison for the remainder of their sentence.
In more egregious cases where the suspect is on bail for another pending charge when arrested on new charges, it is also the DA’s responsibility to schedule what is called a “Daisey Kates Hearing.” Named after the Pennsylvania case Commonwealth v. Daisey Kates, these hearings present the most recent arrest as grounds for probation revocation based on the arrest for the new crime, not the conviction. Put simply, if you are on probation, you are required to work, pass drug tests, stay away from the criminal element, and avoid negative police encounters. Therefore, by being arrested on new charges, you have violated your conditions of release and, in a working system, the District Attorney’s office schedules a hearing with the judge on that prior case to have you remanded back to jail on those violated terms.
“When a person is on probation and then arrested for new crimes, a judge has the ability to find the defendant in direct violation of probation. They are in “direct” violation because their offense is a new crime, as opposed to a technical violation such as not complying with requirements on probation,” says attorney Tom Mandracchia, a former Krasner recruit and Assistant DA in Philadelphia “When I was at the office — [and colleagues there tell me] this is still true today — Krasner had more or less abandoned Daisey Kates hearings. Normally, the Commonwealth would motion the probation judge for such a hearing, but it was policy not to do so.”
It is the responsibility of the District Attorney to offer guidance on bail requests and it’s the responsibility of the public defender to respond and offer their guidance. When the request is the same no matter what the charge, it’s difficult to take recommendations seriously. He [Krasner] is abdicating his responsibility.
Former District Attorney R. Seth Williams, Krasner’s predecessor, also confirmed the DA’s responsibility in scheduling Kates hearings to make sure suspects already on supervised release aren’t allowed to walk free when charged with new crimes.
“We had dedicated staff responsible for working with probation and scheduling Daisey Kates hearings, which is simply not happening now under Krasner,” Williams continued. “Even scarier is that Krasner is dropping new charges that may result in a violation, even on gun cases.”
Williams’s statement is supported by charging documents obtained by Broad + Liberty which show gun charges inexplicably nolle prossed (i.e. dropped) by the District Attorney after charging. This includes those of Marcus Whitehead, who is currently an at-large suspect wanted for an August 6th murder in North Philadelphia. Despite a recent criminal record, Whitehead was out on bail for another felony charge of possessing an illegal gun at the time of the murder. Despite a criminal record, his bail was set at only $20,000 and then reduced to no money required and he was released — on charges the later nolle prossed.
This calls judicial discretion into question. In most jurisdictions, the magistrate or local judge at arraignment will look at the suspect’s record and make a bail determination accordingly. In most circumstances, when a suspect is on bail, probation, or parole at the time of their arrest — they are almost always held over in jail pending a preliminary hearing. This is not the case in Philadelphia. As mentioned in the Loncar case, Krasner has focused the blame for this on the courts, but if it’s his office that fails to request high bail or schedule Daisey Kates hearings, current judicial process does not account for this critically missed link in the chain of command.
“When addressing bail, all relevant facts are considered including, prior criminal history, arrests and convictions. Whether a defendant is currently on probation/parole. And all open cases in our jurisdiction and elsewhere,” said former Magistrate Judge Jim O’Brian, who retired after 23 years in the Philadelphia courts system. “It is up to the probation/parole officer to pursue detainers, but it was not unusual to receive a detainer from a judge who sentenced a defendant previously. However, under [former DA] Lynn Abraham, there was a full time employee in the charging unit who would coordinate with probation/parole,” he said, confirming that it was their responsibility to assure notifications were made and detainers were filed. “Our remedy, if no detainers are lodged, is to set higher bail.”
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O’Brian noted that magistrates previously had more discretion as to setting bail, and that it didn’t always result in harsher punishment. “For most of my tenure as a magistrate there were issues with prison overcrowding. So if someone with a history was arrested for a nonviolent offense like retail theft or simple possession, etc., we probably would steer away from setting cash bail. But otherwise it’s something to definitely take into consideration,” O’Brian concluded. “If someone has an active bench warrant, while I had discretion to resist, I almost always sent them to the prison for a bench warrant hearing.”
What is illustrated by Williams, Mandracchia, and O’Brian is how procedural changes made under Krasner have procedurally eliminated most cash bail in Philadelphia.
“Up until my retirement and beyond as far as I know, Krasner’s office asked for $999,999 on every single case in which they asked for bail — regardless if they are misdemeanors or felonies,” O’Brian detailed. “It is the responsibility of the District Attorney to offer guidance on bail requests and it’s the responsibility of the public defender to respond and offer their guidance. When the request is the same no matter what the charge, it’s difficult to take recommendations seriously. He [Krasner] is abdicating his responsibility.”
These practices by Krasner’s administration and lack of common sense discretion in the judiciary have driven activists on social media to make direct correlations to violent crime. This further calls the issue of bail reform into question, considering the skyrocketing crime in New York and Chicago — who have both officially codified radical bail reform laws. In most other jurisdictions, when a suspect appears before the bench on new charges and has other charges pending, or worse — a long, recent, record — that judge can simply hold them without bail. This simple risk-management tool has served to protect the public for over a century.
Meanwhile, in Philadelphia, the Krasner administration is celebrated for reducing the population of suspects in prison and/or on probation, despite the fact that violent crime has risen to historic proportions on his watch.
This is how defendant Dominique Perkins can freely walk the streets of Philadelphia following numerous gun, narcotics, assault, and other charges. His May 2022 gun charges were nolle prossed by the DA’s office, even though he has illegal gun charges pending from 2021. Then there’s Jeremi Redd, who has a lengthy criminal record which includes numerous armed robbery and illegal gun charges, who was just arrested on July 31, 2022, for stalking and violating a protection from abuse order — whose illegal gun case was inexplicably nolle prossed on May 26, 2022 — despite recent narcotics priors pending from 2019.
As the chief elected law enforcement officer of Philadelphia, Larry Krasner needs to take responsibility for the management practices enacted by his office that are allowing violent felons to walk our streets while they await trial. At the same time, our elected judges and state legislators need to codify judicial discretion so that they are able to hold suspects who clearly pose a threat to the community in jail even if and when the District Attorney’s office fails to make the notifications to other agencies and judges.
A. Benjamin Mannes, MA, CPP, CESP, is a Subject Matter Expert in Security & Criminal Justice Reform based on his own experiences on both sides of the criminal justice system. He has served as a federal and municipal law enforcement officer and was the former Director, Office of Investigations with the American Board of Internal Medicine. @PublicSafetySME