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Opinion | Michigan must reduce use of cash bail for pretrial detention

Michigan's pretrial system is not working. 

It lets some dangerous criminals walk free while locking up many low-risk defendants simply because they cannot afford cash bail. But Michigan has an opportunity to strike a balanced approach to criminal justice reform that does not require a choice between public safety and upholding the constitutional rights of defendants.

Vittorio Nastasi
Vittorio Nastasi is director of criminal justice reform research at Reason Foundation, a libertarian think tank based in Los Angeles.

In the United States, people accused of committing crimes are presumed innocent until proven guilty beyond a reasonable doubt. However, a presumption of innocence does not mean defendants are allowed their freedom before trial.

On any given day, approximately 9,000 people who have not been convicted of crimes sit in Michigan jails, representing nearly 60 percent of the state's local jail population. Thus, most people in jail in Michigan today are presumed innocent, and some will ultimately be found innocent.

Judges have the difficult task of deciding who should be freed before trial and what release conditions are appropriate to ensure public safety is protected and court appearances are made. In most cases, judges have two options: release defendants on their own recognizance (essentially a promise to show up for future court dates) or release defendants with conditions, such as bail or electronic monitoring. 

In cases involving serious crimes or defendants with criminal histories, judges may detain the defendant before and during their trial.

One major problem with Michigan's pretrial system is its over-reliance on monetary bail. As a result, some dangerous criminals can walk free simply by posting bail, while low-risk defendants who may be innocent but cannot afford bail are stuck behind bars. 

It is unjust to detain people who are presumed innocent and do not pose a threat to public safety. Even just one or two days in jail can cause someone to lose their job — often with devastating economic consequences for their family. 

Unnecessary pretrial detention is also expensive for Michigan taxpayers. County jails and corrections cost taxpayers $478 million in 2017 alone, the most recent year available.

Research suggests detaining non-violent defendants can also undermine public safety. Those detained, even for short periods, are more likely to be rearrested in the future, all else being equal. There is evidence that maintaining employment and ties to the community are key ways that defendants stay on the right side of the law when they are allowed free.

Getting pretrial decisions right requires individualized consideration and public safety risk assessment. Unfortunately, courts are often short on resources and overloaded with cases. Judges are very busy, and there are few standardized guidelines for pretrial decisions. 

Under Michigan state laws and court rules, release should be the default decision for non-violent offenses, and bail amounts should be minimal. In practice, courts tend to overly rely on cash bail instead of making actual risk assessments, and some people end up in jail simply because they cannot afford bail.

The good news is that lawmakers have a roadmap to a fairer system. 

In 2020, a bipartisan Michigan Joint Task Force on Jail and Pretrial Incarceration report outlined several recommendations for reform. The recommendations reflect the input of a broad coalition of lawmakers, law enforcement officers, judges and community stakeholders, and the reforms would put more evidence-based strategies in Michigan's pretrial toolbox. 

Standardized risk assessment tools, pretrial supervision, text-message reminders for court appearances, transportation assistance and remote check-ins could be cost-effective tools for reducing the state's reliance on cash bail.

The task force did not recommend eliminating cash bail completely, and efforts to do so in states like New York and Illinois are misguided. Cash bail is an important tool for managing defendants with a high risk of flight or failure to appear. Moreover, taking away the option of setting monetary release conditions could increase unnecessary detentions.

Fixing Michigan's pretrial system requires a balanced approach that recognizes the presumption of innocence for those arrested while preserving public safety. The task force's recommendations provide a roadmap for achieving this goal. Lawmakers should seize this opportunity to fix Michigan's pretrial system in a way that prioritizes both public safety and defendants' constitutional rights.

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