In Michigan, as in much of the United States, using cash bail to incarcerate people prior to their trials is commonplace. Yet Michigan law, as well as the state constitution, requires that cash bail be used only infrequently and in response to a particular defendant presenting a realistic flight risk or threat to public safety. Unfortunately, inquiries into these threats or flight risks are often not conducted — and with devastating results for all involved.

This article examines this persistent problem, explores the legal framework that is supposed to govern pretrial release, describes efforts being undertaken to combat the misuse of cash bail, and suggests opportunities for further action and reform.

CASH BAIL: DEFINING THE PROBLEM

Criminal defendants are presumed innocent until proven otherwise. When a court imposes cash bail, it subjects a person who is presumed innocent to the prospect of lengthy pretrial detention with all the attendant personal impacts and harm to their ability to defend their case. Even defendants who can afford bail often have to borrow from family or friends or use scarce financial resources that otherwise would go toward rent, food, or child care. Troublingly, pretrial incarceration in Michigan is the rule rather than the exception. A recent bipartisan task force found that half of the state’s jail population are pretrial detainees.¹

The result is disastrous both for defendants and society. The economic impact on someone detained pretrial is obvious: “It often means loss of a job; it disrupts family life; and it enforces idleness.”² These impacts extend to the defendant’s family members, who often struggle to scrape together resources to pay bond or who may find their child care, housing, and employment arrangements irrevocably frayed as the result of their loved one’s incarceration.³

It is beyond dispute that a defendant’s pretrial incarceration impacts legal outcomes. Academic studies confirm what common sense suggests — controlling for other factors, pretrial incarceration induces guilty pleas, causing defendants to plead in order to speed their release from jail.⁴ The same studies show that pretrial detention leads to higher conviction rates and lengthier sentences. As the U.S. Supreme Court has explained, “[I]f a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare [their] defense.”⁵

And all this harm is inflicted for naught. Cash bail does not reduce flight risks; there is, quite simply, “no evidence that money bail increases the probability of appearance” as compared to personal bonds and other nonfinancial conditions of release.⁶ As for protecting the public from harm, cash bail has the effect of increasing crime. Defendants who were detained before trial are 1.3 times more likely to recidivate, even years later and regardless of whether they were ultimately convicted, likely because of the economic havoc pretrial incarceration wreaks on them and their families.⁷

Worse yet, but predictably, these burdens fall disproportionately on communities of color, exacerbating the systemic racism that already plagues our criminal legal system. In the cross-section of counties studied by Michigan’s recent bipartisan task force, Black defendants constituted 29% of jail admissions in the state although only 6% of the total population of the same counties is Black.⁸ In turn, Black and Latinx defendants are more likely than whites to be held in continued detention because they cannot afford bail.⁹

MICHIGAN LAW GOVERNING CASH BAIL

Under Michigan law, cash bail is — or is supposed to be — disfavored. As a matter of law, cash bail may not be imposed unless a court first makes findings, supported by individualized record evidence, that release under the defendant’s own recognizance with a personal bond or pursuant to non-financial release conditions would be insufficient to protect against an otherwise unmanageable flight risk or specific danger to the public. When a court imposes cash bail without meaningfully considering non-cash alternatives and without engaging in an individualized analysis of whether cash bail is truly necessary to address a proven flight risk or danger to others, the court abuses its discretion under Michigan law.

Begin with the Michigan Constitution: “All persons shall, before conviction, be bailable by sufficient sureties” except in four specifically delineated circumstances involving particularly serious charges or criminal history.¹⁰ And “[e]xcessive bail shall not be imposed.”¹¹

Courts, in turn, have held that “[m]oney bail is excessive if it is in an amount greater than reasonably necessary to adequately assure that the accused will appear when his presence is required.”¹² In so doing, they have emphasized that “pretrial release of an accused is a matter of constitutional right and the State’s favored policy.”¹³

The Michigan Supreme Court has promulgated rules designed to enforce these principles. Under these rules, there is a double presumption that a pretrial arrestee will be released without any cash bail requirement. First, Michigan Court Rules provide that “the court must order the pretrial release of the defendant on personal recognizance, or on an unsecured appearance bond . . . unless the court determines that such release will not reasonably ensure the appearance of the defendant as required, or that such release will present a danger to the public.”¹⁴ (Emphasis added.)

