Lawmakers target Michigan's 'pay or stay' cash bail system

Beth LeBlanc
The Detroit News
Michigan State Rep. David LaGrand, D-Grand Rapids

Lansing — A 10-bill package taking aim at the state’s “pay or stay” cash bail system could be picking up momentum a few months after dying in the Michigan House.

The package introduced Wednesday and spearheaded by Rep. David LaGrand, D-Grand Rapids, has the backing of Attorney General Dana Nessel, as well as bipartisan support from lawmakers in both chambers this time around.

The bills seek to stop counties from keeping low-income, low-risk offenders in jail because of an inability to make bail unless the defendants pose a danger or flight risk. The legislation creates best practices for judges who are setting bonds, allows defendants to fill out a financial disclosure form and requires quarterly bail reports from district and circuit courts.

“We need to be leaders in a national conversation about risk and flight risk being the determinants who stays in jail, and not wealth,” LaGrand said at a Wednesday press conference.

Nationwide, civil rights groups have complained the "pay or stay" system has caused jailed defendants to lose jobs, lose custody of their children and make defendants more likely to take a plea deal for time served, even if the person isn’t guilty. The system also costs counties millions of dollars to house the defendants who rarely can pay jail fees for their stays, said LaGrand, a former Kent County prosecutor.  

The jailing of defendants during their court proceedings also can lead to future recidivism, said Nessel, a former defense lawyer and former Wayne County prosecutor.

“I can’t tell you how many times I saw massive injustice as a result of the cash bond system,” Nessel said. “You had people who were needlessly sitting in jail.”

The House legislation has the support of the left-leaning American Civil Liberties Union as well as the fiscally conservative Mackinac Center for Public Policy in Midland, LaGrand said. A similar package is expected to be introduced in the Senate this session.

The Prosecuting Attorneys Association of Michigan supports the bills, LaGrand said, and lawmakers have been working with judges' associations on the legislation.

“The heart of this bill package is to give the judges more information,” he said.

The bills would encourage judges to issue a personal recognizance bond unless the defendant poses an undue danger to the community or there was a significant risk the defendant wouldn’t appear in court for future proceedings.

If the court does set cash bail, it should be the “least strenuous conditions needed” and a judge must determine the amount based on factors like the defendant’s prior criminal record, substance abuse and mental health history, financial status, and the seriousness of the crime. The judge must explain his reasoning on the record.

The legislation would prohibit bail that is purposefully set to keep a defendant in jail. Defendants would be offered a financial disclosure form so a judge would know what they’re capable of paying and the defendants would be penalized if they lied on the form.

The legislation also would require district and circuit courts to make quarterly bail reports to State Court Administrative Office.

“We’re all Americans and I think it shocks the conscience of both liberals and conservatives and moderates when we have a justice system that is rationed by the thickness of your wallet,” said Sen. Jeff Irwin, D-Ann Arbor.

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