The ACLU and Detroit’s 36th district court have settled a lawsuit over the court’s cash bail practices, in what both sides of the case call a “groundbreaking” deal.
The ACLU sued the 36th district court, Michigan’s busiest, in 2019. It accused the court of violating defendants’ rights by routinely setting cash bail as a condition for release—often for low-level offenders who couldn’t afford it. The result was many people being incarcerated without ever being convicted of a crime.
These pre-trial detentions, even very short ones, can have enormous and spiraling consequences for people and their families, said ACLU of Michigan senior staff attorney Phil Mayor. For some of the plaintiffs in the case, that included losing jobs, homes, and child custody.
“Studies have shown that this widespread misuse of cash bail makes communities less safe because of the devastating impact on people, families and the community,” Mayor said. “As a result, both sides of our partnership have agreed that locking a person in jail before their case goes to trial will be the rare exception rather than the rule.”
36th district court chief judge Bill McConico said that from now on, cash bail will only be used in rare circumstances for serious charges, such as when the defendant is deemed a flight risk or a threat to public safety. Judges will also have to inquire about a defendant’s ability to pay bail, and people who make under 200% of the federal poverty level ($55,000 for a family of four) will be considered unable to pay.
McConico said the settlement “preserves judicial discretion while ensuring that judges are exercising that discretion lawfully and wisely.” He said it will also “ensure that people who do not pose a threat to public safety or a flight risk do not remain in jail due to unaffordable bail. It also ensures that the pressures of being in jail do not result in coerced plea bargains.”
McConico said he believes the agreement can be a state and nationwide model for cash bail reform, which is increasingly widely seen as outdated and unjust, and proof that it’s “possible to develop policies and practices to reduce unnecessary incarceration associated with cash bail while still protecting the public.”
Former U.S. Attorney General Eric Holder agreed. Holder, who attended the Detroit press conference where the settlement was announced, said that it demonstrates that “we can have fairness in our criminal justice system, and we can protect public safety.”
“Far too often these two goals are presented as competing interests. This is particularly so regarding efforts to reform bail or pretrial detention. But this is a false choice. There is not a tension between the two.”
McConico said 36th district court will also continue to pursue other reform measures. Those include requiring court-appointed counsel for all defendants, including at arraignments; and rescheduling court dates for people who miss their first hearing on most misdemeanor charges, rather than issuing a warrant for their arrest. The court is also ramping up its text-messaging reminder program for court appearances, which has proven effective at getting defendants to show up for court.
