Opinion: Michigan judge says it's time to abolish cash bail

I have served the state of Michigan as a judge in the 36th Judicial District Court for over 13 years, and I am delighted to see that our governor has created a Joint Task Force on Jail and Pretrial Incarceration, which will make evidence-based proposals to reduce Michigan’s jail population.

One of the potential recommendations I support is to eliminate the cash bail system. I have witnessed firsthand how Michiganders are sitting in jail simply because they do not have the money to post bail. The cash bail system fails to address the problem of crime in our communities while sending a massive bill to taxpayers. 

Instead of being asked to decide whether someone should be released or held in jail, judges are asked to decide how much money defendants should have to pay to be released. Since judges do not have detailed information on each person’s finances, some of us fail to take the person’s ability to pay into account when setting bail and instead determine the amount based solely on the charge and perhaps criminal history.

As a result, people without means fill our jails. In 2015, more than half of the 15,000 people in local jails across Michigan were still waiting for their court date, not having been convicted of anything. Most of them are indigent.

Meanwhile, people with means are often released, whether they pose a risk to public safety or not. 

The cash bail system plays a surprisingly large role in determining case outcomes. An accused person who cannot afford to post bail and sits in pre-trial detention for just three days is 25% more likely to be convicted or plead guilty and receive a sentence that is, on average, more than twice as long compared to a defendant who posted bail.

As a judge, I watch to see whether someone has taken positive steps in the weeks before his or her case is heard. If the defendant has entered treatment or held down a job, it will likely help his or her case. If the defendant has lost his or her job and been evicted because he or she spent weeks in jail, he or she loses the ability to demonstrate that type of effort and progress.

Just because someone has the money to post bail does not mean he or she deserves a lighter sentence, but the cash bail system ensures that is what happens.

The cash bail system is also a burden on taxpayers. In Wayne County, the average daily jail cost for a single person is $160. With 15,000 people in jail on any given day in our state, the daily cost adds up fast.

While we wait for legislative change, judges can make a difference. Michigan law states that cash bail should only be set in instances where the person is a flight risk or poses a danger to society. Judges should not require cash bail in most cases involving misdemeanors or civil infractions since there would be little threat to society if the accused person were released.

Michigan law also states that “the amount of bail shall not be excessive.” Judges should always make inquiry into a person’s ability to pay and consider any other available financial information instead of setting bail purely based on the offense. 

We can also find common-sense alternatives to help ensure that accused persons appear in court without having to keep them in jail until their trial date. Street Outreach Court Detroit (SOCD) holds court in a soup kitchen to hear misdemeanor and civil cases for homeless individuals.

We need our legislators and our judiciary to tackle the broken bail system and work together to find sensible alternatives.

Judge Cylenthia LaToye Miller has served Michigan’s 36th Judicial District Court for 13 years and was recently appointed to the Third Circuit Court. She is a speaker for the Law Enforcement Action Partnership.