Policymakers are considering several ideas to reform the bail process in Michigan. Broadly speaking, proposed reforms aim to tie bail decisions more closely to key risk factors: whether the defendant is a danger to the community and whether the defendant is a flight risk.
One such reform would convert nonbinding court rules into law. The court rules say that judges making bail determinations should look at several factors. These include the defendant’s criminal record, record of appearance or nonappearance at other proceedings, history of substance abuse, mental condition, and moral character; the seriousness of the offense, availability of responsible citizens to vouch for and monitor the defendant, and his ties to the community. These court rules are not mandatory, however, and state law merely requires judges to consider the nature of the offense, the defendant’s criminal record, the protection of the public and the defendant’s probability of appearing.[55]
The state could codify these court guidelines in statute, making the factors mandatory considerations rather than nonbinding ones. But new research has shown that these factors may not actually affect a defendant’s likelihood of making future court appearances or posing a risk to the community. For instance, a prior misdemeanor or a prior felony conviction does not increase the risk that he will fail to appear for trial, but it does increase the likelihood that he will engage in future criminal activity.[56] Meanwhile, prior failures to appear do not increase the odds that the defendant will commit a new violent crime, but have been linked to a higher likelihood of failing to appear again.[57] The defendant’s age, the nature and number of previous convictions, past failures to appear and the amount of time that has lapsed since the most recent failure to appear are evidence-based factors that must all be considered when making a pretrial release decision[58] Accounting for these factors for each defendant would give judges a better way to make fair and consistent decisions.
Another reform proposal would require judges to take into account a defendant’s financial standing when setting the bail amount and require defendants to make disclosures under oath regarding their assets. This would guard against courts setting bail amounts that defendants have no chance of affording. While the idea has merit, it would be better if implemented in conjunction with an assessment tool to ensure that courts do not over-rely on cash bail. Setting lower cash bail amounts, by itself, will not address the underlying issue that it would be just as safe and effective to reduce the use of cash bail overall.
Reformers have also proposed eliminating “interim bail.” This practice is an exception to the usual pretrial release process, but it is a problematic one. While courts must make a judge or magistrate available to arraign felony defendants every day, the same is not true for misdemeanor defendants.[59] In those cases, courts are permitted to “work with local law enforcement to develop an interim bond schedule for the release of offenders pending arraignment on a misdemeanor offense.”[60] Rather than hold a bond hearing, the practice of interim bail allows courts to specify “standing” cash bail amounts for different offenses. When a police officer executes an arrest, he may collect the bail money that corresponds with the alleged offense from the offender and release him with an order to appear in court, rather than transport him to court for an arraignment or bond hearing.[61] Courts may also issue arrest warrants that specify an amount of interim bail for a particular defendant.[62] This policy is intended to allow those who can afford bail to avoid being detained until their arraignment. But it resembles the use of “bail schedules,” which have been condemned as unconstitutional by the U.S. Department of Justice and face legal scrutiny in several jurisdictions for disproportionately burdening the poor.[*] The decision whether to detain someone in advance of their arraignment would be better based on the arrestee’s risk of flight or danger to the community, but interim bail asks only whether he can afford to pay the prescribed amount.
Finally, policymakers should require courts to measure and report the outcomes of their bail practices. This is an important provision because, as noted throughout this report, there is currently a dearth of data on how courts use bail. This would have the benefit of allowing a more thorough analysis of how well bail functions in Michigan and could lead to future improvements.
But lawmakers should not stop there. As suggested by Maryland’s example, successful bail reform is not self-executing — it may require additional changes to the way courts operate in order to function efficiently. For instance, if more people are going to be eligible for bail under these reforms, courts and communities may need to beef up their pretrial support structures. Bail is more likely to work for both the defendant and the court if there is someone to hold those out on bail accountable for resolving underlying issues such as addiction, mental illness or unemployment, when these issues contribute to flight risk or dangerousness.
This does not necessarily mean that courts will need to make massive investments in pretrial services; simple tools can help. For instance, courts in California, New York and several other states have been testing the use of text message reminders to notify defendants of approaching court dates, which were shown to be effective at reducing failures to appear.[63] Practices like this one, which accounts for the practical fact that many people lack stable housing at which to receive hearing notices by mail, set defendants up for success and make justice more efficient, effective and accessible for everyone — which should be the ultimate goal of bail reform.
[*] Ben Rosen, “DOJ: Stop Jailing People Just Because They Can’t Afford Bail,” The Christian Science Monitor, Aug. 21, 2016, https://bit.ly/2vOvpfo. The DOJ submitted an amicus brief in a class-action lawsuit before the 11th U.S. Circuit Court of Appeals, noting that fixed bail schedules discriminate based on indigence because they allow for the release of only those who can afford to pay. Relevant court cases include: Stack v. Boyle, 192 F.2d 56 (9th Cir. 1951); Pelekai v. White, 861 P.2d 1205 (1993); Clark v. Hall, 53 P.3d 416 (2002); Jones v. City of Clanton, Civil Action No. 2:15cv34-MHT (WO).