Michigan Cues Up Bail Overhaul as Other States Eye Illinois Ban

Michigan is poised to become the next state to implement a cash bail overhaul, in an effort to address concerns about racial and economic disparities in a system that some say incentivizes less affluent defendants to plead guilty in order to secure their release.

State Rep. Stephanie A. Young (D) hopes to move forward in the coming year with a package of bills aimed at revising bail in Michigan, which were introduced in May.

But the changes won’t go as far as Illinois’ elimination of cash bail, which recently took effect after legal challenges that went up to the state Supreme Court. Observers say states are watching the Illinois effort, and if it succeeds, others are likely to follow suit.

Illinois’ first-of-its-kind abolition of cash bail under the SAFE-T Act and the proposed Michigan package come on the heels of similar efforts in New Jersey, New York, California, and Alaska.

California’s changes, signed into law by Gov. Jerry Brown (D) in 2018, were struck down in a 2020 state proposition led, in large part, by the bail bond industry. Alaska undid its 2018 revisions to its cash bail scheme when Gov. Mike Dunleavy (R) took office later that year. New York has trimmed its bail changes enacted in 2019 several times after critics claimed they caused increased crime.

Proponents of overhauling bail say an affluent defendant can secure their pretrial release while a poor defendant charged with the same crime must sit in jail until they plead guilty or go to trial. And the demographic evidence shows that the burdens and inequities of the system fall more heavily on Black defendants.

In a January 2022 report, the US Commission on Civil Rights said, “Persons with low-income and persons of color have been disparately impacted by being unable to pay bail and thus staying in jail.” In addition, the report said, “longstanding research suggests that people of color may also have higher bond amounts imposed and are more likely to be perceived as dangerous during bail hearings.”

Risk Assessment

Observers praised New Jersey’s approach in 2017, which involved input from law enforcement, that reduces the use of cash bail by using data-based risk assessment.

“New Jersey is looked at as the gold standard, because they essentially dismantled the cash bail system while maintaining public safety,” Lisel Petis, former prosecutor and resident senior fellow with center-right think tank R Street Institute, told Bloomberg Law.

Under the New Jersey system, the decision whether to detain is based on nine risk factors to assess the risk of new criminal activity, including new violent criminal activity, and failure to appear pending case disposition.

Like New Jersey, both the Illinois and the proposed Michigan schemes include risk-based assessment.

“I’m cautiously optimistic” about the Illinois system, Petis said. “There are now state-wide pretrial services and more thorough hearings to decide whether to detain or release based on flight risk, based on individual findings, which will help address safety concerns,” Petis said. “If Illinois succeeds, I think others will follow,” she said.

“Illinois is being watched,” Deputy Director of Policy for the Bail Project Nicole Zayas Manzano told Bloomberg Law. “A lot depends on how Illinois implements the changes,” Manzano said.

“It will require a lot of work with stakeholders and policymakers,” Manzano said. “We will see whether there’s an increase in electronic monitoring versus pretrial detention,” she said. “Then we will see whether states will follow suit.”

The proposed Michigan legislation would set up a three-tiered system. The first tier includes those charged with the most serious offenses, who would be eligible for preventive detention. The middle tier would include those charged with sex offenses, violent offenses, and felonies that carry a sentence of five or more years, who would be eligible for monetary conditions and additional safety measures. The third tier would include people charged with low-level, low-risk offenses, who would be presumptively released without monetary conditions.

Manzano said she is hopeful that the Michigan package will be passed by the end of 2024.

But Michigan Rep. Graham Filler (R) said the “bills in Michigan have not found support with judges.” Filler said their “belief is that these bills would tie their hands from keeping clearly dangerous individuals who are committing multiple crimes from keeping those individuals in jail.”

Michigan State Sen. Ruth Johnson (R) said, “There’s definitely a balance.”

“The last thing I want to do is tie a judge’s hands when they feel someone is a danger to others,” Johnson said. “The first priority needs to be public safety. But for low-level or non-violent offenders it is not fair or productive to hold them in jail simply because they don’t have the financial resources to make bail.”

Johnson said, “Any interaction with the criminal justice system is already likely to be costly and now they can’t go to work, they can’t take their kid to school, I think there is some bipartisan area of agreement here where we can work together.”

Crime Increase?

The impact of bail changes has been hotly contested, with opponents and proponents debating whether the measures lead to increased crime.

In February 2020, University of Utah Law Prof. Paul Cassell and University of Utah Economics Prof. Richard Fowles issued a paper asserting that bail reform measures in Cook County, Ill., courts increased crimes by defendants released pretrial. But a January 2022 study by University of Virginia Law Prof. Megan Stevenson and University of Pennsylvania criminology Prof. Aurelie Ouss found “no evidence that financial collateral has a deterrent effect on failure to appear or pretrial crime.”

“There’s a narrative that an increase in crime is caused by bail reform,” Manzano said. “But it’s more likely an economic consequence of Covid,” she said.

“We have seen an increase in crime in places where there was no bail reform and vice versa,” Manzano said. “We need to deal with the real reasons for an increase in crime and not assume bail reform is the cause.”

Observers say that the Illinois changes may still face pushback, as seen in other states. But unlike California and Alaska, Illinois doesn’t have commercial bail bondsmen, who opposed changes to the bail system in California and other states. And the state also has a Democratic super-majority supportive of changing the bail system.

One Illinois state legislator who opposed the changes, Rep. Patrick Windhorst (R), told Bloomberg Law he remains “concerned for the future of public safety in Illinois.”

“I am committed to working with our law enforcement community to understand the impacts on our system of justice as the weeks and months unfold,” Windhorst said. “I stand ready to work with our law enforcement partners and with my fellow legislators to take legislative action to fix issues that are certain to develop as a result of this policy change.”

The bail changes in Illinois were cleared to take effect when the state’s high court on July 18 upended a trial court’s ruling that the measures violate the state Constitution. The trial court ignored the plain language of the Illinois Constitution, incorrectly assumed that abolishing monetary bail undermines the state’s interest, and “misapprehended what the drafters of the bail clause actually did,” Chief Justice Mary Jane Theis said, writing for the majority.

The Delaware Supreme Court in August ruled that the state’s Constitution allows courts “to attach unaffordable financial conditions to a dangerous defendant’s” release on bond given certain procedural protections. This “flaw” isn’t “constitutional in magnitude,” and it’s up to the democratic process to decide whether it’s tolerable, the court said.

The Delaware ruling stands in contrast to the California Supreme Court’s 2021 ruling that judges must consider an individual’s ability to pay when setting the amount required to release someone from jail before trial. State trial courts also must consider whether restrictions less than pretrial detention are enough to protect the public and victim, the justices held.