A new lawsuit aims to end cash bail and overhaul the pre-trial justice system at Detroit’s 36th district court.
The ACLU filed the federal class action suit Sunday. It argues that the 36th district’s current process for arraigning defendants violates their constitutional rights in several ways.
The lawsuit contends that bond hearings before 36th district judges are cursory. Most take place via video conference and last less than five minutes. Defendants don’t normally have a chance to make their case for pre-trial release, nor does the court make any inquiry into their ability to pay bail. And the vast majority of defendants don’t have lawyers at arraignment.
As a result, the lawsuit argues, around 85% of defendants are required to pay cash bail. That leaves many defendants sitting in jail without having been convicted of a crime. Estimates suggest around 60% of the Wayne County jail’s population at any given time is pre-trial defendants.
“Plaintiffs seek injunctive and declaratory relief addressing the 36th District Court’s policy and practice of imposing secured cash bail conditions without a hearing at which an arrestee’s ability to pay is considered as required by the Fourteenth Amendment, and without constitutionally required individualized findings that the arrestee is an unmanageable flight risk or an identifiable and articulable danger to the community and that such risks cannot be alleviated by alternate non-financial release conditions,” the ACLU of Michigan, the national ACLU, and co-counsel Covington & Burling LLP write in their complaint. “Plaintiffs also seek a permanent injunction prohibiting the Wayne County Sheriff from holding new pre-trial detainees in jail unless constitutionally adequate bail hearings have occurred.”
Dan Korobkin, deputy legal director with the ACLU of Michigan, says the cash bail system allows people with money to walk out of jail, while the poor stay behind bars, regardless of whether they are a true flight risk or pose a danger to the community.
“Originally, bail was supposed to make sure that people returned to court to face whatever charges are pending against them. But instead, the money bail system has morphed into mass incarceration for the poor,” Korobkin said.
Korobkin says there should be a presumption of pre-trial release in almost all cases. “Except in truly extraordinary circumstances, people accused of crimes who are presumed innocent should be going home to their families, not sitting in jail because they’re too poor to pay bail,” he said.
Korobkin argues there are better, fairer ways to make sure defendants show up to court. He points to Washington, DC, which has done away with cash bail and releases 90% of pre-trial defendants. Of those, 90% show up for their court dates.
Simple measures like text message reminders and transportation assistance have proven at least equally effective at getting people back to court, says Amanda Alexander of the Detroit Justice Center. That group, working with the Detroit chapter of the national Bail Project, works to free people incarcerated because they can’t make bail.
“It’s essentially this devastating system where if you are poor, and your family cannot afford that few hundred dollars to bail you out, you are stuck with some pretty awful consequences,” Alexander said.
Alexander says an inability to pay bail can cause people to lose their jobs, housing, and in some cases custody of their children. Pre-trial detention can also force people to consider taking guilty pleas even if they are not guilty, just to get out of jail.
“The 36th district court is all about just churning people through, processing them through quickly. And oftentimes it is a minute or so, that this determination that can make someone’s life fall apart is made,” Alexander said.
The lawsuit is filed on behalf of seven initial plaintiffs, all locked up in the Wayne County Jail because they can’t afford their bail.
Plaintiff Davontae Ross’s bail was set at $200 for what he says is “an old ticket for staying in the park after dark.”
“I cannot afford the bond amount because I am unemployed,” Ross, 24, wrote in a statement. “My fiancé and I rely on government assistance like food stamps and WIC.”
“During the time I’ve been in jail, I have missed an appointment with child protective services, my GED class, and a job interview. If I stay in jail, I will not be able to provide for my children who are two years old and three months old.”
Another plaintiff, Timothy Lucas, was arrested April 9th for misdemeanor assault and battery. Lucas, 65, lives in a rooming house and says he can’t afford $300 for bail. He reports having a variety of medical conditions, including seizures and asthma, and lives on disability payments.
“If I stay in jail because I can’t pay the bond, I will not be able to get my things from my room, including my deceased mom’s, sisters’, and wife’s obituaries and my photo album,” Lucas wrote. “I can’t get my medications. All of my medications and personal documents are there.”
The lawsuit names 36th district court Judge Nancy Blount, the court’s six magistrates, and Wayne County Sheriff Benny Napoleon (as jail administrator) as defendants in the lawsuit. The court could not be reached for comment on the lawsuit Sunday.