Michigan Bail Reform Efforts

Michigan’s cash bail system may get overhauled. Michigan Supreme Court Justice Bridget Mary McCormack is leading an informal working group to consider reforms to the state’s pretrial release system. The working group, which includes judges, state justice department officials, and several advocacy organizations, is looking to replace the cash bail system with a risk-based determination of which suspects should await their trial behind bars.

The American bail system has its roots in the laws of medieval England. In those times, an accused person could avoid pretrial detention by having a third party pledge to pay money if the accused failed to appear in court. The rationale behind the system was to give an incentive for people to show up for their trials. That incentive still exists today, but it runs afoul of modern civil rights in several respects.

Why Should the Michigan Bail System Be Reformed?

In a recent federal case, the Justice Department argued that: “Bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violate the Fourteenth Amendment.” The Fourteenth Amendment forbids state and federal governments from depriving people of their rights without due process of law. A pretrial system that makes detention hinge on financial resources – as opposed to the offender’s risk of fleeing or committing another crime – is a deprivation of liberty without due process.

Furthermore, the bail system is simply unfair and does not promote public safety. A poor person accused of petty theft may have to await trial in jail because of their inability to post bail. A person with more money, on the other hand, could be accused of aggravated assault yet be released on the streets after posting bail. This basically means that the system does not keep the most dangerous or violent suspects off the streets – only the poorest.

Multiple studies have shown that even a few days spent in jail can increase a suspect’s potential to reoffend. A two or three day jail stint increases the likelihood of a person to commit a crime upon release by 40 percent, and after a month, the risk increases by almost 75 percent. Not only are detainees subjected to harsh and sometimes traumatic conditions in jail, they are unable to work and spend time with their families. All of these factors contribute towards weakening families and increasing the potential for another criminal offense to occur.

Finally, the bond system is expensive. Because many poor people are unable to post bail, they remain in jail awaiting their trials – sometimes for months or even years. The United States spends on average $14 billion per year on incarcerating suspects awaiting trial. In Michigan, the government pays $500,000 a day on pretrial detention. The bail bond system is unsustainable at a time when local, state, and the federal governments are strapped for cash.

Michigan May Replace Bail Bonds with Risk Assessment Tools

Several jurisdictions across the nation have adopted alternatives to the cash bond system, all of which involve some version of risk assessment for each suspect. In general, these assessment tools give judges the ability to determine which accused person should remain behind bars according to:

• The likelihood that the accused will commit another crime if released
• The risk that the suspect will fail to appear in court if they are set free

Washington, D.C., which has replaced cash bail with a risk assessment system, has saved around $400 million per year in jail costs. Although 90 percent of criminal suspects in the jurisdiction are released without bail, only 10 percent of them committed another crime or failed to appear in court. Only 2 percent of released suspects were arrested for a violent crime while awaiting trial.

Pretrial Detention Reforms Will Be Met with Stiff Resistance

According to former D.C. Attorney General Bob Spagnoletti: “The world doesn’t come to an end when all of these people charged with low-level offenses are released.” However, the American Bail Coalition, a lobby firm that represents the bail bonds business, continues to argue that the cash bail system is essential to public safety. Furthermore, the debates regarding pretrial detention reform in Michigan will likely be swayed by those outlier cases in which released suspects have committed terrible crimes.

As of now, the Michigan legislature has not even taken up the issue of reforming the cash bail system. Even if a bill does emerge, it may take several years for it to pass into law. Until then, you can count on a Michigan criminal defense lawyer to help you through the pretrial system. If you’ve been charged with a crime, call Davis Law Group today at (313) 818-3238 for a free and confidential consultation about your case.