A person arrested and charged with a crime can often post bail to be released and allowed to go home. Bail is an insurance bond that guarantees a criminal defendant will appear at future court hearings and trial. A defendant who fails to appear for a court date forfeits the bond money and can be arrested again. The amount of money needed to post bail varies by the nature of the offense and is set by the judge. However, a defendant’s ability to afford bail should not be the sole factor that determines whether a defendant can be released pending trial.
Many criminal justice advocates, including the Detroit Justice Center and the American Civil Liberties Union (ACLU), recommend eliminating money bail because it criminalizes poverty, reinforces systemic inequality, and undermines the presumption of innocence.
The ACLU of Pennsylvania has determined that other methods are more effective at securing a defendant’s appearance at court dates and trial. Phone call reminders increase appearance rates by 42%, and mail reminders may increase appearance rates by as much as 33%. Unsecured monetary bail is also more effective than monetary bail in getting defendants to show up to court.
America’s cash bail system is fundamentally unfair and inflicts significant harm upon communities in which it is used. Money bail forces defendants to pay for their release before they have been convicted and effectively serves as a pre-conviction punishment for people who cannot pay.
Debtors’ prisons were abolished by Congress in 1833 and are illegal in all 50 states. The US Supreme Court has determined that states may not constitutionally imprison indigent defendants as punishment for a crime simply because they cannot afford to pay. America is one of only two countries in the world that use cash bail. The other is the Philippines.
Few would argue that being forced to sit in jail is not a punishment. Yet every day, hundreds of thousands of Americans sit in jail, awaiting trial, simply because they lack the funds to make bail.
There are many examples of the inequities of a cash bail system, but the following two examples illustrate the point.
The cash bail system exacerbates the poverty that left many defendants unable to post bail in the first place. Under Michigan bond rules, a defendant who cannot post bail can turn to a commercial bond company to post bail on their behalf. These companies charge exorbitant fees that trap people in a cycle of debt.
Even defendants held in jail for “one to three days” are at serious risk of losing their jobs. These employment-related consequences can have long-lasting and far-reaching effects. According to the IRS, people detained on money bail are at significant risk of being unemployed three to four years later than those who were not detained.
The Washtenaw County Prosecutor’s stated policy is not to seek cash bail in any case. Instead, they seek non-monetary pretrial conditions, up to and including pretrial detention, based on the threat a criminal defendant poses to the community, not how much money a defendant has.
Prosecutor’s offices across the country have taken a similar position. For example, the San Francisco District Attorney’s Office, the State Attorney in Chittenden County, Vermont, and the Commonwealth Attorney in Fairfax County, Virginia no longer request money bail. In jurisdictions that have eliminated cash bail, prosecutors still seek to hold people pretrial if they pose an imminent risk to public safety. However, a defendant’s financial situation is not part of the equation.
Nonetheless, even in Washtenaw County, some criminal defendants will still be held in pretrial custody without bail. Defendants charged with murder, treason, first-degree criminal sexual conduct, kidnapping with the intent to extort money or another valuable thing, or armed robbery will still be held without bail. Defendants who have committed two or more violent felonies in the past 15 years, or who were charged with a violent felony while on probation, parole, or pretrial release for another violent felony will also be held without bail.
Washtenaw County Assistant Prosecuting Attorneys have been instructed to seek the least restrictive pretrial release conditions that still ensure public safety. For most offenses, this means release on a personal recognizance bond.
Even though it is the policy of the Washtenaw County Prosecutor’s Office not to request cash bail, prosecutors will seek unsecured and surety bonds in cases when they deem it necessary to ensure public safety or to secure a defendant’s appearance at trial.
In lieu of cash bail and depending on the circumstances of a particular case, Washtenaw County Assistant Prosecuting Attorneys may consider:
If you were charged with a crime in or around Ann Arbor, Michigan, Elmen Legal can help. Robert Elmen is a talented and sought-after criminal defense attorney with extensive experience representing people accused of crimes throughout Michigan. He will fight to have the charges dropped or negotiate a substantial reduction in the severity of the penalties you face.
Call (734) 707-8915 or contact Elmen Legal online today to schedule a free, confidential, no-obligation appointment to discuss your situation and how Attorney Elmen can help.
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