Under Michigan law, pretrial bond is not only allowed or encouraged, but it is MANDATORY under Court rule unless an accused has been charged with certain crimes. For instance, those accused of misdemeanors are generally entitled to bail for misdemeanor arrests made with or without a warrant, though they may be required to pay an interim bond to guarantee their appearance. An interim bond is a sum determined by the arresting officer not to exceed the maximum fine for the offense and not less than 20% of the minimum possible fine. M.C.L. 780.581(2). If an individual is incapacitated, wanted on another charge, unable to establish their identity, or otherwise unsafe to release, they may be held until in a proper condition to be released or until the next session of court.
For those accused of certain felonies, the treatment is slightly more complicated.
Bond may be denied if;
- Accused of Murder or Treason;
- Accused of First-degree criminal sexual conduct, armed robbery, or kidnapping with the intent to extort money or other valuable thing, unless the court finds by clear and convincing evidence the accused is not likely to flee or present a danger to anyone; or
- another violent felony AND;
[A] at the time of the commission of the violent felony, the defendant was on probation, parole, or released pending trial for another violent felony, OR
[B] during the 15 years preceding the commission of the violent felony, the defendant had been convicted of 2 or more violent felonies under the laws of this state or substantially similar laws of the United States or another state arising out of separate incidents, if the court finds that proof of the defendant’s guilt is evident or the presumption great; (b) a defendant charged with criminal sexual conduct in the first degree, armed robbery, or kidnapping with the intent to extort money or other valuable thing thereby, if the court finds that proof of the defendant’s guilt is evident or the presumption great, unless the court finds by clear and convincing evidence that the defendant is not likely to flee or present a danger to any other person.
Otherwise, bond is allowed and required. Further, the court MUST order pretrial release on Personal Recognizance subject to the condition that the defendant must appear as required and will not leave the State without court permission;
UNLESS
- the court determines that such release will not reasonably ensure the appearance of the defendant as required, or
- that such release will present a danger to the public.
It will be of no shock to most readers of this blog, that the single most-used phrase by a court seems to be that the court is “concerned about a threat to the public” which seemingly allows the court to skip every bit of the 2021 jail reforms and continue to add restrictions on Constitutional rights to a defendant and continues to allow the assessment of cash bail which defendants often cannot afford.
Threat to the Public / Danger to the Community
Historically, the law has required an actual showing that a person intends to go out and harm a person in order to rise to the level of a “threat to the public.” More and more prosecutors and courts are ignoring this and simply assuming that if a person has a criminal history, and that same person is accused of a crime now, they simply MUST be a threat to the public. It is the position of this office that this is inaccurate under the law. A trial court must state its reasons for establishing cash bond under Mich. Ct. R. 6.106 on the record unless the defendant is released on his own recognizance. Counsel and the Defendant must be given the opportunity to correct any errors that appear on the record and be allowed to present any additional material evidence that could have originally been considered in the setting of bail. People v. Spicer, 402 Mich. 406 (1978)
Finally,
It is important to note that bail/bond is granted to people WHO HAVE NOT YET BEEN CONVICTED OF ANYTHING. They are INNOCENT UNTIL PROVEN GUILTY! In most of these cases, until a defendant is convicted, since she or he is entitled to reasonable bail as a matter of constitutional and statutory right, and “[p]retrial liberty must be the norm, and pretrial detention the carefully limited exception” (United States v. Salerno, 481 U.S. 739, 755 (1987)).
The Eighth Amendment to the United States Constitution and Article 1, §16 of the Michigan Constitution prohibit excessive bail. “Bail is generally considered unconstitutionally ‘excessive’ when it is set at an amount higher than a value reasonably calculated to provide adequate assurance that the accused will stand trial and submit to sentence.” Stack v. Boyle, 342 U.S. 1, 5 (1951). For indigent residents of this county, an unreasonable amount may be only a few dollars. When the household income for an indigent resident is less than $28,000.00 per year and the take-home amount for that same pay is only around $1800 per month. And when median rent is nearly $850 per month ($10,200.00 a year), with other household expenses easily exceeding $1000 per month, it is easy to see how a bond of even $100 is impossible.
Bond reform has made progress over the past few years in Michigan. I now urge the State legislators to define what makes a legitimate “Threat to the Community” so as to remove the knee-jerk reaction of courts to simply claim it exists in every case.
This Blog post created with research materials available online and additional research provided by the State Appellate Defender Office.
Office of the Public Defender 