ACLU Slams Detroit Bail System as Unfair to Poor

(CN) – The Michigan chapter of the American Civil Liberties Union filed a federal class action Sunday against six judges and the sheriff in Detroit, claiming the state’s largest district court unconstitutionally ignores a defendant’s ability to pay bail before they are detained.

The 66-page complaint filed by ACLU lawyers led by Philip Mayor, in addition to attorneys with the nationwide firm Covington & Burling, claims that “poor people in Detroit are routinely jailed because they cannot afford bail,” which they condemn as “unnecessary, unconstitutional, and costly discrimination against indigent people accused of crimes.”

Judges named as defendants in the case include Chief Judge Nancy Blount of the 36th District Court and five magistrates. The complaint also lists Wayne County Sheriff Benny Napoleon as a defendant.

The class action was filed on behalf of seven people arrested for crimes in Detroit and brought before the 36th District Court who cannot afford to pay the cash bails set in their cases and cannot afford counsel, caught in what the lawsuit refers to as the district court’s “wealth-based post-arrest detention scheme.”

Bail is first set at an arrestee’s arraignment. In the majority of cases the court imposes a secured cash bail, but it is “policy and practice not to inform the arrestee that her ability to pay is relevant to the bail determination, let alone to accept evidence or make findings relating to the arrestee’s ability to pay,” according to the complaint.

If an arrestee can afford to pay their bail, they are released from custody upon payment. However, “arrestees who are otherwise identical, but are too poor to purchase their release, remain in jail because of their indigency,” the lawsuit states.

The ACLU stresses that these people, whom it claims number in the hundreds on any given night in Wayne County, remain in jail without a trial because they are too poor to pay their bail, running the risk of losing their jobs, homes, custody of their children or health care in the process. This causes many to “plead guilty before trial simply to minimize these harms,” the group says.

The complaint asserts that this system violates the equal protection and due process clauses of the U.S. Constitution, as well as the Sixth Amendment guarantee of the right to counsel.

In addition to certifying the proposed class, the ACLU seeks a declaratory judgment that the Detroit bail system violates constitutional rights and a permanent injunction prohibiting those violations.

The lead plaintiff in the case is 24-year-old Davontae Ross, who was arrested on April 11 outside of his apartment for failing to appear at a 2014 hearing over a misdemeanor ticket he had received that year for staying in a park after dark.

Ross was taken to the Detroit Detention Center, or DDC, on the day of his arrest. During his arraignment via videoconference the next morning, for which he did not have an attorney present, the magistrate judge allegedly set his bail at $200 without giving Ross any reason for why it was set at that amount or asking if he could afford it.

Ross also learned during his arraignment that he would have to stay in jail until his next court date two weeks later if he could not produce $200 for bail, according to the ACLU.

“Ross cannot afford to pay his bail and therefore remains in detention because of his five-year-old ticket,” the complaint states.

All of the plaintiffs in the lawsuit are black and range in age from 66-year-old Keith Wilson to 17-year-old Kushawn Moore, who is currently enrolled in 11th grade at a local high school.

The complaint notes that “the vast majority of arraignments are conducted by video teleconference between a 36th District courtroom in downtown Detroit and the DDC.”

A typical arrestee spends about two to four minutes on camera before judges that “often speak so rapidly that it is difficult, even for legally-sophisticated arrestees, to understand what is being said or to fully grasp much of what is happening,” according to the filing.

The complaint also says that Michigan court rules provide that secured cash bail conditions are only a matter of last resort after determining an arrestee’s potential threat to public safety and risk of flight such that most people arrested in the state have a legal liberty interest in being released pending trial without paying bail.

The 36th District Court’s arraignment policies and practices, however, do not make any such findings, according to the lawsuit.

The lawsuit offers that the court has other “more effective and less harmful” alternatives for arraignment and bail, the simplest of which is a personal bond. Under that measure, a person is released on the condition that they promise to pay money only if they fail to appear in court, which the suit claims “is equally effective at securing court appearances as secured bail.”

ACLU attorney Mayor said in a statement that “we have a broken bail system that punishes the poor.”

“When two people [are] charged with the same crime only the person who has money to pay their bail goes free. That is how 36th District Court operates,” he said. “There is no justice, there is no due process, and the poor are not appointed an attorney at the time bail is set. It is a broken system and it is wreaking havoc on Detroit’s poor. Detroiters deserve a fair and just system. We plan to make it happen.”

Representatives with the 36th District Court could not be immediately reached for comment Monday.

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