ACLU Sues to End Cash Bail

By Twyla Carter and Philip Mayor

Imagine being poor and being arrested by the police in Detroit.  You are supposed to be innocent until proven guilty, but with no money, you will remain in jail for up to 3 days before you can see a judge called a magistrate.

That’s just the beginning of the harm visited on one of our clients in the 36th District Court in Detroit, Davontae Ross. He spent days behind bars because he couldn’t afford to pay $200 of bail relating to a 5-year-old ticket for allegedly staying in a park after dark. He missed a job interview and a critical meeting with a government caseworker. His life has been turned upside down.

This is not isolated to one client, or one court. Our named Plaintiffs are all Black—as is almost everyone who can’t afford bail in Detroit—and they’ve all spent days in jail simply because they can’t afford bail. When it comes to the criminal legal system in the State of Michigan, the problem is as pervasive as it is perverse.

The system requires explaining, because it is complex. It is a microcosm of the maze of the criminal legal system that traps people of color every day in our nation. In Michigan, even when you do get to meet the Magistrate, it’s not in person. She appears via a video connection from a courtroom downtown. The guards tell you not to ask any questions, and then you step in front of the camera. The magistrate is not interested in you or your situation.  She talks so fast that you cannot even understand your case number, what you are charged with, or the penalty you face.  Then she sets a court date. If you are lucky, you hear the court date, but she’s talking so fast you can’t be sure.  She asks if you understand, but you are scared about making her angry (you’ve heard her snap at other people who tried to say something), so you say yes. Then she reads you your rights and asks if you understand.  She said something about your having a right to a lawyer, but no one has provided a lawyer for you or any of the other dozens of people in jail with you who are being arraigned by video.

Then the Magistrate sets bail. She doesn’t ask you any questions, and she doesn’t ask you how much you can afford. In fact, she doesn’t ask you anything at all.  She just tells you what your bail amount is, using dense legal jargon. If you don’t understand and ask how much you actually have to pay, she tells you that the guard will explain it. Then she commands you to step away from the camera. That’s it: you’ve been arraigned in all of two minutes.

The judge didn’t ask you how much bail you could afford, so the bail is based on the allegations against you—allegations that have never been proven in a court of law. The guy next to you who got the same bail for the same alleged crime can afford his bail. So he’ll be able to leave jail that day. He’ll be able to meet with a lawyer, talk to witnesses, and go about his life while he prepares to defend his case. But you are too poor to pay that same bail. So you’ll be stuck in jail for days, weeks, or months while awaiting trial or a plea bargain. After just a couple days, you’ll probably lose your job. In a few more, you may miss rent and be evicted. You may miss medical appointments, school, and be unable to care for your kids. If you are lucky, there’s a family member who can upend their own life to care for those kids, but maybe not.

Another of our clients, Timothy Lucas, is 65 years old and suffers from epilepsy, hypertension, and asthma. He was accused of a minor (misdemeanor) assault, and spent over a week in jail because he could not afford the $350 bail that was imposed by another Magistrate who never asked how much he could afford. If the Magistrate had asked, she might have learned how ill our client was, or that his only source of income is a monthly $800 disability check and that he lives in a rooming house with thirteen other individuals and families. Our other clients have lost jobs, risk losing their children, and are having their educations ruined by their time in jail—to say nothing of the devastation their family members, who are distraught because they are too poor to help, are experiencing.

That’s why we, along with our co-lead counsel at Covington & Burling, LLP, filed a class action lawsuit against the Chief Judge of the 36th Court and the Magistrates who automatically and arbitrarily impose such devastating bail. Everyone being arraigned is innocent until proven guilty, and the court’s cavalier approach to “justice” violates thousands of people’s constitutional rights to due process, equal protection, and their right to an attorney. We will not permit these injustices to stand.

Twyla Carter is Senior Staff Attorney with ACLU Criminal Law Reform Project & Philip Mayor is Senior Staff Attorney with ACLU of Michigan

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