This blog oringinally appeared as an op-ed in The Detroit Free Press (07/12/22)

Every year, thousands of Michiganders are locked up without being convicted of any crime, often because they can’t afford to pay even a few hundred dollars in bail.  

People such as Katrina Gardner.  

Arrested for disorderly conduct after a heated discussion with a teacher she believed had failed to protect one of her three young children from a school bully, Gardner’s bail was set at $630. Unable to go to work or care for her kids while being locked up for nearly a week, she was finally forced to use money set aside for rent to buy her way out of jail. As a result, her family lost their housing.  

For months afterwards, Gardner and her children had to pack into a relative’s house as she tried to get their fragile finances back in order. It was, she says, “a horrible experience” that caused long-term harm to her relationship with her family.  

Her story is disturbingly common. About half of the roughly 16,000 people locked in our state’s jails have been convicted of no crime, according to a 2020 report from the bipartisan Michigan Joint Task Force on Jail and Pretrial Incarceration. The report shows that Black people are especially hard hit. In Wayne County, Black people represent 39% of the population but 70% of those jailed on any given day. 

I met Katrina Gardner in April 2019, when the ACLU and our partners at the law firm Covington & Burling LLP, The Bail Project, and the NAACP Legal Defense Fund filed a federal class action lawsuit on behalf of her and six other Black Detroiters sitting in jail because they couldn’t afford to pay the cash bail imposed by magistrates at Detroit’s 36th District Court, one of the busiest courts in the country. We chose to sue the 36th District Court because reform there would have the greatest impact. But a similar lawsuit could have been brought against most of the state’s district courts. I can say that with some certainty because, in 2018, ACLU staff and volunteers began observing bail hearings across Michigan.  

What we witnessed was alarming. In almost every courtroom we entered, this state’s two-tiered criminal legal system was readily apparent, with the harms of unnecessary pre-trial incarceration falling hardest on poor communities and communities of color. People of means could walk free after posting cash bail while those existing on low incomes were far too often forced to sit behind bars until their trial, causing untold damage to them, their families and their communities.  

Reformers elsewhere have long shown that cash bail is largely unnecessary. Washington, D.C., for example, took on the issue 30 years ago. The result: More than 90% of defendants are normally released pretrial without having to pay cash bail. Importantly, the vast majority of those people – close to 90% – show up for their court appearances. As one D.C. Superior Court Judge noted, “There is no evidence you need money to get people back to court. It's irrational, ineffective, unsafe and profoundly unfair.” Similarly, in dozens of places nationwide, The Bail Project is demonstrating that people reliably come back to court without the financial incentive of bail. 

Given that reality, the 36th District Court’s leadership showed interest in resolving the lawsuit in a spirit of collaboration rather than fighting us tooth and nail. Now, after three years of working with the Court’s judges and their lawyers, we’ve achieved a ground-breaking agreement, creating a unique partnership between civil rights advocates and the court.  Throughout the process, Ms. Gardner and our clients provided essential guidance from their lived experience that has helped guide this partnership. 

Judges will still have the discretion to impose cash bail on a case-by-case basis, but they will only do so when they’ve determined, based on specific evidence, that the individual before them actually presents a danger to the public or a flight risk.  Critically, judges will now ask people how much they can afford before bail is imposed. Our partnership’s shared goal is that people like Gardner will no longer have to choose between freedom and keeping a roof overhead.  

By embracing these commonsense reforms, the 36th District Court has positioned itself to be a leader in addressing the longstanding misuses of cash bail that have plagued the criminal legal system statewide and nationwide for decades.   

This comes at a critical time for Michigan. Although Detroit’s courts are changing, the abuses we observed statewide continue. A bipartisan group of legislators in Lansing have proposed a package of bills that would reform the system, but those bills have not even advanced out of committee.   

The Michigan Legislature needs to act to make other court systems follow the 36th District Court’s example by adopting more just and safe pretrial legal system.  If the Legislature does not act, other court systems statewide may soon find themselves on the receiving end of a lawsuit like the one we are resolving today.  

We’re not going to rest until people everywhere in Michigan are free of any worry they might find themselves locked in a jail cell for days, weeks or even months or years simply because they lack the money to make bail.   

To quote Gardner: “This agreement is going to make a total difference.”