Although the stated goals of Michigan’s bail system are to bolster public safety and ensure that criminal defendants appear in court for their trial, the rules guiding pretrial decisions do not necessarily enable it to meet those goals. The current model is primarily based on a defendant’s ability to pay: Those who can afford bail go free — even, in some cases, if their crime was serious. Those who can’t pay stay in jail, even if their crime was minor and nonviolent.
Moreover, the system is not set up to reasonably predict a defendant’s likelihood of returning for trial. Michigan judges must work with necessarily subjective impressions of defendants, rather than relying on assessments that offer a more objective evaluation of a consistent set of research-backed factors. When low-income, low-risk defendants inevitably end up in jail awaiting trial, taxpayers must foot the bill; in some counties, this cost can exceed $100 per person per night.[40]
Individuals and organizations representing a variety of different interests have been calling for reforms to the way bail works in Michigan. Gov. Rick Snyder dedicated a portion of his 2015 “special message” on criminal justice issues to call for reforms to pretrial procedures. In the address, he pointed out that 60 percent of jail inmates statewide have not been convicted of a crime but are incarcerated nonetheless, even though the vast majority of criminal offenses allow for bail.[41] The Michigan State Court Administrative Office, an agency of the Michigan Supreme Court, issued a memo in 2016 urging judges to adhere more closely to court rules directing them to release inmates on personal recognizance if possible and only impose bail when it is truly necessary. Many observers, however, think the memo was ineffective, and so the reform effort has continued to grow.[42] Michigan Supreme Court Justice Bridget Mary McCormack convened a working group in 2017 to address the shortcomings of cash bail and explore possible reforms.[43] The Mackinac Center has also convened a coalition of lawyers, judges, court administrators, local government officials and other stakeholders to study the issue.
This broad reform effort has been driven by new academic findings that turn many current bail assumptions on their heads. For instance, a study by the Pretrial Justice Institute has shown that asking a criminal defendant to promise to return to court for trial is just as effective at securing his appearance as requiring him to provide collateral.[44] It further found that unsecured bonds are as effective at securing public safety as secured bonds, and that the only correlation with higher bail amounts is higher jail use — not higher trial appearance rates.[45]
Moreover, some research suggests that pretrial detention creates public safety hazards, since there is a link between pretrial detention and post-trial recidivism. Defendants detained pretrial were 1.3 times more likely to commit new crimes after the conclusion of their case than those who were released. Plus, the likelihood of recidivism increases with the duration of the pretrial detention. This suggests that the pretrial practices currently employed in Michigan may actually be counterproductive to the goal of bolstering public safety when defendants are needlessly incarcerated.
Another finding that suggests Michigan’s current bail system needs reform is that defendants who are detained pretrial are more likely to be convicted and more likely to receive harsher sentences than those who obtain pretrial release, all other things being equal. Research from many credible sources —including the New York City Criminal Justice Agency, Princeton University and the John and Laura Arnold Foundation — confirm this correlation.[46] One study found that “detained defendants are over four times more likely to be sentenced to jail and over three times more likely to be sentenced to prison than defendants who were released at some point pending trial.”[47] The implications for defendants who are detained merely due to an inability to pay are critical both for their individual outcomes, and, again, for public safety.
In addition to the growing body of research demonstrating problems with many current bail practices, the process of developing reform proposals has brought several issues with Michigan’s pretrial practices to light. Some people have noted a wide disparity between the way different counties and even individual judges within counties handle bail decisions. In West Michigan county jails, for example, the portion of inmates who are held pretrial ranged from 18 to 66 percent in 2017.[48] This is problematic because it suggests that pretrial release decisions may not be based on objective criteria and that a defendant’s odds of getting bail may depend just as much on his geographic jurisdiction as his actual flight risk or dangerousness.
