Half of those in jail can’t afford bail, but bipartisan bills aim to fix that

By: - November 17, 2021 10:11 am

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Half of Michiganders sitting in jail are there because they cannot afford bail, not because they have been convicted of a crime, according to a new report by the nonpartisan Michigan League for Public Policy (MLPP). 

But a bipartisan package of bail reform bills making their way through the Michigan House of Representatives could fix this, the report says.

The report released earlier this month highlighted that those sitting in jail because they cannot post bail often face a cascading set of problems: loss of work, financial hardship while missing work, and damaged family and social relationships, specifically for those with children who are subsequently sent to Child Protective Services (CPS). 

Gilda Z. Jacobs, president and CEO of the Michigan League for Public Policy, said in a press release announcing the report that lawmakers have had “a number of big wins” for criminal justice reform bills and that “​​cash bail reform should be next” given that it does not help keep people safer. 

“Cash bail is unnecessary and inherently unfair, and does little to nothing to keep our communities safe,” Jacobs said. “It only keeps people with lower incomes behind bars and disproportionately punishes people of color while privileging those with money and resources.”

Currently, if a defendant is categorized as a public safety risk, the person will not be let go on cash bond or personal recognizance. 

Counties widely vary in incarceration rates for people who have not been convicted of crimes. In Genesee County, about 82% of people who are in jail have not yet been given a trial, while 60% of individuals in Macomb County Jail and 65% of those in Kent County Jail have not been given a trial. 

The report showed that more than 60% of those arrested and unable to pay bail also are in the bottom third of income levels. According to a 2015 national study done by the Prison Policy Initiative, a Massachusetts-based nonprofit that researches the harmful effects of mass incarceration, individuals who were not capable of posting bail had a median annual income of about $15,109 before being arrested. 

The MLPP report also noted racial disparities in present cash bail processes. In Michigan, the median annual incomes of Black Michiganders who are unable to post bail are remarkably lower than white and Hispanic Michiganders. 

Across the nation, the Prison Policy Initiative also uncovered that Black and Brown defendants have a 10 to 25% higher chance than White defendants to be detained before their trial or face financial conditions in order to be released. It was also found that the median bond amount for Black defendants was $10,000 more than for defendants who are white. 

Susan J. Demas

Jessica Ayoub, public engagement strategist for the ACLU of Michigan, said that bail reform is a bipartisan issue and that it is important lawmakers act to close the disparities the current cash bail system has caused. 

“Bail reform has champions from across the ideological spectrum and strong support in both parties because it appeals to fundamental values of fairness and justice,” Ayoub said. “In 2021, we should all be able to agree that it’s time to stop incarcerating people because of their economic standing. It’s not doing anyone any good, while devastating individuals and families.” 

The bipartisan package of bills that were introduced in the Michigan House last month take direct aim at reforming the current bail system in the state — and the MLPP report calls on the Legislature to pass them.

House Bill 5436, introduced by state Rep. Andrew Fink (R-Adams Twp.), establishes the standards under which the court can mandate a defendant to either be released on bail or stay in jail. The bill also requires that the court releases the defendant even if they don’t present cash bail so long as they do not present a flight or physical risk. 

House Bill 5437, introduced by state Rep. Tenisha Yancey (D-Harper Woods), further allows the court to analyze a defendant’s capability of presenting cash bail. The bill also grants defendants the ability to receive reminders, service referrals, transportation assistance and check-ins. 

House Bill 5438, introduced by state Rep. Greg VanWoerkom (R-Norton Shores), says that charges must be dropped if a defendant’s case is not tried and ruled on within 18 months of an arrest. House Bill 5439, introduced by state Rep. Stephanie Young (D-Detroit), also allows for a person to be released even if they cannot receive an immediate hearing. 

House Bill 5440, introduced by state Rep. David LaGrand (D-Grand Rapids), establishes risk assessment to discover whether a defendant is a flight or safety risk to themselves or others. House Bill 5441, introduced by state Rep. Steven Johnson (R-Wayland), erases the need for bail in traffic offense or misdemeanor cases. 

House Bill 5442, introduced by state Rep. Luke Meerman (R-Coopersville), also eliminates the need to give up one’s license as a requirement for pretrial release. House Bill 5443, introduced by state Rep. Kathy Crawford (R-Novi), further changes the bond amounts according to “spousal or child support arrearage”. 

LaGrand told the Advance that using a wealth test to grant someone a release “makes no moral or public policy sense at all” and that these bills “drive to the heart of the inequity” in the criminal justice system by dismantling the wealth test.

“This is an example of something that’s been wrong for a long time,” LaGrand said. “And every thinking person who looks at our system realizes that it doesn’t make any more sense to use a wealth test for incarceration than a height test, or, or a hair color test. It just doesn’t make any sense. What we should be looking at is risk factors. And everybody who looks at the problem and thinks about it seriously comes to the same conclusion. This does not provide justice, and it wastes a lot of money.”

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Julia Forrest
Julia Forrest

Julia Forrest is a contributor to the Michigan Advance. She has been covering Michigan and national politics for two years at the Michigan Daily and OpenSecrets. She studies public policy at the University of Michigan.