Philadelphia: Court moves to preserve secrecy in bail hearings

A recent federal court decision has ruled that the right to record bail hearings is not protected by the constitution, overturning a lower court decision.

In July 2019, a representative for the Philadelphia Bail Fund filed a lawsuit against several city officials in order to reserve the right to record bail hearings. Currently, the official process is that hearings in the city are held at the Stout Center for Criminal Justice within 24 hours of a suspect’s arrest. The judge then determines whether to allow the now defendant to post bail.

Unlike other court proceedings, a stenographer does not document the proceedings. Under current law, the public may attend the proceedings, but audio recordings are prohibited. And official records are not made available to the public.

Because of this practice, The Philadelphia Bail Fund took legal action demanding authorities maintain records of the decisions made in these proceedings. “Taken together, these restrictions stymie public discourse and debate surrounding Philadelphia’s evolving bail process by preventing the press and local advocates from showing the broader public how bail hearings actually work,” the lawsuit states.

In the initial February 2020 ruling, Eastern District Court Judge Harvey Bartle III favored the plaintiff, The Philadelphia Bail Fund. The courts were given 45 days to provide judicial recordings or official transcripts of bail hearings for public record, or concede the right to record by the public.

What was initially celebrated by activists and advocates for more transparent proceedings has now been taken back. Following an appeal to the Third Circuit Court, the ruling has now been overturned. With Judge Morton Ira Greenberg writing, “We must determine the parameters of the First Amendment and whether the creation of such verbatim recordings is constitutionally mandated. Put simply, just because something may be a good policy does not mean that it rises to the level of a constitutional right.”

This ruling will undoubtedly only deepen the debate over transparency within court proceedings. As the First Amendment protects the people’s freedom of speech and the press, one can only wonder why the courts would conclude that a publicly accessible bail hearing should be excluded from this.

This action continues to hinder the public’s understanding of the court system and keep us in the dark. If we are unable to adequately monitor legal proceedings, how can we ensure that people’s rights are not being infringed upon? The decision included dissent from Judge Cheryl Ann Krause, who concluded that the decision takes crucial access away from the public.

“All parties and members of the panel agree that the First Amendment right of access applies to bail hearings. Yet the Majority proceeds to eviscerate that right,” she wrote.

As the movement against mass incarceration grows, the court system is going to increasingly outrageous lengths to hide its unjust practices. But this only makes the need for continued struggle all the clearer.

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