Cash bail system drives mass incarceration of the poor – lawsuit against Detroit

Detroit’s bail system disproportionately harms poor defendants and violates their constitutional rights, according to a lawsuit filed by the ACLU in that city, where a third of the population lives below the poverty line.

The local branch of the American Civil Liberties Union (ACLU) filed the class-action suit on Sunday, claiming the bail process in Detroit’s 36th District Court “punishes” the poor and needs immediate reform.

“A person’s freedom should not depend on how much money they have,” deputy legal director for the ACLU of Michigan, Dan Korobkin, said in a press release.

“Bail was originally intended to ensure a person returns to court to face charges against them,” Korobkin said. “But instead, the money bail system has morphed into mass incarceration of the poor. It punishes people not for what they’ve done but because of what they don’t have.”

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The lawsuit, filed on behalf of eight plaintiffs, describes a “two-tiered” court system, for rich and poor, where a defendant’s legal rights depend on his or her ability to shell out cash.

All eight plaintiffs are African-American and, because African-Americans are five times more likely to be detained than their white counterparts, the bail system has a disproportionate impact on that community. The most recent census data reveals that over one third of Detroit’s residents live under the poverty line.

Michigan court rules mandate “meaningful inquiry” into an arrestee’s ability to pay, and that cash bail should only be ordered in exceptional circumstances, such as when a defendant is a flight risk, or a danger to the community.  The ACLU says the 36th District Court consistently violates those rules.

In hundreds of cases, defendants were rushed through the arraignment process—done through video teleconference—in just minutes, while magistrates routinely set bail without asking about the defendant’s ability to pay. Cash bail was ordered in 85 percent of cases observed by the ACLU.

One of the suit’s plaintiffs was arrested for a five-year-old misdemeanor ticket and was unable to afford the $200 bail. He spent two weeks in jail waiting for his hearing, unable to purchase his freedom. 

It costs around $165 per night to detain somebody in Wayne County’s jail, which holds approximately 1,600 prisoners on any given day. Sixty-two percent of those inmates await trial. That puts taxpayers on the hook for nearly $60 million dollars annually to cover room and board for the pretrial prisoners alone. Detroit is located in Wayne County.

In nearly all the cases the ACLU surveyed, the bail proceedings took place before the defendant had legal representation, a violation of defendants’ right to counsel, the lawsuit says.

During the proceedings, arrestees are barred from asking questions about their case.

“If the arrestee seeks to ask a question, the Magistrate Defendants typically interrupt the arrestee with a warning that anything she says can and will be used against her in a court of law.” the ACLU said in the suit. “In issuing such a warning, the Magistrate Defendants typically do not first inquire whether the individual’s question pertains to the underlying criminal allegations or to the court’s bail determination.”

The ACLU has taken on similar cases elsewhere in the country, such as the suit filed in March against Philadelphia courts. The legal watchdog says the court’s magistrates are indifferent to the poverty of arrestees. Like Detroit’s system, the courts in Philly typically spend fewer than three minutes on each defendant, dispensing hasty judgements on an industrial scale.

A 2017 ACLU report found that for-profit bail companies were making billions off of poor defendants caught up in the legal system. The companies offer loans to cover the cost of bail, but leave the arrestees over their heads in debt. The report also found that nearly 70 percent of people in American jails have not been convicted of a crime, many awaiting trial.

Defendants named in Sunday’s suit include the District Court’s chief judge, Nancy Blount, as well as Wayne County Sheriff Benny Napoleon and five magistrates who handle bail arraignments..

The 36th District Court is the largest in Michigan.

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