Bills seek to make bail system more fair for low-income defendants

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By NICK KIPPER
Capital News Service

LANSING — An overhaul of the state’s bail system to focus more on a person’s individual case and legal history rather than the ability to pay is being pushed by legislators and criminal justice reform advocates.

People charged with crimes must pay their bail directly to the court. If they are unable to afford the bail set, they are detained in county jail, possibly until trial. The bail system has been used historically to ensure defendants show up for their court date.

“That’s a period of time where you’re not going to your job, not earning money, not able to care for your kids,” said John Cooper, the associate director of policy and research at Safe & Just Michigan, a nonprofit organization that focuses on criminal justice reform. “There needs to be an individualized look at someone’s case before taking away their liberty.”

The time between an arrest and a pretrial hearing usually takes a few weeks, and it costs taxpayers $60 to $75 a day to house someone in a county jail, according to Cooper.

Defendants often choose to plead guilty to avoid further jail time if they cannot afford bail, regardless of innocence or guilt, Cooper said.

A nine-bill package awaiting action in the House Judiciary Committee would ban the use of bail schedules, which judges often use to pre-determine bail amounts for defendants, regardless of their personal circumstances. Such bail schedules can allow higher-income people to avoid jail for the same charges that put lower-income people behind bars and has been challenged under the U.S. Constitution.

Sponsors include Reps. David LaGrand, D-Grand Rapids; Julie Calley, R-Portland; Tommy Brann, R-Wyoming; and Sara Cambensy; D-Marquette.

Safe & Just Michigan, the American Civil Liberties Union of Michigan and the Mackinac Center for Public Policy, which has written a report on the issue, also support the legislation.

Another major change in the package would expand the use of appearance tickets for all misdemeanors. That means defendants charged with relatively minor crimes wouldn’t be jailed before they must appear in court.   

“As long as someone shows up for court and doesn’t do anything problematic before the date, their record stays clean and they can continue their daily life with work or school and let the justice process play out separately,” Cooper said.

Most stakeholders support changing the bail system in concept, but there’s disagreement in what the details should look like, Cooper said.

The American Bail Coalition, based in Franklinville, New Jersey, is a trade association that lobbies for the bail industry and insurance companies that insure bail bonds. It is a major voice opposing bail changes nationwide, according to Cooper.

People who cannot afford bail themselves often turn to a bail bondsman, which requires a nonrefundable fee of 10 percent, Cooper said.

“Michigan’s bail system already has significantly reformed itself over the years to deal with the many problems caused by over-dependence on pretrial incarceration,” said Jeff Clayton, the executive director of the American Bail Coalition, in a written statement. “We do not think that large -changes,, including reducing the ability for judges to set monetary bail in appropriate cases is warranted.”

A defendant’s bail is determined by a judge, and the goal of the report and the legislation is to help judges understand the consequences of keeping people who haven’t been convicted in jail because they can’t afford to pay, said Kahryn Riley, the author of a report on the state’s bail system by the Mackinac Center for Public Policy.

The Midland-based center is a free-market-oriented think tank.

“It really does come down to the money and doesn’t account for the severity of crime,” Riley said. “In terms of public safety, I think most people are pretty surprised to learn that often more dangerous people who can afford bail go free.”

Judge Thomas Boyd of Ingham County District Court recently completed a six-month pilot program that released anyone accused of a misdemeanor who promises to appear in court, issuing them a personal recognizance bond where no money changes hands.

Riley said the failure-to appear-rate in Boyd’s court declined during the pilot period.

Arizona, Illinois, Maryland and New Mexico passed legislation in 2017 that minimizes the impact of a person’s financial standing on decisions regarding their release. In August, California became the first state to abolish cash bail completely.

Riley doesn’t advocate eliminating cash bail altogether, but suggests judges rely on alternative methods before defaulting to bail, such as electronic monitoring, curfews, travel restrictions and no-contact orders.

“It’s important for judges to understand that they need to make individualized decisions that actually account for each defendant, and that’s due process,” she said.