ST. JOSEPH — Being poor shouldn’t land you in jail.
That’s the belief of a group of legal advocates for low-income Michigan residents, including Berrien County’s chief public defender, Christopher Renna.
“Too often, the poor are trapped in a downward spiral triggered solely by poverty,” the State Planning Body stated in a document presented to the Michigan Joint Task Force on Jail and Pretrial Incarceration, which is looking at ways to reduce the burgeoning number of people in county jails.
Pretrial incarceration is supposed to be imposed depending on whether a person is a flight risk or a danger to the community. But too often who stays and who walks is decided by who has deeper pockets, according to Renna.
“We let out dangerous people every day, if they can afford it,” Renna said.
While Michigan’s crime rate is at a 50-year low, its jail population has tripled over the last 35 years, points out the organization of leaders in the judiciary, State Bar Association, indigent criminal defense attorneys, and others.
“Over half of those individuals are awaiting trial and remain in jail not because they are a flight risk but simply because they are too poor to afford bail,” the report charged.
The State Planning Body supports the elimination of cash bail and recommends pretrial incarceration only for those who “are an extreme flight risk or pose an immediate threat of violent criminal activity.”
The State Planning Board offered a scenario in which a poor person gets caught for a low-level offense, and finds it difficult to extricate themselves from the justice system.
A person must drive to work, but maybe can’t afford insurance and is pulled over and arrested, they posited. That person is kept in jail because they cannot afford to post bond, is unable to show up for work, and is fired. The loss of income can trigger other problems, such as losing housing or the involvement of Child Protective Services.
In an effort to break this cycle, the State Planning Board formed a subcommittee with representatives from the Michigan State Bar Foundation, State Bar of Michigan, 15th District Court, Michigan Indigent Defense Commission, ACLU of Michigan, along with the Berrien County public defender’s office, which is among the first and most advanced in the state.
Renna testified before the state task force in Lansing on Nov. 19, reminding the panel of the consequences of incarceration for minor offenses on poor residents.
He also emphasized the State Planning Board’s recommendation for consistency in handling pretrial detention, including eliminating different standards for imposing cash bond and pretrial release conditions.
“Although existing court rules already provide for a presumption of release without cash bail, the rules are followed unevenly, to say the least, from jurisdiction to jurisdiction,” noted the memo to the jail task force.
The State Planning Board also calls for the elimination of racial disparities in pretrial detention, in which black, Hispanic and Native American defendants are more likely to be held in jail before trial than white defendants.
Most people – between 75 and 80 percent – return to court without being re-arrested, the paper states. Studies show that pretrial incarceration increases recidivism, and it also significantly increases the average length of jail sentences.
Other forms of release, such as GPS monitoring or drug testing, should only be used in extreme circumstances, the board concludes. Such methods are disruptive to the lives of low-income defendants and make it difficult “if not impossible” to maintain employment.
Tether monitoring, which defendants now pay to use, should be provided to low-income residents at no cost, the board insists. Conditions for release, that do no include cash bail, should not “amount to costly house arrest,” the document notes.
In November, Berrien County had 46 defendants who were released by paying a fee to be monitored by a tether device that tracks their location, and in some cases whether they have consumed alcohol. Of those, 40 were released on bond.
“It’s a horrible reality that the only thing between you and freedom is if you can pay the tether bill,” Renna said.
Michigan county courts, including Berrien, use a public safety risk assessment that assigns points to determine if a person is a flight risk or a danger. But even these should be used with caution, the State Planning Board says.
National studies show that these risk assessments don’t reduce incarceration rates, because courts fail to follow their recommendations. They also have been shown to worsen racial disparities by misclassifying black defendants as a higher risk than white or Hispanic defendants.
As reforms are implemented, education of judges and court staff is “critical,” the advocates say, to avoid the pitfalls spelled out.
“Judges must be provided guidance in setting a cash bond where one is appropriate and, when cash bail is ordered, it must be set in light of a defendant’s ability to pay,” the board concludes.
Berrien takes the lead
“The future is very bright” for the Berrien County court system, as reforms are instituted, Renna said.
The county has had success reducing its jail population through drug and mental health courts that offer treatment as an alternative to incarceration.
Its public defender’s office, established in 2017 as part of a statewide mandate from the Michigan Indigent Defense Commission, is recognized as a leader in providing counsel to those who can’t afford to hire an attorney.
Berrien County has been using a pretrial risk assessment document that provides a guide for determining bail for about a year and a half. Renna said the county’s attorneys do a good job of getting information to judges, to assist them in deciding bail requirements.
Beginning in January, the Berrien public defender’s office will bring on five new attorneys to handle misdemeanor cases, which make up the bulk of cases that come to court.
This will allow his office to give more attention to these types of cases, providing better results for the clients and the community, Renna said.
The new hires are made possible through state funding, which will be $3.1 million for Berrien County this year. The county’s share for indigent defense will be around $300,000, Renna said.
He predicted that the governor’s task force will recommend that some misdemeanor offenses, such as driving on a suspended license, become civil infractions, rather than criminal charges, helping to reduce the jail population.
Contact: jmatuszak@TheHP.com, 932-0360, Twitter: @HPMatuszak