In the February 2022 issue of the Michigan Bar Journal, two authors argued that it is “past time” to turn the page on a “badly broken cash bail system” and abolish it altogether.1 While the article cited three cases where a trial judge set an unreasonably high cash bond, in each instance the defendant appealed and won a reversal. Even without those successful appeals, three mistakes in setting bond do not demonstrate a “broken” cash bail system that needs to be abolished.
Rather than abolish the cash bail system, this article proposes a middle ground that protects the public and ensures that defendants return to court. Judges should avoid setting cash bail that results in lengthy pretrial detentions in non-violent criminal cases, especially if the defendant is indigent. But under current law, most judges do a good job in exercising discretion. That discretion is needed. Personal bond cannot be justified for defendants with flagrant histories of failing to appear in court. Judges need the option to order cash bail for those defendants whose records of failing to appear make them untrustworthy for release on a mere promise to return to court.
As a district judge, I have set and reviewed bonds on many occasions. Usually, a magistrate has set the initial bond at the arraignment, and the district judge reviews it at a later hearing like a pretrial conference. That point deserves emphasis, because it shows that in an ordinary criminal case, there is a speedy bail review process within the district court. I do not disagree that there are occasional abuses and mistakes in the bail-setting business — such as the three examples the bail reform article cited. But as that article also acknowledged, defendants can appeal bond rulings to the district judge, circuit court, or Michigan Court of Appeals and gain a speedy reversal.2 Interlocutory appeals address the occasional mistakes and leave the cash bail option available where appropriate.
IS THE CASH BAIL SYSTEM “BROKEN”?
To try to broaden their attack on the cash bail system, the authors cited the American Civil Liberty Union (ACLU) 2019 federal class action lawsuit challenging the cash bail practices in the 36th District Court in Detroit.3 The article appeared to argue that the mere filing of the lawsuit gives merit to their allegations. Of course, that is not true.
In July 2022, the lawsuit was settled.4 Although the ACLU touted the settlement as a “great victory,” its own press release acknowledged that there would be circumstances that justify setting a cash bail:
The Court has agreed to greatly curtail the use of cash bail so that it will only rarely result in someone’s detention. People will not be detained unless, after reviewing evidence presented, a judge determines that releasing a person would create an unmanageable flight risk or danger to the public.5
To say that cash bail will only be allowed in Detroit courts when the evidence shows the defendant is a flight risk or a danger to the public hardly moves the needle from what was permitted before the lawsuit was filed. Flight risk and danger to the public have been baked into the Michigan court rule on bail for decades. The court rule explicitly allows judges to deny pretrial release if the court determines it would “not reasonably ensure the appearance of the defendant” or “present a danger to the public.”6
The February 2022 article quoted all too sparingly from an excellent report7 by the Michigan Joint Task Force on Jail and Pretrial Incarceration.8 The authors used one quote in particular — that “half of the state’s jail population are pretrial detainees” — to imply that the task force blamed the rising pretrial detainee jail population on the cash bail system.9 But the task force did not say that, nor did it conclude that a 50% pretrial detainee population was too high, nor did it recommend that cash bail be abolished.10
Moreover, the task force report does not support the authors’ conclusion that “pretrial incarceration in Michigan is the rule, rather than the exception.”11 That conclusion would require taking the total number of defendants charged with crimes and comparing how many were released on bond to how many were detained in jail. Neither the authors nor the task force cited such data.
The authors argue that too much pretrial detention is “disastrous for both defendants and society.”12 In reaching that conclusion, they commit multiple analytical errors.
How Many is Too Many?
First, in arguing that 50% of the jail population consisted of pre-trial detainees is disastrous, they fail to suggest standards for what would be an acceptable pretrial component of the jail population. Would a population of just 40% pretrial detainees be acceptable? If not, is 30% OK? The authors gave no hint regarding how many is too many.
How Did They Get There?
The authors fail to recognize that every defendant who sits in jail unable to post their cash bond is there because a judge considered their individual circumstances and decided that they did not qualify for a personal bond. Perhaps the detainee is charged with murder or another violent felony. Maybe the defendant’s criminal history reveals multiple failures to appear in court. Under MCR 6.106, the seriousness of the offense, the defendant’s criminal history, and previous failures to appear in court can weigh against unconditional release.
Does Pretrial Incarceration Induce Guilty Pleas?
The authors commit a third analytic error by concluding that pretrial incarceration “induces guilty pleas” because defendants do so in order to speed their release from jail.13 But if guilty people are pleading guilty, what is the issue?
The authors do not suggest that pretrial detention causes innocent defendants to plead guilty; Michigan court rules require the judge taking the plea to ensure that it is voluntary and there is a factual basis to support it.14 The defendant must admit to committing the crime, and the court rules assure that the vast majority of criminal defendants plead guilty because they are guilty. If pretrial detention merely prompts them to plead guilty earlier than they would otherwise, there appears to be no harm done.
