Editor’s Note: Dan Korobkin is the deputy legal director for the American Civil Liberties Union of Michigan. In this column written for The PuLSE Institute, Korobkin spotlights the issue of poverty as central to the lawsuit that the ACLU of Michigan, National ACLU and the law firm Covington & Burling LLP filed against Detroit’s 36th District Court over its cash bail system. For submission inquiries contact the Institute’s editor-in-chief Bankole Thompson at firstname.lastname@example.org
By Dan Korobkin
When a person is charged with a crime, they go before a judge or magistrate who sets their bail. Originally, bail was intended to ensure the person returns to court to face the charges against them. Instead, the cash bail system has morphed into mass incarceration of the poor and people of color. A prime example of a broken cash bail system is Detroit’s 36th District Court, where mostly poor Black people are locked up because they cannot afford bail – while people facing the same charges, but can pay bail, go free. This is unconstitutional and it’s why the ACLU of Michigan, National ACLU, and law firm Covington & Burling LLP have sued 36th District Court.
For months, we observed hundreds of arraignments in Detroit, and what we witnessed had nothing to do with justice. Take the case of Davontae Ross, who spent days behind bars because he couldn’t afford to pay $200 for bail relating to a 5-year-old ticket for allegedly staying in a park after dark. Ross, who is also a plaintiff in our case, missed a job interview and a critical meeting with a government caseworker all over $200.
Another plaintiff in our case, Starmanie Jackson, could not afford to pay $700 in bail. Ms. Jackson, who is a single mom and supports two children, missed the first day of her new job as a Certified Nursing Assistant.
This unjust system churns thousands of people through court each year. The vast majority of bail arraignments last just 2 to 4 minutes, with the bail-setting phase lasting less than a minute. The entire thing takes place via video teleconference between the courtroom and a detention center, where arrested people are told to stand silent in front of a camera and then quickly whisked back to their cells. Michigan’s court rules, as written, contemplate the use of cash bail only in extraordinary circumstances, such as when the person is a flight risk or a danger to the community. Instead, 85% of defendants arraigned in Detroit while under arrest are required to pay cash bail in order to be released.
To make matters worse, 95% of the defendants in custody have no attorney, a clear violation of the right to counsel. Research is clear that with each day in jail, the chance for a fair trial diminishes as it is tougher to mount a defense when behind bars. Pre-trial detention is the single greatest predictor of a conviction and a sentence to jail or prison time. It is also more likely that the person will plead guilty even when innocent just to go home. Also, just three days behind bars puts a person at risk of losing their job, home and custody of their children.
For many people, paying bail is simply not possible. The federal reserve recently reported that 40 percent of adults in the U.S. are unable to afford a $400 emergency expense. In Detroit, the number of people living below the poverty line is 34 percent, with the median household income less than half of the median nationwide. Detroit’s broken bail system is wreaking devastating consequences in a city where the population is nearly 80% Black, further impoverishing people who are already facing extraordinary challenges and enduring severe racial disparities in our criminal legal system.
And this is not just a Detroit problem. The broken bail system is a statewide and national crisis that has resulted in mass incarceration of the poor and people of color. Our lawsuit is part of our Smart Justice campaign to end racism in the criminal legal system and cut incarceration in half. That is why the ACLU is challenging broken bail systems like Detroit’s all over the country. Everyone deserves a fair justice system. We are here to see that they get one.
Dan Korobkin litigates on a broad range of civil liberties issues in Michigan, including free speech, juvenile justice, poverty, drug law reform, police misconduct, and prisoners’ rights. As deputy legal director, he helps oversee the ACLU’s legal program throughout the state. He has a law degree from Yale University Law School and a bachelor’s degree from Swarthmore College.