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Lawsuit seeks to end "unnecessary, unconstitutional, and costly" cash bail in Detroit


Detroit’s 36th District Court finds itself in an unusual position: as the defendant in a new lawsuit.

The ACLU has sued the court over its cash bail practices. The federal class action lawsuit contends the court keeps too many people behind bars simply because they’re poor.

It comes as a larger, nationwide movement to end cash bail gains steam. But the lawsuit details how the cash bail process plays out specifically in the 36th District and in Detroit, the nation’s poorest big city. And it brings up additional questions about how the court is handling efforts to provide better representation for its indigent defendants.

“I knew I was raised better than that”

Two years ago, when he was seventeen, Elliot Montgomery got into serious trouble with the law.

“Trying to prove myself to others. Just following the wrong crowd, basically,” says Montgomery, now 19. “And I knew, like, I was raised better than that.”

He pleaded guilty to receiving stolen property and larceny from a motor vehicle. He was sentenced to a year in the Wayne County Jail.

Since he got out, Montgomery has been trying to put his life back together. He says he basically just goes to school for his GED and works.

“I currently do construction right now with my cousin,” he said. “It’s like under the table jobs though. But I’m good with my hands.”

But Montgomery ended up in jail again last month on an assault and battery charge. It’s an old charge, from back in 2018. He says it stems from a fight that happened while he was in jail.

Montgomery says this time, he’s innocent. But bail was set at $150, and he didn’t have it.

Credit Sarah Cwiek / Michigan Radio
Michigan Radio
Elliot Montgomery

Prosecutors offered him another plea deal.

“They tried to come to me with a plea. And it’s like, why would I take a plea if I didn’t do it?” Montgomery said.

The new lawsuit argues that this type of situation should never happen. It contends that almost no one who hasn’t been convicted of a crime should be locked up-- especially if the only reason is that they can’t afford bail.

The national ACLU, ACLU of Michigan and law firm Covington & Burling LLP and others filed the lawsuit in Detroit federal court this past weekend. It calls cash bail unconstitutional, and it takes direct aim at 36th District Court.

36th District is the state’s busiest court, processing about 500,000 cases a year. It handles everything from misdemeanor traffic tickets to more serious misdemeanors, and the pre-trial process for felony cases.

It’s that pre-trial process that this lawsuit is concerned with—specifically, with the arraignment process. That’s when defendants first appear before a magistrate and have a bond hearing.

The lawsuit maintains that in around 85% of those hearings, 36th District magistrates set cash bail conditions for release.

“Poor people in Detroit are routinely jailed because they cannot afford bail. Meanwhile, similarly situated individuals who can afford bail are routinely released,” according to the legal complaint. “This unnecessary, unconstitutional, and costly discrimination against indigent people accused of crimes in Detroit is the result of the 36th District Court’s policy and practice of making no inquiry whatsoever into an arrestee’s ability to pay before imposing bail requirements."

“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,” says Dan Korobkin, deputy legal director of the ACLU of Michigan.

Korobkin says that creates a two-tiered justice system, where people with means go free while the poor stay behind bars. Data suggestthat around 60% of people in the Wayne County Jail at any given time are pre-trial defendants.

“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,” Korobkin said.

Inability to make bail leaves defendants with some “pretty awful choices”

On a recent afternoon in Magistrate Dawn White’s 36th District courtroom, nearly all the arraignments took place via videoconference. The defendants were at the Detroit Detention Center. As a guard called each up for their arraignment, they stood in front of the camera as White read the charges and penalties to their faces on the TV screen.

After reading the charges, White recited this to each defendant:

“Did you hear the charge and the penalty that you may receive? The court will enter a not guilty plea on your behalf. You have a pre-trial date of [date] at [time] in 36th District court in front of [judge’s name]. You have a right to remain silent, anything you say can and will be used against you in a court of law. You have a right to an attorney, if you cannot afford an attorney one will be provided for you at public expense. Do you understand your rights?”

The same language was repeated in every hearing, for dozens of cases. There no was inquiry about any defendant’s ability to pay. Only one had a lawyer present.

One case was a domestic violence charge. Magistrate White noted that it was a second alleged offense with the mother of the defendant’s child.

