When it comes to deciding who stays in jail and who goes free while awaiting a criminal trial, the job of a judge is not an easy one. They have the profoundly important task of protecting the constitutional rights of the criminally accused who are presumed innocent and who cannot be casually locked up before trial. It is unconstitutional for a court to detain a person unless there is clear and convincing evidence that a person presents a specified danger to a member of the public or a concrete flight risk. Inevitably, when a judge is striking this balance correctly and following the Constitution and the law, some of those decisions will draw criticism and generate controversy.
But isolated incidents should not be used to evaluate the system as a whole, because they offer an unreliable, short-sighted, and dangerous foundation upon which to formulate public policy. When it comes to the issue of our badly broken cash bail system, we need major reform based on facts and evidence, not the fear-mongering or grandstanding we are unfortunately seeing as the response of some law enforcement officials to the release of some people because of the threat the pandemic poses to those who are locked up.
When "tough-on-crime” hardliners hold press conferences or issue statements to generate a media storm around a single controversial case, they cast an unfair shadow over much-needed reform. Never seen are the hundreds of injustices occurring every day in courts across Michigan, where people are routinely sent to jail only because they lack the money to buy their freedom.
That is wrong. It is unconstitutional. And it must end.
To accomplish that goal, we can’t succumb to knee-jerk, inflammatory attacks that befog facts and attempt to sway public opinion with emotion-packed rhetoric. Such attacks cynically exploit the personal devastation of crime victims and their loved ones for political gain.
We must, instead, focus on the issue at hand — because bail reform is critical to the lives and wellbeing of thousands. Even a few days in jail can cause people charged with crimes immeasurable harm — lost jobs, homelessness, fractured families, suicides and more. People who are locked up while they await trial are also routinely coerced into accepting plea bargains in order to get out, whether they are guilty or not.
Pretrial incarceration is also counterproductive in that it actually jeopardizes public safety. Studies have shown that, controlling for whether the individual was convicted or not, people who are victims of pretrial incarceration commit new crimes at a higher rate two years later because of the personal and economic devastation that happened as a result of being jailed pretrial.
Jailing people while they await their day in court is especially devastating to Black people. According to the Michigan Joint Task Force on Jail and Pretrial Incarceration report, Black men make up 29% of jail admissions even though they are only 6% of Michigan’s population. And it is well-established that Black and brown people have unaffordable bail imposed more often than others and thus remain incarcerated for longer. Moreover, the costs of their incarceration (or of posting bail, when that is possible) are often born by the entire community. The sudden loss of a wage earner can devastate the livelihood of any family, and especially one with limited financial resources.
True justice demands that, unless there is compelling evidence that someone who has not yet been convicted of a crime is a flight risk or a concrete danger to the public, that the person be released from jail to fight their case without having to pay their way out. Judges must be allowed to do their jobs and make truly individualized assessments when deciding whether to release someone while they await trial, taking into account all individual circumstances — not simply the crime they have been accused of.
In terms of keeping people safe, the use of cash bail makes zero sense. Either a person is deemed a threat to others, or they are not. Forcing them to buy their freedom does nothing to protect anyone. The opposite is also true: In places where reforms have been enacted, the overwhelming majority of people released without having to pay bail remain out of trouble and show up for court.
In Washington, D.C., for instance, 94% of all the people arrested in 2017 were released without having to pay anything. Of that number, 88% made all of their court appearances, and 86% were not arrested for any other crime while awaiting trial. Of the small number of people arrested after being released, fewer than 2% were rearrested for a violent crime.
There are proven ways to make Michigan both safer and more just.
Now is the time to adopt them. Last year, state lawmakers made tremendous strides to reform our criminal legal system guided by the recommendations and data of the Michigan Joint Task Force on Jail and Pretrial Incarceration. But there is more that must be done. This year, we must work together to pass the Task Force recommendations aimed squarely at our broken bail system to:
- Establish consistent statewide guidelines when determining the conditions of releasing a person charged with a crime while they wait for their case to go to court.
- Promote a standard to keep people in their communities by ensuring that courts actually do their duty by presumptively releasing people charged with crimes on personal recognizance without conditions rather than routinely setting cash bail.
- Prioritize support over punishment by offering proven alternatives to incarceration, such as rehabilitative programs for people struggling with mental health issues or substance use disorder.
- End systemic racism in Michigan's legal system by exposing and eliminating polices, practices, and barriers in the pretrial system that disproportionately impact people of color.
- Require courts to regularly share data on their pretrial release decisions as a tool for the public to evaluate the effectiveness of reform policies.
This work is urgent, as thousands of Michiganders who pose no risk to public safety are trapped in jail every day because they cannot pay bail. To focus attention on individual incidents obscures the larger picture of people and their families being needlessly harmed again and again and again, day in and day out, all across the state.
That is where our focus needs to be kept, not on fear, aberrations, and bluster.
To read the full article on the Detroit Free Press, click here.