Facts, Not Fear, Should Inform Michigan Bail Reform

In recent weeks, innocent people have been shot—and some killed—for mistakenly ringing the wrong doorbell, opening the wrong car door or driving up the wrong driveway looking for friends. It is more obvious than ever that some people have lost confidence in the security provided by the government and have decided to take matters into their own hands with firearms.

It is critically important to counter the misperceptions and false narratives that produce the insecurity that begets these tragic criminal acts with research, facts and experience. Some of the most common misconceptions that feed this narrative are about bail reform, and Michigan has the opportunity to change these misconceptions.

Of note, Illinois, Michigan’s neighbor, has likened bail reform changes to The Purge—which is hyperbole at its most dramatic—but it brings home the reality that people want to feel safe. It also illustrates that public acceptance of the law, procedures and actors in the system are crucial to a state’s ability to provide public safety. Illinois did not strike the right balance to create this reality, but Michigan has a chance to get what they got wrong, right.

Legislation introduced in Michigan’s last session—and that will probably be reintroduced in the current General Assembly—allows the release of low-level, nonviolent criminals and provides additional safety measures if flight or safety is found to be a concern. These released individuals will be required to abide by standard terms and conditions that include a pledge to return for court dates, maintaining the same contact information and residence address, and not leaving the state or committing new crimes. For individuals accused of violent or serious crimes (such as sexual assault, assaultive crimes and serious misdemeanors), repeat offenders, and those that have absconded while on release, cash bail can be added to nonmonetary safety conditions. Further, one of the provisions that will likely be included in the package is distinguishing between “nonappearances” and “absconding” before a trial, recognizing that some failures to appear on a specific date are less intentional or involve extenuating circumstances.

Currently, Michigan Court Rules provide that “the court must order the pretrial release of the defendant on personal recognizance, or on an unsecured appearance bond […] unless the court determines that such release will not reasonably ensure the appearance of the defendant as required, or that such release will present a danger to the public.”

Interestingly, the Eastern District federal courts in Michigan have been a national model for pretrial release, and a formal study noted a pretrial release rate that was 32.5 percent higher than the average of federal district courts. Although the two systems are addressing different crimes, the fact is that pretrial release disfavoring monetary bail has a strong workable history in the state.

According to a 2020 report by the Michigan Joint Task Force on Jail and Pretrial Incarceration, approximately half of the state’s jail population is made up of individuals who are being held pretrial. Data from Michigan and other states and local jurisdictions that have already implemented bail reform suggests that many of these individuals could be safely released if the right alternatives to cash bail were available. The task force also concluded that current Michigan law provides little to no guidance on when alternatives to jail should be the preferred or presumed intervention.

Michigan law also allows release with conditions even if there is some evidence of flight risk or danger to the public. The conditions are designed to decrease risk and include curfews, drug testing, location monitoring, surrender of driver’s license and passport, and noncontact with other parties. However, 38 percent of pretrial detainees are sitting in jail on bonds of less than $2,500.

Proponents of bail reform argue that cash bail unfairly punishes low-income individuals and contributes to the over-incarceration of people who have not been convicted of a crime. They also argue that one key piece of evidence in support of bail reform is the fact that many individuals who are detained pretrial are not actually a threat to public safety.

Recent experience shows that the right kind of reform can be effective in reducing both pretrial detention and crime. For example, New Jersey implemented a bail reform system in 2017 that eliminated cash bail and instead relies on assessments by pretrial services to determine whether a defendant should be released before trial. Since then, New Jersey’s pretrial detention rate has dropped by over 40 percent, and crime rates have remained stable or decreased.

Based on this and other successful efforts around the nation, legislation will be introduced in Michigan to set up and certify pretrial services in every judicial district to maintain an accountable system of notification for court dates and oversight of release conditions.

Once the adverse effects of pretrial detention are taken into consideration, these reforms will likely benefit the communities most impacted by crime, contrary to popular media narratives. And resources can be prioritized for the most violent and serious offenders.

Cash bail reform is a crucial issue in Michigan, as it is across the country. Reforming the monetary bail laws that have been demonstrated to be poorly calibrated proxies for either nonappearance at judicial proceedings or threats to public safety is likely to help address crime and keep communities safer. By implementing alternative pretrial release mechanisms and relying less on cash bail, the state can reduce pretrial detention, protect individual rights and freedoms, and potentially reduce crime rates.