Detroit court’s bail system criminalizes being black and broke, suit claims

Kushawn Moore, Sr.’s 17-year-old son has no criminal history and remains jailed on an armed robbery charge.The family cannot afford the $50,000 bail. Moore is consoled by H. James Telman (right), pastor and mentor to Djibril Niyomugabo who committed suicide in Kent County jail in 2016 while he was detained on $200 bail for stealing a bottle of wine from a car. (Bridge photo by Chastity Pratt)

Kushawn Moore, Jr., 17, was never in trouble with the law until he was arrested last week and charged with armed robbery.

A lawsuit filed on his behalf alleges the high school junior from Detroit was taken to jail, handcuffed to a bench and not told what would happen next. The following day, he was arraigned from jail by a video conference with 36th District Court without a lawyer.

The magistrate asked him one question - his name - before setting bail at $50,000 with no option of paying 10 percent of the costs, as is common, a lawsuit alleges.

Moore’s detention came two weeks after a suspected drug dealer didn’t show up for his court hearings after being set free on a $200 bail for allegedly being caught with enough cocaine and heroin to face life in prison.

Bail horror stories like that are common in Michigan’s busiest court, 36th District, and demonstrate the need to overhaul its bail process, Dan Korobkin, deputy director for the ACLU of Michigan, said during a press conference Monday.

“Bail was originally intended to ensure a person returns to court to face charges,” Korobkin said. “Instead, the money bail system has morphed into a mass incarceration of the poor.”

The federal class action lawsuit filed on behalf of Moore and six others in U.S. District Court on Sunday claims the cash bail system discriminates against poor people and violates the constitutional rights of people who have not been convicted by not allowing them timely access to attorneys.

The case was filed against Nancy Blount, chief judge of Michigan’s 36th District Court, five magistrates and Wayne County Sheriff Benny Napoleon.

Blount issued a statement on Monday saying, “the Court does not comment on pending litigation when the Court is a named party.”

Napoleon said sheriffs have nothing to do with setting bail, so he doesn’t understand why he was named in the lawsuit.

He said he supports examining alternatives to incarceration. On any given day, the county has about 700 defendants who are at home on electronic monitoring pending trial as an alternative to jail, he said.

“I think we over-incarcerate people,” Napoleon said. “We need to look at when we put people in jail, for how long and what for. We should look at (pretrial) incarceration for those we are afraid of not those we’re just mad at.”

Bail supporters traditionally have argued that the system prevents the accused from skipping town before court, but also gives them a shot at freedom. Some experts have argued that eliminating cash bail actually may exacerbate inequities in the criminal justice system and fill up jails before trial, rather than empty them.

Maryland, for instance, reduced its reliance on bail in 2017, but a report last year found that judges there have since opted to put more defendants in jail while they await trial. That's may be because other factors, such as employment, criminal history and drug use, are given more weight in deciding to incarcerate defendants than the ability to make bail.

The ACLU has filed similar cases pending in Texas, Georgia and South Carolina, said Twyla Carter, senior staff attorney for the ACLU’s criminal law reform project. The case against 36th District Court is the first in Michigan, but more could be filed across the state, she said.

Aaron Lewis, an attorney with Covington and Burling law firm and co-lead counsel on an ACLU lawsuit, said Detroit’s 36th District Court leads to high numbers of poor, African Americans being jailed because they cannot pay bails as low as $200. (Bridge photo by Chastity Pratt)

Carter said she and other ACLU staff watched arraignments at 36th District court last week and were aghast at the speed at which defendants - mostly poor African Americans - were jailed on what she described as arbitrary bail amounts for low level charges such as traffic violations.

All of the defendants in the ACLU case are African American.

“It’s devastating the African American community,” Carter said of the cash bail system. “Granted, the city (of Detroit) is majority African American, but nationwide you see this racist disproportionality.”

Reforms elsewhere

The lawsuit comes amid a national effort to reform the bail system, which has been controversial since the United States was a British colony.

Last month, Rep. David LaGrand, D-Grand Rapids, sponsored a bill to allow anyone arrested in Michigan to be released without bail unless a pretrial risk assessment determines a bail should be set.

The ACLU does not support the bill, saying it doesn’t go far enough.

In recent years, California, Colorado, Kentucky, New Jersey and Georgia curtailed or eliminated cash bail. Washington, D.C. got rid of bail in 1992 for all defendants except those deemed most dangerous and 2015 data showed 90 percent returned to court and were not arrested while awaiting trial.  

Five other courts in Michigan are working to set more affordable bail amounts as part of an effort that Michigan Chief Justice Bridget McCormack announced in February. The 36th District Court, which handles 500,000 cases per year, is not among them.

Experts caution that eliminating bail is not a panacea for criminal justice inequities. In Maryland, "the burden still disproportionately affects the black community, and more and more people are being held without bond — without a fair hearing,” Scott Roberts, an author of a report about Maryland's reform, last year told the Washington Post

The case against 36th District Court is part of the ACLU’s Smart Justice Campaign to cut Michigan’s jail and prison population in half.

