|Former Metro Detroit Judge: Too Many Jailed Needlessly Because They Lack an Attorney
December 6th, 2016, 9:16 AM
The author is a former 52nd District Court judge in Novi and a former assistant state attorney general. He's chief financial officer of the Justice Speakers Institute.
By Brian MacKenzie
Ex-Judge Brian MacKenzie: "A good public defender system will save us all tax dollars."
Jennifer Myers could not pay $91.99 a month in child support. So she was arrested and when brought to court, where without an attorney, she was put in jail for 30 days.
According to the coroner she died died in the Macomb County jail from a sepsis infection.
However, what she may have really died from was not having an attorney. If she had been provided an attorney, as the constitution requires when someone is facing incarceration, she might not have been jailed and her family wouldnít be suing Macomb County.
While more dramatic, Jenniferís story is not unique in Michigan. Not long ago Kyle Dewitt was arrested for fishing out of season. He was incarcerated without having an attorney representing him. Unfortunately, what happened to Kyle is all to common, a report by the Bureau of Justice Statistics said one third of misdemeanants who are incarcerated did not have an attorney.
According to the human rights watch, in the United States, 23 percent of people in jail are awaiting trial on minor crimes such as a suspended driver's license.
In one county in Michigan, on a typical day about 25 percent of those incarcerated for misdemeanor offenses were there because they failed to pay their fines and costs. Most of them did not have an attorney when they were sent to jail. The Association of State correctional administrators in 2011 said it costs $93.65 per day to incarcerate someone in Michigan.
Jailing a person for a minor offense can have very negative effects not just on them, but on their families and the taxpayers.
Being in jail can jeopardize a personís employment potentially destabilizing family finances and ultimately costing the taxpayers. Beyond the daily cost, there is a extremely significant ripple effect.
People who are held in jail while awaiting trial are more likely to pleaded guilty simply to get out of jail. Having a record makes it hard to get a job. Moreover, being held in jail pending sentencing increases the the odds of receiving a jail sentence. From a taxpayers standpoint, what is the point of putting someone like Stephen Papa a Iraq War veteran, who is homeless and could not get an attorney, in jail for going into an abandoned building.
Having an attorney for those charged with minor offenses at their first appearance in court can help ensure that they remain a taxpaying member of the community, and save the rest of us precious tax dollars. However, a survey from the governor's office found only 7 percent of Michiganís courts provided an attorney for people at their first appearance. Not only is this is a violation of a person's constitutional right to an attorney, it is simply to expensive for our state to allow to continue.
In the upcoming lame-duck session, the Michigan Legislature is considering a series of bills that would start to fix these problems. The main opposition comes from a shortsighted view that public defenders cost the taxpayers money. While this might be true in a penny-wise pound-foolish sort of way, it misses the savings in jail costs that we are now paying.
The evidence is clear: A good public defender system will save us tax dollars.
More importantly, a person who is not a threat to society or who is too poor to pay a fine, shouldn't go to jail. Putting people in jail who donít belong there, because they donít have someone to advocate for them when they donít know how, increases the likelihood that they will actually become criminals.
Michiganís jails are overcrowded and people like Kyle Dewitt, Stephen Papa and Jennifer Myers donít don't belong in them. We need that space for the people who do belong there.
Call your legislator tell him or her to support bills that reform Michigan's public defender system.
Sun Dec 11, 2016 4:49 am
|Maryland Court of Appeals: Defendants can't be held in jail because they can't afford bail
Michael DresserMichael DresserContact ReporterThe Baltimore Sun
The Maryland Court of Appeals ruled that defendants can't be held because they can't afford bail.
Maryland's highest court adopted a landmark rule Tuesday aimed at ending the practice of holding criminal defendants in jail before trial when they cannot afford bail.
The seven-member Court of Appeals unanimously agreed on a compromise that does not abolish money bail, as some advocates have urged, but instructs judges and court commissioners to look first to other ways to ensure a defendant appears for trial.
Chief Judge Mary Ellen Barbera called the final language "the best possible proposed rule we can expect when we're working with all stakeholders."
The rule won praise from both bail reform advocates and the bail bond industry, which felt threatened by the original proposal from the court's rules committee.
"Certainly there's a consensus that the lack of money should not keep someone in jail before they have a trial," said Douglas Colbert, a law professor at the
Nicholas J. Wachinski, representing bondsmen, said the rule keeps the option of money bail.
"It preserves judicial discretion and allows judges to be judges," he said.
Wachinski, chief executive of Lexington National Insurance Corp. in Lutherville, said the rule will not put the bail bond industry out of business.
"The industry is committed to serving Maryland and will continue to do so in the future," he said.
The court agreed the new rule will take effect July 1.
The court's action largely accepts the legal reasoning of Maryland Attorney General Brian E. Frosh. The state's chief lawyer, a Democrat, issued advice last year that it is unconstitutional to hold a defendant in jail for no reason other than an inability to afford money bail.
Frosh said the courts must take into account the individual circumstances of each defendant rather than set bail based solely on the nature of the charge. He said that if defendants pose a risk to the community or a flight risk, it is more appropriate to hold them without bond rather than counting on high bail to keep them behind bars.
Paul B. DeWolfe Jr., the state's chief public defender, said the rule preserves the spirit of Frosh's proposal.
"We're very happy that the Court of Appeals approved a rule the purpose of which is to ensure that individuals are not detained or held in jail merely because they're poor," he said.
Frosh, who led fights for bail reform in the state Senate before his election as attorney general in 2014, congratulated the court for addressing the issue head-on.
"It'll lead to better outcomes, the process will be constitutional and fair, and I think it's a great achievement," he said.
Early last month, the court held a contentious six-hour hearing on the proposed rule at which representatives of law enforcement and the bail bond industry predicted dire consequences from a drastic overhaul of the pretrial release system.
Three members of the court voted to adopt the rules committee's proposed changes then, but the majority decided to postpone a decision.
After a month of back-and-forth discussion with the rules committee, the court adopted compromise language proposed Tuesday by Judge Shirley M. Watts. Judge Joseph M. Getty, a conservative Hogan appointee who had been skeptical of the rules committee's original proposal, joined in the final consensus.
"They managed to achieve not only a consensus but unanimity, and they did it around a difficult subject," Frosh said.
The attorney general said courts have many tools besides cash bail to see that defendants show up for trial and don't commit new offenses, including pretrial supervision and electronic monitoring.
"They can require drug counseling. They can require attendance at Alcoholics Anonymous," he said. "There are a lot of things they can do that are likely to yield better outcomes."
While the court's action does not require legislative approval, Frosh said there's still a role for the General Assembly in bail reform efforts. He suggested that lawmakers could push for a statewide system of pretrial supervision to replace the current patchwork system and reduce the need to hold defendants in jail.
"If we make very robust investments, we'll save millions and millions of dollars," he said.
Cherise Fanno Burdeen, chief executive officer of the Pretrial Justice Institute, an advocacy group, said lawmakers must follow up with their own action.
"It's now up to the state legislature to pursue comprehensive reforms of the state's pretrial system and move away from money bail towards [what] we know works: evidence-backed pretrial risk assessment and supervision."
Getty, though he joined in the consensus, was less optimistic about the result.
"This rule will be back before us within the next five to 10 years," he told his fellow judges.
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