Second, even if the court does determine that there is evidence of a possible flight risk or danger to the public, the presumption of release without cash bail remains. Before imposing cash bail, a court must consider releasing a defendant under non-financial release conditions including, but not limited to, 14 conditions (such as no-contact orders, curfews, drug testing, and the like) specifically enumerated by court rule.¹⁵ It is only “[i]f the court determines . . . that the defendant’s appearance or the protection of the public cannot otherwise be assured [that] money bail, with or without conditions . . . may be required.”¹⁶ Furthermore, the court’s reasons for requiring any amount of cash bail must be stated on the record.¹⁷ The Michigan Supreme Court has been “emphatic” that this “rule is to be complied with in spirit, as well as to the letter.”¹⁸

Even if a court concludes that some amount of cash bail is justified by the record evidence in a particular case, determining the proper amount of bail necessarily requires an inquiry into a defendant’s financial situation.¹⁹ Michigan Court Rules specifically require the court to consider a “defendant’s employment status and history and financial history insofar as these factors relate to the ability to post money bail.”²⁰ They also specifically prohibit “pretrial detention . . . on the basis of . . . economic status.”²¹ That prohibition is arguably violated when cash bail is set at an amount that a defendant cannot afford.

FEDERAL CONSTITUTIONAL REQUIREMENTS

Bail determinations are also constrained by two separate principles of federal constitutional law. The equal protection clause of the 14th Amendment prohibits incarceration of indigent defendants because they have a liberty interest in pretrial release while otherwise similar defendants who are wealthier would be permitted to pay cash to remain free. The due process clause prohibits depriving anyone of their liberty prior to a criminal conviction unless individualized findings have been made, with rigorous procedural protections, establishing that the individual poses an unmanageable flight risk or an identifiable danger to the public prior to trial. When a court fails to inquire into and make findings regarding these matters, it violates a defendant’s federal constitutional rights.

The equal protection analysis flows from the U.S. Supreme Court decision in Bearden v. Georgia,²² recognizing that it is “contrary to the fundamental fairness required by the Fourteenth Amendment” to “deprive [an individual] of his conditional freedom simply because, through no fault of his own, he cannot pay.”²³ In recent years, federal courts have held that setting cash bail without accounting for a defendant’s ability to pay violates the right to equal protection under the law because doing so causes low-income defendants who pose little risk of flight or danger to the public to be deprived of their liberty while similarly situated defendants who are wealthier are set free.²⁴

Separately, “the ‘general rule’ of substantive due process [is] that the government may not detain a person prior to a judgment of guilt in a criminal trial.”²⁵ To justify a pretrial exception to that rule, the government interest must be compelling and any infringement on liberty narrowly tailored to serve that interest.²⁶ In the context of federal pretrial detention, the U.S. Supreme Court upheld the constitutionality of the federal Bail Reform Act because it limits pretrial detention to “specific categor[ies] of extremely serious offenses” and, in such cases, requires evidentiary proof by clear and convincing evidence “that an arrestee presents an identified and articulable threat to an individual or the community” and that “no conditions of release can reasonably assure the safety of the community or any person.”²⁷ Defendants’ due process rights are therefore implicated when courts set unaffordable cash bail resulting in pretrial detention while failing to meet those rigorous standards.

FIGHTING CASH BAIL ABUSES IN THE COURTS

The American Civil Liberties Union of Michigan has been fighting back against the abuses of cash bail. In 2019, the ACLU filed a federal class-action lawsuit in Detroit arguing that the widespread use of cash bail at the 36th District Court was unconstitutional.²⁸ The case was filed in Detroit, where a single lawsuit could impact the greatest number of defendants due to sheer quantity, but such a suit could have been filed in almost any jurisdiction in Michigan.