One of the defendants in the ACLU case, Davontae Ross, 24, was arrested April 11 on a five-year-old ticket for trespassing in a park after dark. He expects to remain in jail until his next court date because he can’t pay the $200 bond, according to the lawsuit.

Taxpayers are paying far more than that.

One day of jail alone costs about $75 per day across the United States or more than $10 billion a year,a  2017 Bridge analysis found. In Wayne County, average daily costs can climb closer to $150 per day.

As much as 60 percent of the jail population in Wayne County is comprised of defendants who can’t make bail and are awaiting trial, according to the Michigan Sheriffs’ Association.

Dan Korobkin, deputy legal director for the ACLU of Michigan explains how Washington D.C. eliminated bail in the 1990s. Most people who get a bail set in 36th District court are not high flight risks, “they’re high needs,” he said. (Bridge photo by Chastity Pratt)

The ACLU notes that Michigan’s courts already require an attorney to be appointed before arraignment, an inquiry to find out if a person has the ability to pay bond and allows pretrial release without bail except when a person is considered a danger to the community or flight risk.

But the ACLU claims 36th District Court often flouts those mandates with shabby arraignments that last two to four minutes.

“We can get rid of cash bail, but that’s not the whole answer to the problem,” Korobkin said.

Korobkin said 36th District Court needs to make some specific changes:

  • Ensure all defendants will be arraigned within 48 hours
  • Assign a lawyer who can advise defendants before the hearing
  • Hold hearings to determine if defendants are a flight risk and their ability to pay bail

Kushawn Moore, Sr., the father of the teen who is in jail charged with armed robbery,  wept at the press conference on Monday. He was consoled by James Telman, pastor and mentor to Djibril Niyomugabo who committed suicide in Kent County jail in 2016 while he was detained on $200 bail for stealing a bottle of wine from a car.

Moore’s wife, Deleda Moore, said their son is sitting in jail, scared. He’s missing school, missing work at his McDonald’s job and missing prenatal doctor’s appointments with his pregnant girlfriend who is due in August.

“He’s never been in trouble a day in his life,” she said. “He’s crying, he’s depressed. I explained (to him) that he can’t come home because we can’t afford to pay.”

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Kevin Grand
Tue, 04/16/2019 - 7:26am

This is easily fixed.

I would have no issue with these defendants being place in the direct custody of an ACLU representative until their trial.

If anything happens with the defendant before then, their ACLU representative would also be charged for any new crime as well...and face the same punishment.

Does the ACLU's courage match their convictions?

Tue, 04/16/2019 - 9:45am

There's goes Kevin, being a soulless loser again. God forbid you stand up for the Constitutional Rights you claim to so ardently defend

Kevin Grand
Tue, 04/16/2019 - 6:20pm

Your reading comprehension never ceases to amaze me, Bones.

Exactly where did I make THAT claim?

Tue, 04/16/2019 - 8:09pm

Could not agree more Bones.

Wed, 04/17/2019 - 7:36am

Perfect, I'd be more than happy to see the Detroit Prosecutor set you and Bones up each with your very own defendant.

Brother Agnos
Wed, 04/17/2019 - 12:29pm

We are all responsible for our brothers and sisters....
May god bless you Matt!

Wed, 04/17/2019 - 3:57pm

Matt you don't even make sense.

Wed, 04/17/2019 - 1:12am

I would like to hear Bones creative approach to the problem, where Kevin includes the complainant [the ACLU] in the solution, a novel approach, I expect Bones could be similarly novel and we could compare or even merge the ideas.
Bones, give us some food for thought, how should a person's appearance at a court hearing be assure? Kevin's ideas offers a surrogate, a party with a personal commitment to the individual charged, to keep them free to roam while ensuring they will appear, as an alternative to the bail.

Wed, 04/17/2019 - 7:37am

Bones doesn't do solutions only reactions.

Wed, 04/17/2019 - 3:55pm

Some times people that hesitate to be a contributor to the solutions is because of a hesitation in confidence.
We need to help him realize that we do want to hear his ideas, that we will surely read his ideas and provide feedback, that we appreciate his intellectual capacities, and that we want to hear his perspective.
I regularly read and Bones' comments to get such a different perspective and would like to hear his perspective because it adds to the diversity of perspectives we can gain from.

Robert Buck
Tue, 04/16/2019 - 9:45am

Can’t pay the toll don’t do the crime what a stupid person does they must paying the tolls

middle of the mit
Tue, 04/16/2019 - 11:51pm

As is Illegal Employers! Get it?

Now ya do! Let us put the same standards on them? Shall we?

