Originally published in The Appeal on January 4, 2021.
Eli Savit, the new chief prosecutor of Washtenaw County, Michigan (Ann Arbor), announced today that his office will no longer seek cash bail. His policy is the latest victory for advocates nationwide who are working to eliminate financial conditions for pretrial release. It comes on the heels of similar announcements in December by prosecutors in California and Virginia.
Savit, the county’s first new prosecutor in 28 years, ran on ending cash bail during his 2020 campaign. “One’s wealth must never play a role in their detention,” he told The Appeal: Political Report in August.
He is issuing a 20-page policy directive today that cites several reasons for opposing cash bail, including that debtors’ prisons are illegal in all 50 states and that cash bail stands at odds with the country’s legal principle of “presumption of innocence.”
“We’re very excited about Eli’s no cash bail policy,” said Twyla Carter, national policy director at The Bail Project. “We’d love to see other elected and appointed officials follow suit, and ultimately what we want to see is the decriminalization of poverty, mental health and addiction.”
According to a state task force report released last year, people detained pretrial have comprised roughly half of Michigan’s jail population in recent decades, often because they couldn’t afford their bail. And this sparks great disparities in incarceration. Preliminary analysis by the ACLU of Michigan found that Black people in Washtenaw County were 8.55 times more likely than white people to be incarcerated because they couldn’t pay bail.
These trends are not unique to Michigan. Nationwide Black and Latinx people are more likely to be incarcerated pretrial than whites charged with similar crimes, and nearly half a million legally innocent people sit in local jails every day, according to an analysis by the Prison Policy Initiative.
Researchers have found even brief periods in jail can hurt job and housing prospects, negatively impact children, and increase the odds that a defendant will plead guilty.
Prosecutors don’t set bail themselves, but their recommendations and motions weigh heavily on what judges do. Over the last few years, prosecutors elected on progressive platforms have reformed the use of cash bail, including Kim Gardner in St. Louis, Larry Krasner in Philadelphia, and Rachael Rollins in Boston, especially for lower-level offenses. Studies have found that jurisdictions that have experimented with bail reform have not seen an increase in crime.
“We know from our almost 16,000 bailouts, including in Washtenaw County, that when a defendant’s financial needs are met, when they have rides, text message reminders, child care, they show up to court,” said Asia Johnson, a communications associate at the Bail Project.
But only in January 2020, when Chesa Boudin became the district attorney of San Francisco, did a prosecutor announce that they would no longer request cash bail under any circumstance.
Others have since joined Boudin. Sarah George, the prosecutor of Vermont’s Chittenden County (Burlington), rolled out a similar policy in September, followed in early December by George Gascón, the newly elected DA of Los Angeles. A few weeks later, Steve Descano, the chief prosecutor of Virginia’s largest county (Fairfax County), announced that his office would also not request cash bail, formalizing a practice he established after taking office a year ago.
“Simply put, cash bail creates a two-tiered justice system—one for the rich and one for everyone else,” said Descano in his recent announcement.
Still, criminal justice reform advocates are wary of some limits of these prosecutorial reforms and of the continued reliance on pretrial detention, including for factors tied to money.
In Washtenaw County, according to Savit’s directive, prosecutors “can and will” still seek unsecured and surety bonds, which require payment from a defendant or third party if they fail to show up in court or otherwise break the conditions of their release.
Michigan law requires that in some cases judges must impose a cash or surety bond, though Savit’s directive also enables prosecutors to seek secured bonds more broadly. He told the Political Report this would be “very rare.” Surety bonds require a third-party to show they could afford to pay a bond if a defendant breaks release conditions, which hinders the ability of defendants with impoverished families to gain release. In some cases, surety bonds can even require a defendant to provide upfront payment to secure a third party’s intervention, but Savit said he is steering staff away from for-profit commercial bond agents. “It is not appropriate to require a defendant to secure a surety from a for-profit commercial actor,” his directive notes.
“I don’t want anybody to be put in a position where they have to pay upfront money—to the court or a third party—to secure their release,” Savit said. “If surety bonds are being used by courts to require such an upfront payment, we’ll re-evaluate and adjust as needed.”
Phil Mayor, a senior staff attorney with the ACLU of Michigan, says the “knee-jerk reaction” shouldn’t be a threat of financial penalty later in the legal process either. “We need to continue to be worried about the poverty trap that our criminal legal system easily devolves into,” he said, noting that defendants sometimes miss court hearings for fear of losing their jobs, or failing to find child care or reliable transportation.
Savit’s prosecutors can also choose to recommend the denial of pretrial release for some serious offenses, including murder, armed robbery, and repeat violent offenses. Advocates worry that asking prosecutors to decide who presents a safety risk before they have been afforded a trial poses problems, especially when those determinations are made with algorithmic tools that researchers say are faulty and racially biased. Savit, however, is avoiding the algorithmic tools, and told the Political Report he “consciously chose not to go down that route” because he “read the studies and knows those can often reinforce human and racial biases.”
Washtenaw prosecutors will still be permitted to request nonfinancial conditions for pretrial release like drug and alcohol testing, GPS tethers, and in serious instances, oversight by a “responsible” member of the community, though Savit will encourage his staff to articulate specific reasons for seeking such conditions.
In many jurisdictions the cost of GPS tethers is borne by the defendant, which can either lead to new forms of debt or an inability to leave jail altogether. Savit told the Political Report that while he sees a tether as “far preferable” to forcing someone to sit in jail, he does worry about the costs of the devices charged to the defendant.
“We need to put our heads together and work collaboratively, and some of this probably will take changes at the state level,” he said. Michigan’s legislature recently enacted some reforms spurred by the state task force on pretrial justice, but lawmakers have yet to tackle bail.
Mayor, who consulted on the new Washtenaw policy, told the Political Report that he had urged Savit to make any pretrial restrictions limited and rare. “I think his new written policy reflects that, but the proof is going to be in the implementation,” he said. “I have strong optimism that it is Eli’s intent to implement things in a way that’s designed for pretrial detention to be the dramatic exception and not the rule, but the test will be in the buy-in from line prosecutors and judges.”
There have been similar concerns in Fairfax, Virginia, where advocates note that an end to cash bail—while positive—will not inevitably lead to justice or even pretrial release.
“What’s been more prevalent in Fairfax is the over-conditioning of release—like requiring a probation officer, mandatory drug testing or mental health treatment,” said Bryan Kennedy, a public defender in the county. “The judges definitely over rely on it, and prosecutors ask for it more than they should.” Kennedy says Descano has also stayed fairly quiet when judges send people back to jail for missing court hearings due to poverty-related issues, and there have even been times when Descano appealed a circuit court’s decision to release somebody pretrial. (Descano told the Political Report that’s “not something that happens regularly.”)
In Virginia, unlike other states, there is also no constitutional right to bail, which means the list of eligible offenses for detention without bail includes everything from driving without a license to murder. Kennedy says he and his colleagues worry that, without addressing that on the state level, judges might just detain more people if cash bail is not an option.
Descano has called on the state legislature to reform the pretrial system and end cash bail, as did the association of progressive Virginia prosecutors in a letter released today.
Michigan organizers say they will keep an eye on how things unfold in Washtenaw as well.
Trische’ Duckworth, an organizer of anti-police brutality protests in Washtenaw County and the executive director of Survivors Speak, told the Political Report that she’s thrilled about Savit’s new cash bail policy and that she didn’t have to “twist Eli’s arm” to take it on. “He came in with a vision,” she said.
“But I tell him all the time, ‘I’m watching you,’” she added. “I say, ‘Don’t get your first protest.’”