Indeed, the ACLU has also filed bail appeals on behalf of individuals throughout the state where courts have continued to flout the law. For example, in Oakland County, the circuit court imposed unaffordable bail on a defendant charged with felony firearm and intent to deliver fentanyl who was late to court due to bus delays. The Court of Appeals held that the circuit court had abused its discretion.²⁹ A few weeks later, the ACLU appealed another Oakland County decision imposing unaffordable bail on a defendant charged with felony firearm (fourth habitual.) The circuit judge had reasoned that the lengthy prison sentence the defendant potentially faced rendered him a flight risk. The Michigan Supreme Court found the cash bail to be an abuse of discretion with Justice Megan Cavanagh explaining that a court cannot “conclude that defendant [i]s a flight risk . . .. [He has] no history of absconding on bond or failing to appear for court, and based only on defendant’s presumed incentive to avoid punishment — an incentive present in virtually every case.”³⁰

More recently, a judge in Kent County was raising bond for defendants shortly after they rejected plea bargains — essentially punishing them for exercising their constitutional right to proceed to trial. The ACLU appealed two such cases and in both, the circuit judge was reversed. The Court of Appeals emphasized the law that “[m]oney bail may only be imposed where the ‘defendant’s appearance or the protection of the public cannot be otherwise assured.’”³¹ The defendant in question had been released for some time prior to having his bond increased and the court emphasized that a successful record of pretrial release “demonstrates that the modification made by the trial court was not required to ensure defendant’s appearance at court proceedings or to protect to public.”³²

These cases represent only a small fraction of the number of cases statewide involving the abuse of cash bail, but they show that when an erroneous bail determination is appealed, our appellate courts stand ready and willing to enforce the law.

FIXING THE SYSTEM

It is past time for Michigan to turn the page on a badly broken cash bail system and enter a new chapter in which pretrial detention is truly the exception and not the norm, governed by principles of fairness and public safety rather than being used to cause wealth-based detention. Effective reform will require courts, attorneys, and policymakers to work together.

First, judges and magistrates must take seriously their obligation to comply with the court rules on pretrial release. Chief judges and court administrators around the state need to dedicate the resources, time, staffing, and training to ensure that each defendant is given individualized consideration so most defendants are released on non-monetary conditions that comply with the law and protect public safety.

At the same time, appointed counsel must be prepared to challenge bail determinations gone awry. Under standards adopted by the Michigan Indigent Defense Commission and approved for implementation statewide, all courts in Michigan are required to provide defendants with counsel at arraignment.³³ And under Michigan Court Rules, after a bail determination is made, a defendant has the right to pursue an immediate appeal of the decision to the next highest court.³⁴ The Court of Appeals entertains such appeals on an expedited basis and has repeatedly ruled in defendants’ favor as described above. To satisfy the duty of zealous advocacy, counsel should pursue such appeals whenever doing so is in the client’s best interest.³⁵

At the policymaking level, we must move toward a system in which cash bail is abolished altogether. Last year, Illinois enacted legislation to do away with cash bail entirely.³⁶ Other states have, also through legislation, strictly curtailed its use.³⁷ In Michigan, a bipartisan group of legislators recently introduced a package of bills that will, among other things, reinforce a presumption of release on personal recognizance, require the release of most people charged with misdemeanors, mandate ability-to-pay determinations if cash bond is used, and require courts to provide data on their use of cash bail.³⁸ The Michigan Joint Task Force on Jail and Pretrial Incarceration has likewise identified pretrial release as a legislative priority.³⁹

CONCLUSION

For too long, our pretrial system in Michigan has been working on autopilot, flouting both state law and constitutional protections designed to ensure that pretrial incarceration is a rare and carefully justified exception to the rule. The time has come to enforce the law as it exists and reform the law to better protect the presumptive right of the criminally accused not to be detained while awaiting trial.

The views expressed in “In Perspective,” as well as other expressions of opinions published in the Bar Journal from time to time, do not necessarily state or reflect the official position of the State Bar of Michigan, nor does their publication constitute an endorsement of the views expressed. They are the opinions of the authors and are intended not to end discussion, but to stimulate thought about significant issues affecting the legal profession, the making of laws, and the adjudication of disputes.