Detroit Free Press. March 20, 2021.
Editorial: Unfair Michigan system keeps poor in jail, lets rich walk free
For the fourth time in five years, state Rep.David LaGrand is preparing to introduce legislation intended to make Michigan’s bail system more fair.
LaGrand, a Grand Rapids Democrat, has been a prosecutor and a defense attorney. He’s seen firsthand how the practice of requiring people arrested for minor offenses to pony up cash bail keeps too many Michiganders behind bars — not because they are dangerous, or likely to dodge future court appearances, but because they simply cannot afford even a nominal bond.
“Fifty percent of Americans don’t know where they can get $500 if they need to,” LaGrand says. “Not only do they not have it, they don’t know where they can get it. But bonds are set by people who make more than $100,000 a year, and they don’t understand how out of reach $500 is.”
Those are the circumstances LaGrand, and the broad coalition of prosecutors, county leaders, activists and budget hawks working to reform cash bail want to change. The legislation LaGrand plans to introduce wouldn’t shepherd violent offenders onto the streets; it would simply require courts to consider a defendant’s ability to pay when setting a cash bond.
But bail reformers are pushing a rock uphill: In previous sessions, reform bills have stalled, not even granted a committee hearing.
Bail reform has the support of judges, defense attorneys, the Prosecuting Attorneys Association of Michigan and institutions as ideologically diverse as the Free Press Editorial Board and the libertarian Mackinac Center.
“I’m confident most people in the state House and Senate want to reform cash bond,” LaGrand says.
So why hasn’t it happened?
Bail bondsmen — led by state Rep. Matt Maddock, R-Milford, who owns a bail bonding agency that operates in 28 Michigan counties — have been formidable defenders of the unjust status quo. They stand to lose income if fewer arrestees are required to post cash bail, and they’ve protected their turf by fueling public misconceptions about who is in jail and why they are there.
It’s time to change that — and for the state Legislature to pass these much-needed reforms.
How it works ... and doesn’t
Judges and magistrates routinely deny bail altogether for defendants they deem dangerous. In most other cases, courts have discretion to set a cash bond, refunded once the case is resolved, intended to ensure the criminal defendant has a financial incentive to return to court, and not to repeat dangerous behavior while released on bond — often financed through a bondsman like Maddock, who charges 10% of the bond’s value.
Michigan law says that in most cases, people who have been arrested should be released on their own recognizance: In other words, the court accepts their promise to show up, without requiring any cash payment.
But that’s not how it works in practice.
A Vera Institute of Justice report on the Wayne County Jail found that before the COVID-19 pandemic, just 9% of defendants in Wayne County were released on their own recognizance. Thirty-nine percent of those for whom the court set low cash bonds — $5,000 or less, an effective cost of $500 for those who can afford a bail bondsman’s services — remained in jail until their trials were over, while wealthier defendants, even those charged with more serious crimes, were able to bond out.
Bail reform legislation would require Michigan courts to adhere more closely to state guidelines that give preference to release on recognizance, and, most crucially, include a means test.
“No one is setting a $500 bond because they think it keeps the community safe,” LaGrand says. “They think it means the defendant has skin in the game.”
But the financial incentive that courts hope will ensure a defendant returns to court extracts a devastating toll. Michiganders who can’t afford to make bail may lose their jobs, and ultimately their housing. If they are unable to care for their children while in jail, Child Protective Services may step in; even parents awaiting trial for a non-violent traffic charge can risk losing custody.
Two-thirds of people housed in Michigan jails — about 18,000 on any day, when there’s not a pandemic in play — are awaiting trial, have violated parole or probation, or are delinquent on child support payments. Just one-third are serving sentences for charges that have been adjudicated.
Criminal traffic offenses, excluding drunken driving, accounted for six of the top 10 most common charges handled by Michigan courts, according to a 2020 report by the Michigan Joint Task Force on Jail and Pretrial Incarceration.
The jail task force found that people incarcerated while they await trial are more likely to plead guilty — an outcome researchers suggest has more to do with a desire to be released than criminal responsibility. They are also more likely to be convicted, and more likely to be sentenced to longer terms. One out-of-state study found that defendants detained pre-trial were more likely to be arrested again than those released.
In all of these circumstances, Black Michiganders are more likely to be hurt than their white neighbors.
Myths, and facts
“There are myths out there that opponents to the bail reform movement have repeatedly and effectively put out into society,” says Twyla Carter, national policy director for The Bail Project, a nonprofit community bail fund that advocates for bail reform. “One myth is that you need to have skin in the game, if you will, money on the line, to ensure you return to court.”
