Janay spent nearly a month in jail this spring, because she was unable to pay the $2,500 bail that would have allowed her to be free while awaiting trial. When she was eventually released, Janay found her house in total disarray. “It was vandalized,” she said. “It was not what I left it to be.” Plus, the power had been shut off by her electricity provider, both of her cars had been impounded by police, and her landlord told her he was considering eviction.
Michigan Radio is withholding Janay’s last name to prevent further consequences from her arrest. Evidence cleared her of the felony charge that landed her in jail, and it was eventually dropped. But by then, she and her three children — aged 6, 3, and four months old at the time of her arrest — had already suffered significant consequences.
“Just speaking with [my children] over a jail phone was very frustrating to me,” she recalled. “Them asking me questions like, ‘Mommy, when are you coming home?’ And I couldn’t give them a straight answer because I didn’t know.”
Situations like the one Janay found herself in are expected to happen less frequently in Detroit come November, due to a legal agreement intended to limit how often and how high judges set cash bail for defendants in the 36th District Court.
Cash bail is meant to be a guarantee that a defendant will appear in court, but for many in Detroit, a city where one-third of people live in poverty, the dollar amounts leveled by judges have instead, all too often guaranteed that people facing serious charges would spend time in pretrial incarceration.
Janay was able to get out of jail only after she saw a flier for a criminal justice advocacy organization that offered to bail out people like her with relatively low cash bail amounts and no prior criminal criminal records. Michigan Liberation bailed Janay and several other women out of jail as part of its Mother’s Day Black Mama bailout campaign. She had spent 23 days in pretrial incarceration before she was back at home with her children.
Less than a minute
Bail is not meant to be “excessive” in Michigan. State law calls for judges to consider several factors before imposing cash bail, including the seriousness of a charge against a defendant, the danger posed by their release, and the likelihood that they’ll appear in court.
But judges in Detroit were requiring bail in nearly all arraignments — 85% — even when charges were relatively minor: failing to appear in court over unpaid traffic tickets and staying in a park after dark, according to analysis by the ACLU of Michigan. The organization observed Detroit’s 36th District Court for a week and found that judges spent, on average, less than four minutes per arraignment, with less than one minute spent deliberating the cash bail amount to impose.
In April 2019, the ACLU joined other legal and civil rights groups to bring a class action lawsuit against Detroit’s 36th District Court over its bail practices. Several named plaintiffs had suffered significant harm from spending time in jail due to their inability to pay the cash bail imposed on them.
“When people go to jail because a court is forcing them to purchase their freedom, they lose their jobs, they lose their homes, sometimes they lose custody of their children,” said Phil Mayor, an attorney with the ACLU.
A national trend
Jurisdictions across the country have started to reconsider the use of cash bail. Cities like Washington, D.C., Philadelphia, and New York have curtailed the use of cash bail, and Illinois became the first state to eliminate its use entirely last year. In Michigan, Washtenaw County prosecutors announced that they would no longer seek bail in January.
The changes to bail policies follow mounting evidence that allowing defendants to be free before their trials does not lead to increased crime.
“We’re actually safer,” said the ACLU’s Mayor, “when people are out fighting their cases without having to pay than we are when we devastate the economy of low-income families, and then wonder why, years later, they might be forced to commit crimes of economic necessity.”
“A light shone on us”
Judges in the 36th District decided to work with the organizations that brought the lawsuit, instead of fighting the allegations.
“There was a light shone on us,” said Judge Larry Williams, who was part of a team that negotiated an agreement to resolve the lawsuit. “I think early on we decided, you know, we want to be a part of making this better.”
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Judges will still have discretion to impose bail if they decide a defendant presents an otherwise unmanageable flight risk or poses a danger to the public. The agreement, which will last up to five years depending on whether specific targets for defendants’ release are met, will also require judges to consider non-monetary options like probation or protective orders before cash bail, and to make on-the-record deliberations about defendants’ ability to pay in all cases.
“We don’t want to be in that situation where we thought something was affordable, and then, weeks later, when the hearing happens, somebody’s still in custody,” Williams said. “And that’s … something that we’re never trying to happen again.”
Those who remain in jail will be entitled to “redetermination” hearings to reconsider the terms of their release within a few days of their arraignment.
“Mommy, don’t go.”
Janay wishes she had been given a second chance during her time in jail, especially because of the painful separation she experienced from her three children. Her middle child, a daughter, climbed into her lap and giggled, although her eyes were heavy with sleep.
“Ever since I got back home, she’s been like this,” Janay said. Her daughter now gets worried or cries whenever Janay isn’t in her line of sight. But Janay has also felt separation anxiety since the ordeal. “It’s on both ends.”
When Janay asked her daughter what she missed most about her while she was away, the girl’s face lit up as she began to count. “Counting?” Janay asked, surprised. “Yeah,” he daughter said.
Unable to find in-person work with both of her cars impounded, Janay has been taken a job as a phone canvasser for Michigan Liberation, the organization that bailed her out. She hopes the changes to bail in Detroit mean fewer people will go through what she did.
“It makes me feel amazing because I know that it’s a possibility that people won’t … experience, you know, the negligence that we experienced,” she said as she pulled her daughter from her lap.
When Janay walked me out, the girl, now four years old, rushed to the door and began to sob. “Mommy,” she called out. “Don’t go.”