Pile of legal texts surrounded by monkeys and primates

Over the course of human existence, evolution is defined as “the change in the characteristics of a species over several generations and relies on the process of natural selection.” We apply this notion to not just humans, but animals, technology, law, religion, and how societies operate around the world. The assumption is that as evolution proceeds, it’s mostly for the common good. But if that’s the case, how do we explain what’s happening with America’s legal system and cash bonds?

Pandemics, Unemployment, Cash Bail – Oh My!

As a country, America’s in some deep doo-doo right now. We’re reeling from the global COVID-19 pandemic with over 120,000 deaths and 2.3 million confirmed cases. The economy is in shambles with a double-digit unemployment rate. Social unrest is skyrocketing as protestors take to the streets demanding an end to racism and police brutality.

And then we have another hot-potato topic gaining traction – what to do about America’s cash bail bonding system? It’s been a fixture of the judicial landscape almost since the nation’s founding, but, like a fish flopping around the bottom of a charter boat in heavy heat, it’s beginning to decompose and smell to high heaven. But we suspect it’s not just the fish creating the odor.

Proponents of cash bail reform are like a broken record, arguing against its many perceived evils: wealth bias, unnecessary incarceration, socio-economic effects, lack of attorney access, juror bias, and many others. A favorite target of bail bonds reform advocates is the cash bail industry itself. These protestors, of course, ignore the fact their reforms could wreak havoc with the more than 26,000 people in America employed in the cash bond industry, which has a comparatively paltry market size of $3 billion.

Instead of working toward legitimate reform of the system, lawmakers in New York, New Jersey, and elsewhere pander to the lowest common denominator – emotions, getting voters fired up about poor defendants and over-crowded jails.

Alternatives to Cash Bail?

If you’re a student of legal history, you may know that the cash bond system has existed in one form or another for hundreds of years. In pre-independence America – of course, leaving out Jefferson County, Arapahoe County, Denver County and all others in Colorado because the state wasn’t founded until 1876 – cash bonds had little judicial oversight. But the system has evolved, offering a way for a bail bondsman to support his family and community honorably. It has some flaws that definitely need to be worked out, but the big push nationally to completely do away with cash bond as a condition of even temporary freedom seems misguided.

Some scholars, like Kyle Rohrer of the University of Oregon School of Law, argue that states should employ bail reform to create a more efficient prison system, even though he recognizes the difficulties, such as judicial officers not wanting to take the risk of releasing a defendant pre-trial who may slip back into crime. This means few judiciary officers are willing to support a reform movement. But there are potential alternatives to cash bail, including Pre-trial supervision and Compulsory Detention.

  • Pretrial supervision, where the defendant gets released but with restrictions like having to wear electronic monitoring or be subjected to house arrest.
  • Compulsory detention, such as a case where cash bail is unlawful, and has sometimes resulted in more defendants being held absent an overture of release by posting bail (if it’s an affordable offer to begin with). This is alternative is set aside for major crimes, which would usually result in bail that’s too high for a defendant to pay unless they had significant financial resources.

The other alternative, implemented in some states and now regarded as rife with problems, is an end to the cash bail system altogether.

What’s Happening in Michigan?

Michigan Gov. Gretchen Whitmer, no stranger to controversy thanks to her severe COVID-19 restrictions, has convened the Mich​igan Joint Task Force on Jail and Pretrial Incarceration to look into ways of reforming her state’s judicial system top-to-bottom. If you work in the bail bonding industry in Michigan, maybe you were part of a roundtable of experts who discussed the issue of cash bond between July and November 2019.

Under Michigan law, cash bail is allowed for any criminal act but varies how it’s implemented per local jurisdictions. The task force is recommending bringing the state in-line with reforms in New Jersey, New Mexico and Washington, D.C., where cash bail has either been eliminated or its use significantly reduced.

The proposed change permits cash bail for cases where the defendant is a flight risk or is a threat to themselves or others, or has been charged with a violent crime, a sex offense, or a severe nonviolent crime. The court would have leeway to decide if other release conditions can satisfactorily address the risk.

Here’s the hammer blow for any bail bondsman paying attention. “There would be a presumption that all defendants should be released on personal recognizance or unsecured bond, which doesn't require a payment upfront. That's unless the court determines the person poses a risk. Those defendants who don't meet the threshold for cash bail would be afforded the "least restrictive" non-monetary condition of release, according to the task force report.”

As co-chair of the task force, Michigan Supreme Court Chief Justice Bridget Mary McCormack, said Michigan’s constitution would require an amendment to do away with cash bail. "I think that's something that folks expect people to be talking about as things go forward," she said.