Tens of thousands of people in Michigan are locked up in jail, before being tried or convicted of any crime, because of cash bail. Throughout the state, it is common for judges to require people who have been arrested to post cash for their release—in other words, to buy their freedom—or else remain incarcerated while they await trial, even for very minor charges. In 2019 the ACLU filed a federal class action lawsuit against the judges of the 36th District Court in Detroit, arguing that this practice is unconstitutional because it creates a two-tiered legal system in which the freedom of a person who is presumed innocent depends entirely on their ability to afford bail, a clear violation of due process and equal protection. Locking people up while they await trial inflicts devastating harm on the lives of people who are arrested and their families, including job loss, child custody issues, eviction, and missed medical or educational commitments. This practice also coerces many defendants accused of lesser crimes to plead guilty just to get out of jail. And the harm caused by using cash bail falls disproportionately on people of color, who already bear the brunt of overpolicing and racism in the criminal legal system. In July 2022, after years of negotiations, we announced a historic settlement agreement with the 36th District Court that will overhaul the bail system in Detroit. The agreement will drastically reduce pretrial detention, limiting cash bail to cases where a judge finds, based on evidence specific to a particular individual, that the individual would present a flight risk or danger to the public if released. The agreement will last between two and five years, will involve regular reporting of data, and is expected to be a model for reforming bail systems in Michigan and around the country. (Ross v. Chief Judge of the 36th District Court; ACLU of Michigan Attorneys Phil Mayor and Dan Korobkin, with investigator Giancarlo Guzman; National ACLU Attorneys Brandon Buskey and Trisha Triglio; co-counsel Twyla Carter of the Bail Project, Amia Trigg of the NAACP Legal Defense Fund, and Aaron Lewis and Marta Cook of Covington & Burling.)
