About Bail Reform
Fixing a Broken Bail System
Why the Time is Now
Michigan’s bail system is badly broken. On any given day, about half of the state’s jail population is locked up because they can’t afford to pay for their freedom. Black and Brown people, and our poorest residents, bear the brunt of this crisis as they are more often arrested for minor offenses, ensnaring them in a legal system that is unfair and unjust. In 2020, the Michigan Legislature passed a multi-bill package introducing sweeping reforms that go a long way in transforming the system. But we’re not there yet. Over the next year, we’ll be pushing for new laws to reform Michigan’s unjust bail system. Here’s what you need to know about our state’s broken bail system and how you can help us reform it.
What is the purpose of bail and how is the bail system broken?
Bail was originally intended to ensure a person returns to court to face charges against them. But instead, the money bail system has morphed into mass incarceration of the poor. It punishes people not for what they’ve done but whether they have money to pay for their freedom while waiting for their case to go to trial. Our broken bail system especially harms black people and other people of color as they are incarcerated at rates far higher than whites.
What is cash bail?
Cash bail is the amount of money a person accused of a crime but not convicted must pay to go free while they wait for their case to go to trial. Bail is used as collateral to ensure the person returns to court.
If the person cannot pay the cash bail amount ordered by a judge, they must stay in jail until their case resolves or come up with the money.
What does pretrial mean?
Pretrial is a term that describes the legal proceedings that take place before a person’s case goes to trial, including the appointment of an attorney if the person can’t afford one and whether to set bail or release the person on their own recognizance.
Why is the ACLU of Michigan focusing on the issue of cash bail?
Cash bail is a key driver of mass incarceration. Reforming the cash bail system is critical to our Campaign for Smart Justice, which aims to end racism in the criminal legal system and reduce mass incarceration by half.
It is also one of the most profoundly unfair and harmful parts of the criminal legal system. It allows someone’s wealth to determine whether a person will return home or stay locked in jail while awaiting their day in court. This unfair and unjust system punishes those without money even before they have had a chance to defend themselves in court and disproportionately impacts Black people and other people of color.
People can be trapped behind bars while awaiting trial, sometimes for days, weeks, or months. Meanwhile, people with access to money can buy their freedom and return home even if charged with the same crime. As the American Bar Association noted, “Our legal system punishes poor people far more often and more harshly than the wealthy, often through pretrial detention and cash bail.”
Furthermore, unless a person can be shown to be a threat to public safety or strong reason to believe they won’t show up for court if released, there is no reason to keep that person in jail.
What are the effects of being jailed while awaiting trial?
Studies have shown that just a few days spent behind bars can set off a downward spiral for an incarcerated person and their family. Jobs, housing, even custody of their children can all be lost. Most people who die by suicide in jail do so shortly after they’ve been locked up. Also, if a person is forced to remain in jail prior to trial, they are much more likely to accept a plea bargain, even if they are innocent.
Additionally, the Center for American Progress reported, “pretrial detention can actually increase a person’s likelihood of rearrest upon release, perpetuating an endless cycle of arrest and incarceration.” In other words, ending cash bail would make communities safer and lead to a reduction in crime while saving taxpayer money by incarcerating fewer people.
How many people are sitting in Michigan jails because they can’t afford bail?
According to the Michigan Joint Task Force on Jail and Pretrial Incarceration appointed by Governor Gretchen Whitmer, of the 16,600 people being held in Michigan jails in 2016, approximately half were detained because they couldn’t afford to pay their bail.
Are there specific reforms you will be pushing for?
Yes. The ACLU of Michigan will be working with the Michigan Legislature to pass legislation that will:
– Create fairness and equality by establishing consistent statewide guidelines for determining the conditions of release prior to going to trial.
– Unless someone is deemed a threat to public safety, keep people in their communities by presuming release on personal recognizance without conditions rather than routinely setting cash bail.
– Prioritize support over punishment by offering proven alternatives to incarceration, such as rehabilitative programs for people struggling with mental health issues or substance use disorder.
– End systemic racism in Michigan’s legal system by exposing and eliminating policies, practices, and barriers in the pretrial system that disproportionately impact people of color.
– Promote transparency by requiring courts to regularly share data on their pretrial release decisions as a tool for the public to evaluate the effectiveness of reform policies.
What role does the commercial bail bond industry play in the current system?
Multinational insurance corporations and for-profit bail bond companies make billions in profits, all on the backs of low-income people and disadvantaged communities. That’s because if you want to get out of jail and you cannot afford it, you have to turn to one of these companies to secure your freedom. According to a recent report by Color of Change and the ACLU Campaign for Smart Justice, fewer than 10 companies are responsible for a significant majority of the $14 billion in bonds posted by for-profit bail companies each year. The industry collects around $2 billion a year in profits.
These companies require an upfront, nonrefundable fee—10 percent of the full fee in Michigan—to pay for your bail. Yet often times families cannot afford this fee and end up paying through installment plans with high interest rates, trapping them in years of debt. So, individuals with enough money to pay their entire bail upfront generally receive all of their money back when their case is resolved, but if a for-profit bondsman bailed you out — even if you never miss a day in court and are found not guilty — you and your family are still financially beholden, many times for years paying them back.
Won’t large numbers of people fail to show up for court if they aren’t at risk of losing the cash bail they’ve posted?
No. The evidence is in, and the answer is clear. Studies in Washington, D.C. and New Jersey – two places where reform has taken root — “demonstrate that defendants’ rates of appearance for trial after reforms were implemented are similar or better to rates of appearance before the reforms,” according to the Center for American Progress. “Similarly, the rates of rearrest for people who were released pretrial are comparable to those before the reforms were instituted.”
Why does the ACLU of Michigan think it can succeed in reforming the state’s cash bail system?
For one thing, the law is on our side. In a 1987 opinion, then-Supreme Court Chief Justice William Rehnquist wrote: “In our society, liberty is the norm, and detention is the carefully limited exception.”
That clearly is not the case in Michigan, but the legal underpinnings for reform continue to mount. Courts in Alabama, Illinois, Louisiana, Missouri, Mississippi, Tennessee, Texas and Washington, D.C. have all ruled that pretrial detention caused by an inability to pay for one’s freedom is discriminatory.
In 2019, the ACLU of Michigan and others filed a federal class action lawsuit against Wayne County’s 36th District Court for its unconstitutional bail system, which the lawsuit seeks to overhaul. That case remains under way. A victory will set a precedent for reform across the state.
Are lawsuits your only strategy?
No. Along with legal victories, we are seeing momentum for legislative reform building in states across the country. That is certainly true here in Michigan, where, in 2020, the Legislature passed a package of nearly 20 bills that will prevent people from being sent to jail in the first place for a host of minor infractions. So, the time is now to build on those reforms to keep pushing for more change that will result in a fair criminal legal system. Taking on our broken bail system is a major component of that.
How can I become involved?
We’re building regional teams across the state to help us pass bail reform in Michigan. Volunteers will work locally and with their elected officials to advocate for bail reform legislation. Join a volunteer team today!