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Detroit Cash Bail Reforms to Address Racial Inequality

Michigan’s largest district court and bail reform advocates have agreed to settle a federal class action lawsuit over cash bail practices, which activists say routinely and unconstitutionally imprison impoverished defendants and the working class despite evidence of their inability to pay.

Both sides say the reforms, which will be announced on Tuesday, undermine racial inequality in the criminal justice system. Every day in Detroit, the nation’s blackest city, nearly three-quarters of those imprisoned are black, a far greater proportion than their share of the population.

If the reforms reduce that disparity, it could be a model for justice systems nationwide, where race and wealth are important factors in the administration of justice, advocates say.

Detroit’s 36th District Court, the American Civil Liberties Union and The Bail Project, a nonprofit that provides bail to those in need, said in interviews ahead of Tuesday’s announcement that the status quo was wreaking unnecessary havoc on the jobs, homes and families of the defendants.

“This is a historic agreement that we believe can and should be a model for how courts across the country can adapt their bail practices to what is legal, constitutional and makes sense,” said Phil Mayor, senior attorney for the ACLU of Michigan.

Chief Judge William McConico of the 36th District Court said the class-action settlement, filed in 2019 just before he became chief, offered an opportunity to show law enforcement and activists can work together to change the criminal justice system.

“Other African-American cities will be able to point to what one of the largest district courts in the nation is doing to address this issue,” said McConico, who is black. “That’s why it’s so important that it starts in a big black city, that it doesn’t roll out to a suburban town or a small courthouse.”

The reforms do not prevent judges from imposing cash bail, particularly if defendants are considered a flight risk or a danger to the public. However, all Detroit judges and magistrates must publicly say how imposing bail would protect the community or prevent a default from appearing. Judges must also formally determine how much a defendant can afford to pay.

The parties have also agreed that any defendant who is 200% of the federal poverty level or less shall be presumed unable to post cash bond. According to the 2022 federal guidelines, 200% of the poverty level corresponds to an annual income of approximately $27,000 for an individual and $55,000 for a family of four.

“This should largely eliminate the practice of imposing what may appear to some to be small cash bonds, which in effect constitute a prison sentence for someone who has not yet been convicted of a crime. “said the mayor.

The parties also agreed to new rules stipulating when and what triggers a bail review hearing, if a defendant’s bail has been set but is not paid. The hearing would allow the bond amount to be reduced or withdrawn altogether if it is later found to be unaffordable.

The reforms in Detroit come as some states and local jurisdictions across the United States have rolled back or are considering rolling back bail reforms in response to a rise in pandemic-era crime. From San Francisco to New York and cities in between, rhetoric around rising violence and harmful crime has slowed political momentum despite bipartisan agreement that mass incarceration is expensive and has no proven positive effect on public safety.

“We always come forward in a very thoughtful way, to say that the presumption of innocence is important, that the mass incarceration of people in pretrial detention must be reversed and that racial disparities at the stage of pretrial detention must be addressed in a very real,” said Twyla Carter, outgoing national legal and policy director of The Bail Project.

The ACLU, the NAACP Legal Defense and Educational Fund, The Bail Project, and the law firm Covington & Burling LLP sued the Chief Justice, court magistrates, and Wayne County Sheriff in the U.S. District Court of Eastern District of Michigan in 2019, on behalf of seven black plaintiffs. The plaintiffs alleged that the only reason they remained in jail was that they could not afford to post bail.

At the time of her incarceration in April 2019, one complainant, Starmanie Jackson, a poor single mother of 2- and 4-year-olds, had her bail set at $700 for traffic tickets and a domestic violence charge. Because she could not afford to pay, Jackson, who had never been arrested before, was separated from her children for the first time in their lives.

“I was devastated,” Jackson, 27, said. “It was nerve-wracking, scary and disappointing as we depend on our justice system to keep us safe and on track.”

She said her family could not locate her for two days as prison officials struggled to confirm where she was being held. Following her incarceration, Jackson, a certified nursing assistant, said she lost a new job at a nursing home when she failed to show up for her first shift and was evicted from her apartment after using her rent money to help pay her bail. . The domestic violence charge was eventually dropped, and Jackson never served another day in jail.

The settlement allows for a happy ending to what ended up being a nightmare, said Jackson, now a mother of four.

“I’m thrilled because I’m able to help people get through some of the challenges in our justice system, which is already overstretched,” she said.

As part of the settlement, Jackson and the other plaintiffs will split a payment of $14,000. Lawyers for the plaintiffs said the amount was agreed knowing the court would also spend money tracking bail and remand. The court did not admit any wrongdoing under the settlement.

According to a 2020 report from the Michigan Joint Task Force on Jail and Pretrial Incarceration, between 2016 and 2018, black men made up 29% of prison admissions in the counties sampled by the task force, even though they made up only 6% residents. population in these counties. Between 2018 and 2019 in Wayne County, black people made up 70% of those held in the local jail on any given day, even though they made up only 39% of the resident population.

Recent nationwide studies show that black defendants make up the majority of those in pretrial detention. However, the incarceration rate for black people declined between 2008 and 2019, according to the latest federal data.

Former U.S. Attorney General Eric Holder, who is a senior attorney at Covington & Burling, praised the Detroit District Court for reaching the reform agreement. “This is how our criminal justice system should work,” he said. “This can and should be a model for other jurisdictions across the country.”

Ezekiel Edwards, vice president of pretrial criminal justice at Arnold Ventures, a philanthropic organization supporting research and policy work on justice issues, said bail systems in the United States have become more reform-minded over the past of the last decade. But the political landscape is still a patchwork, he said.

“Cash bail is still used in most jurisdictions across the country and without the necessary regulations or limitations,” Edwards said.

As for achieving racial justice in Detroit, McConico said there will be a racially diverse bar and a majority black bench of judges and magistrates working together under the new administrative policies to ensure they have a chance to succeed.

“It won’t just be symbolic,” the chief justice said. “There will be African Americans making a change to the criminal justice system that will disproportionately impact African Americans.”