Detroit court, ACLU settle cash bail suit

By: - July 12, 2022 1:35 pm

William McConico, chief judge of 36th District Court, said settling the class-action lawsuit, filed in 2019 just before he became the chief, presented an opportunity to show that law enforcement and activists can work together to change the criminal legal system. | Ken Coleman

Michigan’s largest district court and social justice advocates announced on Tuesday that they have settled a federal class-action lawsuit over cash bail practices, which activists say routinely and unconstitutionally jail poor and working-class defendants despite evidence of their inability to pay.

Detroit’s 36th District Court, the American Civil Liberties Union (ACLU) and the Bail Project, a nonprofit that pays bail for people in need, called the pact “historic.”

Phil Mayor, senior staff attorney for the ACLU of Michigan during a news conference described the situation at the court as a case of “mass incarceration.” 

“It is a system that has devastated families, separated parents from their children, caused people to lose their jobs and housing, and has wasted millions of dollars in taxpayer money,” said Mayor. 

William McConico, chief judge of 36th District Court, said settling the class-action lawsuit, filed in 2019 just before he ascended to the role, said that law enforcement and activists can work together to change the criminal legal system. McConico, a former state House member, was appointed to the court in 2010 by Democratic former Gov. Jennifer Granholm. 

“Other African-American cities will be able to point to what one of the largest district courts in the country is doing to address this issue,” said McConico, an Black native Detroiter. “That’s why it is so important that this is starting in a major Black city, that it is not being rolled out in a suburban city or a small court.”

Mayor and McConico were joined outside of 36th District Court by Wayne County Sheriff Raphael “Ray” Washington, former U.S. Attorney for Michigan’s Eastern District Saul Green and Democratic former U.S. Attorney General Eric Holder. Green, a President Bill Clinton appointee, will serve as “community partner” for the project. 

“This is how our criminal justice system should work,” said Holder, who served during the Democratic President Barack Obama administration. “It can, and should be, a model for other jurisdictions across the country.”

On any given day in Detroit, which is 79% African American, nearly three-quarters of those jailed are Black, a proportion much higher than their share of the population, the court noted.

The lawsuit, filed on behalf of seven Black plaintiffs in U.S. District Court, described a two-tier legal system in which a person’s freedom depends on their ability to afford bail, a clear violation of due process and equal protection. 

“The named plaintiffs in this case have all been detained since their arrests and remain in jail because they cannot afford the bail set in their cases,” a portion of the complaint reads. 

The lawsuit also claimed violations of the right to counsel because poor people accused of crimes are not provided attorneys to represent them when bail is being set.  

Before filing the lawsuit, the ACLU observed hundreds of court proceedings over several years. It found: 

  • The vast majority of bail arraignments are done via video teleconference between a 36th District courtroom and the Detroit Detention Center (DDC) where arrested people are initially held.
  • The DDC guards instruct those arrested off camera that the only purpose of the arraignment is to plead ‘not guilty,’ they are only to answer ‘yes’ or ‘no’ to the judge’s questions, and they should not attempt to explain their situation to the judge.
  • The typical arraignment lasts just two to four minutes, with the bail-setting phase lasting less than a minute.
  • Magistrates begin by reading the person’s charges and rights in a rapid-fire manner and then ask if the person understands the charges and their rights. If the person does not understand the charges, the magistrate often recites the charges or rights again using the exact same verbiage but speaks a bit slower and in a louder often more exasperated tone.
  • When setting bail, magistrates make no inquiry into the person’s ability to pay.
  • In 85% of the cases, the arrested person was required to pay cash bail in order to be released.
  • After setting bail, magistrates instruct the person to step away from the camera. If the person complains that they cannot afford it or attempts to ask questions, they may be “shushed” by guards.
  • In 95% of the cases, the arrested person does not have an attorney. But, ironically, magistrates do consider ability to pay for people who can afford legal representation, as was the case on March 1, 2019, when Chief Magistrate Bari Blake Wood told an arrested person that having an attorney present was a factor in reducing their bail since the arrestee was “taking this case seriously because he’s retained counsel.”

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Ken Coleman
Ken Coleman

Ken Coleman writes about Southeast Michigan, history and civil rights. He is a former Michigan Chronicle senior editor and served as the American Black Journal segment host on Detroit Public Television. He has written and published four books on Black life in Detroit.