The cash-bond system has served the country since 1835. It’s finally time for a change.

Robert Ficano

Robert Ficano is a criminal justice professor at Wayne County Community College, and formerly served as Wayne County Sheriff and county executive.

The old adage is build a jail and the criminal justice system will fill it in less than a year. But who are those individuals filling the cells? It is mainly indigent defendants. The criminal justice system includes two tiers: One for those with money, who can afford to post a cash bond, and the other for those without.

Historically, jails are meant to house people who have committed low-level felonies, misdemeanors and for pretrial detainees. Most felonies to be served over one year are housed in the state corrections system.

Today, locations such as the Wayne County Jail house almost exclusively pretrial detainees. These detainees are primarily indigent, but still presumed innocent by our Constitution. Yet because of the cash bond mandate, they cannot raise the money and must stay behind bars until their trial. Those with money are quickly able to go home to their families.

Complicating the issue locally was the action by Gov. John Engler in the 1990’s, closing most of the state’s mental health facilities (including the Lafayette Clinic in Detroit). As a direct result, the Wayne County Jail has become the largest mental health facility in the state of Michigan.

The cash bond system has been the primary measure used by the courts since 1835, and is designed to assure that defendants return to court. There are nearly 500,000 people in the US awaiting trial, most of whom cannot afford a cash bond. A judge presiding over a cash bond hearing must decide whether the defendant is a flight risk and/or a risk to the community.

No doubt there are some violent and dangerous people who need to be in pretrial detention awaiting their trial. But The problem is the cash bond system is stacked against the indigent. How fair is it that a major drug dealer can make a cash bond for $100,000 and be out in the community before his/her trial date and yet a low offense detainee cannot make a $1,000 bond and must take up jail space until his/her trial date?

Many states and jurisdictions are starting to realize it is unfair, if not unconstitutional, for such a discrepancy to exist between those with money and without. The current system has indirectly created a debtors’ prison.

To correct this, some communities, courts and states have adopted data-driven formulas which are used to determine bond release eligibility. There are generally ten factors a judge will consider for a detainee release, ranging from whether the offense was violent to the defendant’s previous record and incarceration. This approach is being instituted in over 30 jurisdictions, including Chicago, Charlotte, Pittsburgh, Milwaukee, New Jersey and Houston.

Funding to study this approach is available from the Laura and John Arnold Foundation. It would behoove the criminal justice stakeholders not only in Wayne County but the state of Michigan to contact the foundation and investigate whether this data-driven approach could be successful in our communities.

A second option could be a constitutional challenge to cash bonds. Nine states are currently in litigation regarding their cash bond proceedings.

A Harvard study has implied that indigent defendants, are more likely plead guilty, lose their jobs, detach from their families and commit crimes in the future.

In Wayne County, the taxpayers pay $80 per day to house pretrial detainees who cannot afford low cash bonds.

No doubt jail space is critical in Wayne County. But as the county determines what is necessary for a new jail or criminal justice campus, the stakeholders should determine whether the jail bond bail system should be revised. It could have a profound effect on the size of the new jail at either location.

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Kevin Grand
Fri, 06/09/2017 - 2:24pm

Is there going to come a point where we'll see the focus shifting to not breaking the law in the first place, instead of how much money is in the bank account of those who do?

It doesn't take someone with a doctorate to know that you shouldn't do things like drive without a license or insurance, expose yourself in public, take something that doesn't belong to you or worse.

THAT is where the attention should be regarding this issue.

John Q. Public
Sat, 06/10/2017 - 1:49pm

I'd agree with you , Kevin, but for that nagging inconvenient fact that the police sometimes arrest people who didn't break the law; i.e., they were wrongly accused.

Example: two guys are each arrested for the first time for the same misdemeanor offense. One is wealthy and posts bail, the other is poor and has the misfortune of being held until trial three days later because a judge intent on puffing his law-and-order bona fides won't release him on recognizance.

At their trials, the rich man is subsequently found guilty and is sentenced to probation. He is guilty but spends only a couple of post-arrest hours in jail before posting bail. The poor man is found not guilty and released, but only after having spent three days in jail for nothing.

To me, however uncommon it may be, that's a problem worthy of attention.

Kevin Grand
Sun, 06/11/2017 - 7:26am

That would be indicative of a problem far greater than just posting bond.

I'll concede that our legal system isn't perfect.

When people like Rick Snyder or Anthony Marrocco are allowed to run around free as a bird (having attorneys general belonging to the same party OBVIOUSLY had nothing to do with this), while the people Mr. Ficano cited above have to explain themselves before a judge, obviously there is a problem.

Remember a motorist by the name of Steven Utash? When he was savagely beaten by a pack of animals and an imbecile by the name of Judge Callahan gives the defendants probation, obviously there is a problem.

I hate to admit this, but I can very easily go on and on with even more examples. I just don't want to depress myself this early in the morning.

So what would you suggest as a solution to the larger issue?

Lola Johnson
Sun, 06/11/2017 - 9:05am

It doesn't take someone with a doctorate to figure out that you have never been in jail, nor loved anyone who was. Did you miss the part about mental health? Someone who is mentally ill may have a meltdown and act out. He will be arrested and his bail will be high to "protect" the community. He will sit in jail for months until he can be sent to Michigan's ONE forensic psych unit for evaluation. He will then sit in jail until their report returns. Boy, this is good for one's mental health. During all this time, he receives NO treatment for his illness. Michiganians ought to be ashamed. I hope such a thing never happens to you or anyone you care about, since you are clearly not equipped to deal with reality.

Kevin Grand
Sun, 06/11/2017 - 8:00pm

And this has what to do with the price of tea in China, Ms. Johnson?

Attempting to shame others because the family and/or friends of the example you're citing won't do anything except try and shift that cost/responsibility?

Has the thought ever occurred to you that those same others I've mentioned have responsibilities of their own to take care of (and bills to pay), without people trying to use the power of government to add to it?

Mau VanDuren
Sun, 06/11/2017 - 8:24am

A friend was arrested at a random traffic stop when officers found a Virginia warrant out on him. The warrant was issued for failing to pay a monthly restitution (which turned out to be a miss-communication between parties). After two weeks in Maryland custody he was extradited to Virginia. No one was informed of the initial arrest and the extradition leaving family, friends, and clients (he is an independent garden contractor) in the dark over his disappearance.
When we finally located him we found out that he was held pending a hearing set for three weeks later. I contacted his public defender who urged me to do nothing (public defenders in Virginia get paid as long as there is a case which constitutes a conflict of interest). Growing impatient and with $8,000 in my pocket I headed to Virginia and, again against the advice of counsel, negotiated with a judge and bailed him out. At the subsequent court hearing we witnessed a number of accused in lock-up for similar offenses. They were unable to pay and remained in jail. And, every time they were in default, a fine and an additional court fee were added to the amount owed. Unable to work and earn any money these people are at the mercy of the courts and family and friends. This was exactly how it was under the old debtors' system and the very reason why it was abolished.
There is an additional conflict of interest that receives little attention. Prosecutors receive positive attention by putting people in jail. They also receive campaign contributions from interested parties such as the owners of private jails. Combine that with the situation of the public defenders and you find the perfect storm against our less well off fellow citizens.
If you create the circumstances for corruption to creep in then corruption will thrive.