Does Pretrial Detention Increase Crime?
According to the authors, another disaster resulting from cash bail is increasing crime. They cited a study that claimed defendants detained before trial “are 1.3 times more likely to recidivate ... likely because of the economic havoc pretrial incarceration wreaks on them and their families.”15 This argument suffers from multiple fallacies.
First, the authors run afoul of the post hoc ergo propter hoc fallacy — just because one event precedes another, the first did not necessarily cause the second. The authors offer no evidence proving any causal relationship between a defendant’s pretrial detention and a later crime. Even their citation to an American Economic Review article refutes their conclusion.16 That article concluded that “pretrial detention has no net effect on future crime[.]”17
Second, the article fails to distinguish between correlation and causation.18 For example, if a baseball team wins 60% of its night games but only 50% of its day games, that only proves a correlation. Without further analysis, the correlation does not prove that playing at night contributed to a higher winning percentage. Likewise, even assuming defendants detained prior to trial committed 1.3 more crimes than defendants released on bond merely shows correlation, not causation.
The failure to prove causation is not a surprise. If a defendant was detained before trial, was convicted, and commits another crime, how can one separate the downstream effect of pretrial incarceration from other possible causes? For example, some defendants have substance abuse or mental health issues. Those issues do not magically disappear after a conviction. If mental health or an addiction contribute to an ensuing crime, how do we separate the causative effect of that problem from pretrial detention?
Finally, the studies cited by the authors do not support the conclusion they draw. For example, the 2013 study by Lowenkamp, VanNostrand, and Holsinger cited by the authors19 concluded that the “1.3 times more like to commit another crime” statistic indicated an association, not causation. They concluded that “[t] his association could indicate that there are unknown factors that cause both detention and recidivism, but it is an association worthy of further exploration.”20
A TASTE OF REALITY
As I wrote this article, I served as a visiting judge in the 44th District Court. While I respect the ambitions of those trying to reform our criminal justice system, my wish is that those advocates could spend some time in the trenches. Every week, there were instances in which defendants released on a personal bond failed to appear in court. Usually, we give them a second chance to appear voluntarily by issuing a show cause order. Many fail to appear again. Then, we reluctantly issue bench warrants for their arrest and set a small cash or surety bond, usually with a 10% deposit provision that allows them to post bond for their release without paying a bondsman.
Here are a couple of specific examples. Defendant R failed to appear five times for a speeding ticket. Each time, the court reset his appearance date. After the fifth failure to appear, I issued a bench warrant for his arrest and set bond at $2,500 cash or surety with a 10% provision. If Defendant R ever posts a $250 bond (10%) to gain his release, the bond will be applied to his fines and costs, which will likely finish his case. Bench warrants for civil infractions are regrettable, but what is the alternative?
Defendant Y was charged with first-degree home invasion (occupied dwelling with intent to commit an assault). He had lived in a group home for less than a year, so his roots in the community are not strong. He uses alcohol excessively. He failed to appear on previous charges five times. Pretrial services, the court agency that advises judges on bonds, said he is not recommended for release on his own recognizance. Should I override that recommendation and release him on a personal bond?
And finally, just as critics can cite instances where judges have set bond amounts too high, one can easily cite examples of judges who set bond too low. In 2022, the Detroit News reported on Brandon Williams-Griffin, who was arrested by Detroit police for possession of 50 grams of cocaine. Williams-Griffin had 10 drug and domestic violence convictions in two different states, 11 failures to appear in court, and a pending outstanding probation violation. A magistrate released him on a $50,000 personal bond with a tether, meaning he had to put up nothing to gain his release.
Williams-Griffin pleaded guilty to delivery and manufacture of 50- 449 grams of cocaine. He failed to appear for sentencing, cut off his tether, and allegedly killed his father in Georgia three months later.21
Certainly, cash bail poses equal protection issues. A wealthy defendant can post a cash bond more readily than an indigent one. But eliminating cash bail entirely means losing it as an option — even for those who can afford it. Some defendants post cash bail and appear in court when they are supposed to. While that does not prove that the fear of losing money prompted the defendant to show up, it is reasonable to infer that it was one reason why they did.
While acknowledging wealth disparity, the Michigan Joint Task Force on Jail and Pretrial Incarceration did not recommend eliminating cash bail as an option. That omission carries significance because it recommended 18 changes to Michigan laws and procedures. Rather, it recommended the court “conduct an inquiry” into the defendant’s ability to pay before imposing a cash bail.22
Courts need a variety of means to ensure defendants appear in court when they are supposed to. Abolishing cash bail would take away one option for dealing with defendants whose records of non-appearances make them poor candidates for unconditional release. We should retain that option.