“Court is going to set bond in the amount of 75 hundred dollars, 10%,” White told the defendant, effectively setting bail at $750. “Sir, no contact, do you understand?”

This defendant was released two days later on a bail bond. But not all defendants can afford the fees a bondsman charges. And sometimes bail bonds companies won’t take cases where the bail amount is too small to turn a profit.

According to the ACLU lawsuit, 36th District judges give cash bail conditions to about 85% of defendants.

Amanda Alexander says these pieces add up to a big problem. She’s with the non-profit Detroit Justice Center. That group works with the Detroit chapter of the Bail Project to pay bail for defendants who otherwise can’t afford it.

That happens so often, that people are pleading to things they absolutely shouldn’t be. Because that means they can go home. --Amanda Alexander, Executive Director, Detroit Justice Center

Alexander says that after just a couple days in jail, people’s lives can begin to fall apart. They can lose their jobs, their housing, even their kids. She remembers one client, a father of four, who couldn’t afford $500 bail. He lost his job while he was in jail. And the children’s mother was forced to quit her job because she couldn’t find child care.

“So this is a household that over the course of a week, went from two incomes to no income over this $500,” Alexander said.

Another consequence of pre-trial detention: Alexander says people behind bars are more likely to take plea deals, regardless of guilt.

“That happens so often, that people are pleading to things they absolutely shouldn’t be,” she said. “Because that means they can go home.”

Other courts move in a different direction

The spiraling repercussions of the cash bail system are just one reason there’s a growing national movement to end it. Few people will openly defend the status quo anymore. Bills proposed in the Michigan legislature last month would overhaul the cash bail system statewide.

“It’s safe to say that people working in the system do not think it’s ok that 50% of our jail beds are for people who have not been convicted of a crime,” said Judge Tom Boyd, chief judge of 55th District Court in Ingham County.

In Boyd’s court, all defendants now have lawyers at the time of arraignment. He thinks that’s actually made the process smoother. And it’s one of four newly-adopted state court standards devised by the Michigan Indigent Defense Commission.

Boyd says that’s the direction most Michigan courts are moving in. But not 36th District.

“The 36th District Court and the city of Detroit have, for some reason which is very difficult for me to understand, refused to make this modification,” Boyd said.

In February, chief judge Nancy Blount wrote a letter to the Michigan Indigent Defense Commission, turning down $1.4 million in state grant money for indigent defense counsel. She wrote that “36th District has been meeting and exceeding the constitutional requirements to provide counsel to indigent defendants.”

That’s exactly what this lawsuit claims the court is not doing. One of its claims is that defendants are denied their constitutional right to counsel because most don’t have lawyers at their arraignments.

Blount was not immediately available for comment Monday on the lawsuit or the letter. 

Boyd does think there’s a place for cash bail under some circumstances, though. He said he sometimes holds people with addiction problems in jail until they can get a bed in a treatment facility. He remembers one woman who recently turned herself into the court on a snow day, because she was so desperate to get some help.

36th District Court Chief Judge Nancy Blount's letter to the Michigan Indigent Defense Commission.

“Technically, she was held in jail because she couldn’t post a bond,” Boyd said. “But is what was the only thing going on? No. These are human beings, and life is complicated.”

“It’s easy to say cash bail keeps poor people in jail. In reality, cash bail might keep people in jail because they need to be in jail for their own safety or for the safety of others.”

“No good to fight a case in jail”

The ACLU’s Dan Korobkin says that simple things like text message reminders have proven effective at getting people back to court.

“It costs $165 a night to lock someone up in the county jail,” Korobkin said. “Compare that to how much it costs to create good pre-trial services program.”

The lawsuit asks for a complete overhaul of 36th District’s cash bail system.

Meanwhile, Elliot Montgomery got lucky. He got bailed out after three days by the Detroit Bail Project, So when his current case goes to court, he can show he’s still working, going to school — on the right path for now.

“Like I’m trying. I’m not the same person I was when I was 17, basically. That’s what I’m trying to prove now,” Montgomery said.

But he can only do that because he got out: “It’s not good to fight no case in jail anyway.”

Sarah Cwiek joined Michigan Public in October 2009. As our Detroit reporter, she is helping us expand our coverage of the economy, politics, and culture in and around the city of Detroit.
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