Maddock and other bail bondsmen peddle the scary prospect that bail reform will unleash dangerous criminals to wreak havoc on Michigan communities. A press release posted to the American Bail Coalition’s website in 2018, when LaGrand’s last legislation was introduced, blares the absurd headline, “Socialist-Endorsed Michigan Bail Reform Plan Announced.”
But the Bail Project’s experience gives the lie to the bail bond industry’s spurious claims.
“The Bail Project and other charitable bail funds obliterate that myth by putting up the money ourselves,” Carter says. “Nationally on average, our clients return to 90% of their cases. We find that when you provide people with transportation assistance, text reminders, folks return to court.”
The vast majority of people who don’t return would come to court but for life getting in the way, Carter says. “Most people are not trying to miss a court hearing and then three weeks later get unexpectedly arrested on a warrant. That’s not how most people live, period.”
Going, going, gone
Newly elected Washtenaw County Prosecutor Eli Savit has abandoned cash bond altogether. Newly elected Oakland County Prosecutor Karen McDonald campaigned on ending its use. Veteran Wayne County Prosecutor Kym Worthy supports reforming cash bond, and believes it should never be imposed for civil infractions or ordinance violations, and only sparingly for traffic offenses and some misdemeanors. (Domestic violence and stalking cases, she says, should be exceptions.)
Worthy argues that prosecutors cannot unilaterally change the cash bail system. “Prosecutors supporting legislation that changes the cash bail system is what works,” she says. ”... I have been a judge and had to make those tough, individualized decisions. No one should be denied bail simply because they are poor.”
Macomb County Prosecutor Peter Lucido agrees that the impoverished shouldn’t be penalized in the justice system. Lucido says he supported reforms passed last year, during his tenure in the state Senate, that allow police officers to give tickets in lieu of making arrests for some offenses, and says he believes trials for low-level, non-violent offenses should happen quickly; those changes, he said, would negate the need for bail reform.
Matt Wiese, Marquette County Prosecutor and president of the Prosecutors Association of Michigan, says his organization is likely to support new cash bail reform bills that mirror those introduced in past sessions.
“Collective opinion has swung the pendulum” on bail reform, Wiese says. “Someone shouldn’t lose their job or lose their children because they’re sitting in jail on a suspended license or ticket they couldn’t pay. ... As a whole, prosecutors agree that we don’t want to have a disparity of impact based on economic circumstance.”
What bail reform won’t do
No one supports putting dangerous criminals back on the street. And there’s no evidence that abolishing cash bail for low-level offenses would do that.
“No one is advocating that violent offenders or people who are a risk to the community be released prior to adjudication,” LaGrand says. “The core of my package is a means testing mechanism. It asks them how much cash do you have, so no judge can say, ‘I didn’t know.’”
Nor would preserving the status quo guarantee that those who do pose a risk stay behind bars.
“If a person is truly a danger to the community, but they have access to resources, they are getting out of jail,” Carter notes. “They are able to buy their freedom. So this isn’t about public safety, this is about money. You know the cash bail system is flawed when a person who might actually be a danger to the community and has access to resources can buy their freedom, and a person who throws a rock through a window, for example, but does not have access to resources, remains in jail.”
There’s also the expense borne by cities and counties: It costs about $1.35 million a day to house a jail population that averages around 18,000 inmates. LaGrand says releasing low-level offenders, instead of assigning them low cash bonds, would conservatively save local municipalities a collective $100 million.
When COVID-19 hit Michigan a year ago, jails across the state realized that it was essential to quickly release non-violent jailed defendants who might previously have spent days or weeks behind bars, some on tethers, and some on personal recognizance.
It’s progress, of a sort — though bail reform advocates warn that tethers and other electronic monitoring devices can also present an unfair financial burden for poor defendants ordered to pay for them.
What’s going to happen
Last year, bail reform was finally on the state Legislature’s lame-duck agenda. But when his bills were slated for a hearing, LaGrand says, “We lost a critical week to Rudy Giuliani.” Giuliani appeared before the Legislature in December to press Donald Trump’s unfounded claims that Michigan’s presidential election had been stolen.
LaGrand is hopeful that his bills will move this time, and a spokesman for State House Speaker Jason Wentworth, R-Clare, said the House’s new GOP leader has signaled that he’s open to consideration.
“Rep. LaGrand has been a great partner on criminal justice reform, especially working with Rep. Graham Filler (R-DeWitt, chairman of the House Judiciary Committee) to generate ideas and work with victims, volunteers, advocates, families, and law enforcement to help develop those ideas,” the spokesman wrote in an email. “The specifics of the speaker’s agenda on criminal justice reform is largely going to be based on what members like them put together and where they can find common ground with everyone else in the House.”