The cost of housing pretrial defendants varies from county to county. State law authorizes jails to bill inmates up to $60 per day to recoup this expense, but it can nevertheless still cost local taxpayers significant sums, as noted above.[49] If it is true that 60 percent of jail inmates statewide are there pretrial, and bail may only be denied in a small number of cases, then counties must be incarcerating a large number of people who have been offered bail but cannot afford it. In addition to increasing costs to taxpayers, these inmates occupy space that is meant for convicted criminals who have been sentenced to serve time, or pretrial detainees who are either unbailable or pose an unmanageable flight or public safety risk and must be denied bail.
Judges sometimes set very high bail amounts in the expectation that defendants who are accused of bailable offenses will not be able to pay and will be detained until trial.[*] It’s not clear how often or in what types of cases this tends to happen in Michigan, nor is it known how many defendants who are offered bail are able to pay it. However, judges in one Texas county who were found to be using these “workarounds” to detain bailable defendants faced litigation.[50] Lawsuits in other jurisdictions challenge perfunctory bail hearings and unaffordable bail amounts that overburden poor defendants.[51] As cases like these proliferate, they may leave Michigan increasingly vulnerable to similar accusations.
There are significant practical drawbacks to needlessly incarcerating pretrial defendants. They risk losing their job, housing and even custody of their children. (Youth are harmed significantly by the incarceration of a parent.[†]) Pretrial defendants’ absence from the community can create additional disruptions for employers, landlords and dependent family members who may rely on the detained to work, pay rent, take children to school, etc. This can create a cascading effect of negative consequences for a defendant, as losing a job makes it harder to pay legal fees or fines resulting from the arrest and creates an incentive to participate in illegal activity for monetary gain.
Some defendants may even plead guilty simply to avoid or mitigate these losses.[52] Rather than wait days, weeks or even months for trial, defendants may opt to trade a guilty plea for a negotiated sentence of “time served” that allows them to walk away without additional time behind bars, even if they aren’t actually guilty. For defendants in this situation, a guilty plea allows them to return to their personal lives and responsibilities. But now they will carry a criminal record that will burden them for the rest of their lives, potentially restricting future employment, housing and educational opportunities.
If a defendant cannot afford to pay bail to the court, his next best option may be to have a bondsman bail him out. But as described above, the bondsman’s fee is nonrefundable. Money bail left with the court, on the other hand, is refundable. That means that if a defendant is able to afford his bail, he obtains his release and has a strong incentive to make his court date so he can get his bail money back. A defendant who cannot afford his bail, on the other hand, can only obtain his freedom by paying a bondsman’s fee that may, all by itself, push him into debt or deeper into debt. He also faces weaker incentives to make good on his bail and appear in court, because the bondsman’s fee is nonrefundable. In other words, he has less to lose if he does skip bail, suggesting that court-imposed bail must be affordable to be most effective.
For all these reasons, a strong case can be made that policymakers should reconsider how bail works in Michigan. As it currently functions, bail appears to disproportionately and needlessly burden low-income defendants with legal disadvantages and disruptive absences from home and work. Meanwhile, taxpayers foot a portion of the bill for expensive incarceration which may actually make the incarcerated more likely to commit additional crimes in the future.[53] This system is hardly an ideal method of securing public safety and defendants’ court appearances.
An important point not to forget is that pretrial jail inmates are legally innocent. They have not been convicted of a crime and yet are subject to the same punishment intended for those who have been. Many pretrial inmates have been judged safe to be released and wish to be free, but are not, simply because they cannot afford even a few hundred dollars for bail — which is unfair to defendants and potentially more hazardous to public safety.[54]
[*] This practice has proved problematic in many jurisdictions, and some have faced lawsuits on the grounds that it violates due process. For example, see: O’Donnell v. Harris County, Texas, 882 F.3d 528 (5th Cir. 2018).
[†] Children of incarcerated parents are at increased risk of economic instability, emotional trauma, social stigma and committing criminal acts later in life. For a summary of some of this evidence, see: “Children of Incarcerated Parents” (Youth.gov, 2018), https://perma.cc/ D9RF-C6TS.