Letter to the Editor . . .

Michigan Supreme Court is slow in addressing bond setting practices

Judge Avern Cohn
U.S. District Court, Eastern District of Michigan

The lengthy discussion in “Controversial algorithms help decide who stays in jail”?(Detroit Legal News, Feb. 20, 2019) repeats what is well known to those concerned with the excessiveness in the pretrial bond setting in many of our local district courts. Pretrial detention standards in Michigan are spelled out in MCR 6.106, Pretrial Release, and are more honored in the breach than in the observance.

The discussion also shows how slowly the Michigan Supreme Court is in addressing the bond setting practices of many district judges who appear to be more concerned with the nature of the criminal charge when considering pretrial release than the basic rule, i.e., whether or not the accused is a danger to the community or a flight risk if released on bond.

The Michigan Supreme Court has been slow in addressing the problem. The Court Administrator announced Feb. 14, 2019, a pilot program for assessing risk assessment to “help judges make bond decisions by using statistically based” predictors of pretrial risk. In announcing the pilot program, the Court Administrator did not call attention to the posting last summer of the Evaluation of Michigan Pretrial Risk Assessment Pilot Programs Request for Proposals. The background discussion of “bail setting” and “money setting” discusses very well how “money bail” can be imposed arbitrarily to disproportionately affect indigent defendants.

Lastly, any system of risk assessment used to evaluate the appropriateness of pretrial release which does not take into account the dollar amount of a bond is not going to do much to deal with the problem of “money bail.” As is well known in federal court, rarely, if ever, is a cash bond considered in determining pretrial release.