For nearly two years, I served as a public defender in Berrien County, representing poor people accused of committing crimes. It was a job that brought me into daily contact with the racism that exists within the criminal legal system here and the human toll it takes.
I say this all in the past tense because I recently resigned to return to the West Coast, where my wife is starting a new job and I have family. As I wrapped up my case load and packed for the move, a global pandemic continued its spread and protestors worldwide poured into the streets demanding racial justice in the wake of George Floyd’s brutal killing, and all that it has come to represent.
It has been said that we are facing two pandemics: COVID-19 and the virulent racism that has been a part of America since its founding. I’m also not the first to note that one is bringing into high relief the other. Usually, though, that is in reference to the rate at which Black people are contracting and dying from the coronavirus. There are other ways, however, that COVID-19 is exposing racism.
As a case in point, I recently looked at publicly available Berrien County Jail records to compare pre-pandemic numbers to May’s. The encouraging news is that incarceration is way down. Whether through deliberate efforts by the courts and sheriff, or simply a slowdown in arrests during a pandemic, Berrien County’s jail population fell by 50 percent since March.
But the numbers regarding race are shocking.
Even before the COVID-19 outbreak, Black people here were being disproportionately locked up at an alarming rate. In a county that is 14 percent Black, the jail population was more than 30 percent Black.
In May that number hit 55 percent.
The data available to me didn’t reveal exactly why the percentage of Black people in the Berrien County Jail has reached a point of such indefensible disparity. There are a lot of factors involved. But based on my experience, which comports with what study after study shows is the case nationally, from the people being arrested, to the bail amounts being set, to the sentences judges hand down, Black people always fare far worse than their white counterparts.
The bottom line is that, whatever the specific reasons are, the racism that plagues our criminal legal system is once again being revealed: as the jail population decreases, it is disproportionately white people going free, causing the already high percentage of Black people to skyrocket as they remain caged.
I can also tell you this from experience: Some number of people still locked up and facing the possibility of a COVID-19 death sentence as a result, are there only because they are too poor to buy their way out —in some cases unable to come up with even a few hundred dollars to avoid being locked up until they are able to have their day in court.
And if they can come up with the cash needed to get released on bail, they can’t afford the cost of the electronic monitors they are often required to use as a condition of release. The charge for these “tethers” ranges from $90 to nearly $150 a week, plus fees. Paying that much is impossible when your income is $400 a week or less, which is the case for almost all of my clients.
They are people caught up in a system rife with racism and the injustice it generates, a system that reflects the differences that often exist between white and Black America. Here in Berrien County, we have a graphic example of that in the form of the two cities existing side-by-side, divided by the St. Joseph River as it flows into Lake Michigan.
There is St. Joseph, which has a population 8,300 and is 85 percent white. With a median household income just above $60,000, fewer than 8 percent of the residents live below the poverty line. In Benton Harbor, which has a population of about 9,900, about 87 percent of the residents are Black. Their median household income is about $20,000, with more than 45 percent living in poverty.
Let that last statistic sink in: Two similarly sized cities, adjacent to each other, on the shores of Lake Michigan, and in one the poverty rate is nearly six times higher than the other, with the only difference being the skin color of the residents.
Given that level of poverty, is it any wonder that a vastly disproportionate number of Black people are sitting in jail because they are too poor to afford even small amounts of bail or the cost of a tether?
Simply put, we have a criminal system that punishes people for being poor, especially if you are a person of color. The good news is that momentum to make fundamental, far-reaching changes to that system is building. In this state, a report from the Michigan Task Force on Jail and Pretrial Incarceration has provided a solid platform that should serve as a launch pad for major reforms.
That Task Force—a diverse, nonpartisan group that included law enforcement, prosecutors, and judges as well as criminal defense attorneys and victims’ advocates—recommended changes that, if adopted, would go a long way toward keeping the people I represented in Berrien County out of jail.
The task force highlighted the need to overhaul the current bail system, recommending that “all defendants shall be released on personal recognizance or unsecured bond … unless the court makes an individualized determination that the person poses a significant articulable risk of nonappearance, absconding, or causing bodily harm to another reasonably identifiable person or themselves.”
The ultimate goal, according to the report, should be transitioning “to a pure detention-and-release system, similar to policy frameworks in New Jersey, New Mexico, the District of Columbia and the federal system, in which money bail may not be used to detain a person pretrial.”
Mirroring what I saw during my time in Berrien County, the Task Force also found that many jurisdictions in Michigan “routinely impose requirements such as in-person check-ins, drug testing, electronic monitoring, and participation in programs and counseling, as standard conditions of pretrial release.”
Because of the unfair burden such conditions place on poor people, the Task Force recommended requiring the government “to bear the costs of non-financial conditions of release ordered for indigent defendants and prohibiting detention due to a defendant’s inability to pay for release conditions” such as electronic monitoring and treatment programs.
With the Michigan Legislature currently considering implementing these and other changes urged by the Task Force, reflected in 17 bills that were recently introduced, it is time for all of us to begin applying the political pressure necessary to ensure these bills become laws.
These and other measures are just a start, but they are a good and necessary start. It is what we have to do if we are ever going to begin living up to the ideal of an America that truly provides justice for all.