Want to play games? YOu will lose!

middle of the mit
Wed, 04/17/2019 - 12:31am

"Increased investment is essential if Michigan is going to move toward and reach the governor’s goals. It’s time for Michigan to reverse the recent trend of disinvestment in education at all levels to secure a better future for our students and our state. "

This is almost as ludicrous as the exchange last week between Rep. Waters and bank CEO's.

Does the House of Representatives?

Otherwise Jim Jordan has nothing on Elijah Cummings. want to talk about the disincentive to education and our students?

Otay butwheat!!!

What has the MI legislature done over the last 8 YEARS THAT REPUBLICANS HAVE BEEN IN CONtroll?


Guess what?

What's your plan?

We as citizens lose while CEO'S and conglomerates win?


That is what a Christian nation is all about!

Don't like religion? Don't fight with it! God rewards humans with mammon! At least that is what Publicans think!

You will lose.

At least you will if you take me on.

Tue, 04/16/2019 - 8:59am

A significant number of people in jail pretrial are there for TRAFFIC offenses. And you clearly didn’t read where the Sheriff thinks Detroit over-incarcerates people.

Sun, 04/21/2019 - 7:39am

Yes but how times have they not fixed there old tickets

David Andrews
Tue, 04/16/2019 - 11:16am

Amendments 4 through 8 all deal with the criminal prosecution system, and all are under attack by the government today. The excessive bail problem should not be solved by placing arbitrary limits on bail, or requiring additional hearings or other measures. The balance to excessive bail is the companion right to a speedy trial. There is nothing in the 6th amendment that says "consistent with the work load of the court, the accused shall enjoy", it says "in ALL Criminal prosecutions, the accused shall enjoy", so, in any case where the accused is subjected to bail, particularly where he is unable to meet bail, his trial should go to the top of the docket. We must always remember that person sitting in jail unable to post bail is innocent under the law - his standing under the law is on par with the Judge, the prosecutor, the sheriff.

Should a Judge be allowed to go home at night while an innocent man sits in jail?

Laurence Rosen
Tue, 04/16/2019 - 11:19am

Today, the courts allow "pretrial release without bail except when a person is considered a danger to the community or flight risk." Is this a formal program that reviews the status of each person arrested and the crime for which they were arrested or is this an informal event that relies on the whims of judges and attorneys?
When I worked for the New York City criminal courts in the 1970s, all arrestees were arraigned within 24 hours. Each person arrested was interviewed by trained court personnel prior to arraignment to determine his or her ties to the community such as school enrollment, jobs, residence, and family ties. Phone calls to verify the information provided were recorded and scored, and a recommendation for release or bail was made to the judge and the attorney for use at the arraignment. This "Release on Recognizance" program was established and originally paid for by the Vera Foundation for Justice and was later adopted and paid for by the court system. This resulted in non-bail release for many people arrested for relatively minor crimes, thus reducing disruption to school, work, or other obligations. Anyone released through this program was clearly warned that not appearing at a hearing or trial would result in an automatic bench warrant for their arrest. This effectively reduced detentions and the associated costs of detaining people arrested for minor crimes and, to my knowledge, did not result in a significant increase in no-shows for trial. A formal program like this could go far in addressing this issue.

Tue, 04/16/2019 - 12:37pm

Here's an idea. Stay out of jail!! So now this is deemed racist???

Tue, 04/16/2019 - 1:41pm

For heaven's sakes, not everyone accused of a crime is guilty. There is no way to insure you will never be sent to jail, no matter how blameless your life. That is why this country professes to believe that everyone is innocent until proven guilty. And if you are not white-skinned, your chances of being jailed but innocent are far, far higher than if you are white-skinned!

Tue, 04/16/2019 - 8:12pm

AMEN Lynne.

Graham Jaehnig
Tue, 04/16/2019 - 3:23pm

The 97th District Court is no different than the 36th District. People who are able to post bail do not have it returned to them in the 97th District, as it is kept by the court system and applied to "court costs and legal fees."

Wed, 04/17/2019 - 4:24pm

Many of our current systems for laws are so outdated and broken. I realize that it would be an overwhelming task for a small segment of the courts to update and create appropriate laws. It needs to be done, and we are a society need to find ways to make it happen. Passing the buck is not acceptable nor humane. Look outside the box for solutions, quit blaming each other, work together, without bias. Come on people we can do this with community effort, throughout the State of Michigan!

Thu, 04/18/2019 - 9:16am

What principles. themes, or guiding considerations would you recommend to any group undertaking the task of review/revision of current laws and the courts system?

Thu, 04/18/2019 - 6:59am

LOL. Yeah. Let everyone out of jail with no bail. That’s crazy. Let judges decide. That’s what we elected them to do. When they skip and become fugitives and are rearrested five years later, you gonna release them with no bail again? Constitution says bail shall not be excessive. It don’t say bail shall be free. You can cut a tether off with a steak knife. Who’s gonna go out and get all the people who skip court? At least bondsmen do that.