Meanwhile, the ACLU of Michigan has filed a lawsuit arguing that the 36th District Court judges are violating the Constitution by imposing cash bail requirements on defendants too poor to pay.
“Every day I don’t get this done is a day thousands of people’s lives are being disrupted,” LaGrand says.
That’s not hyperbole. We’ve criminalized poverty, without keeping any of us safer — and it’s costing all of us an awful lot of money.
There’s no moral or practical argument for maintaining the status quo. The last state Legislature deserves praise for enacting many of the criminal justice reforms prescribed by the state jail task force. But there’s work yet to do, and no excuse for inaction.
Traverse City Record-Eagle. March 21, 2021.
Editorial: Transparency isn’t about journalists, it’s about public access to government
Seeing is believing , and in Michigan, we wouldn’t see much of our government without laws like the Freedom of Information Act and the Open Meetings Act.
Those laws are meant to set in stone requirements that guarantee Michiganders have a chance to pop the hood and see the inner workings of the government we pay to operate. It’s essential that we all take time to look beyond the shiny veneer regularly and examine the guts of our governance. After all, the machinations that often occur behind closed doors have a heck of a lot of impact on our lives and wellbeing.
Think about it, very little of what we know about the operation of our government — at least the stuff we all find pretty important — is handed out by bureaucrats on the street corner. Most of the important revelations about how public business is conducted on our behalf is pried loose with tools like FOIA.
Severance agreements for public officials — FOIA. Communications about groundwater contamination — FOIA. Records passed between agencies that shape pandemic response — FOIA.
Our open records law, despite frequent use by journalists, is intended to benefit and protect the people of Michigan from government that runs amok when it operates behind a shroud. And a transparent government is the least partisan issue confronting our state at the moment. Need evidence, take a minute to look at how preserving government opacity seems to consistently unite many Democrats and Republicans in the Michigan Legislature as well as the executive branch.
That’s why we spent part of this week (Sunshine Week) working to outline a roadmap to help our more curious neighbors to solicit records from their government using FOIA. We’ve outlined the basics of how to seek records and what to do when a government responds to your request. We bemoaned some of the most egregious flaws in our state’s transparency mechanism along the way.
But we saved our most important wisdom, and our biggest gripe, for last.
In Michigan, if you are denied access to records, and you believe the government you petitioned for those records erred in its denial your options are slim.
First, our FOIA law allows requestors to appeal denials in writing to the head of an agency or the elected board that oversees a government. It’s a relatively low-cost avenue to challenge a denial, one our journalists employ from time to time. Appeals are a chance to put into writing our arguments that a government ran afoul of the law by blocking access to records or by employing overzealous redactions.
Sometimes it works — think about the time the Traverse City Area Public Schools board voted to overturn erroneous redactions the district employed in response to a request for communications about former superintendent Ann Cardon. But the district’s denial of another part of that appeal highlights a fatal flaw in Michigan transparency law.
In Michigan, if a public body or agency director rejects an appeal, the only avenue for the public to overturn the decision is through a slow, expensive trip into circuit court.
The absence of an independent arbiter between appeal and court dooms many legitimately public records to obscurity in Michigan. Most people simply don’t have the time, money or patience to spend months or years overturning illegitimate denials in court.
We are hopeful bills introduced in the legislature this year and a fledgling ballot initiative will address this Achilles heel (and many other fatal flaws) in Michigan’s public records law.
In the meantime, we will continue seeking records and examining the inner workings of our government.
And we hope you join us.
Alpena News. March 15, 2021.
Editorial: Watch redistricting process carefully
With the 2020 census done and data wizards crunching numbers as we speak, the time is almost near for the decennial redrawing of congressional and legislative districts that can determine which political party maintains control of state and federal government.
According to the terms of both the state and federal constitutions, political districts are drafted so each congressperson and each state representative and state senator represents similar numbers of people.
For years in Michigan, those districts were drawn by whichever political party held the majority in the legislature, allowing opportunistic politicians to carve up the state map in a way that divided up regions populated by the other party, making it at least very hard — if not impossible — for the other party to win enough seats to gain control. That’s called gerrymandering.
This year, for the first time, Michigan’s districts will instead be drawn not by lawmakers but by a bipartisan commission of residents from throughout the state. The commission, created by a 2018 voter referendum and made up of randomly selected voters, is meant to make the process fairer and less political.
The commission is expected to get to work once census data is released later this year and wrap up the new maps by year’s end. Voters will elect lawmakers to those new districts beginning in the 2022 race.
We urge all Michiganders to watch that process carefully, to participate in town halls and share their ideas about how the districts should be drawn. It is a grand experiment, to give more power over politicians to the people, and it’s up to each of us to make sure it works the way it’s supposed to.