News Photo by Reagan Voetberg Deputy Mike Lash poses by an Alpena County Sheriff’s vehicle by the Alpena District Courthouse on Wednesday.

ALPENA — A recent executive order signed by President Donald Trump has brought the cashless bail, or personal recognizance as it is called in Michigan, conversation back into the forefront.

In the executive order titled Taking Steps to End Cashless Bail to Protect Americans and signed Aug. 25, President Trump announced that the attorney general will be submitting a list to the president of states and local jurisdictions that have, in the attorney general’s opinion, substantially eliminated cash bail as a potential condition of pretrial release from custody for crimes that pose a clear threat to public safety and order.

Those identified cashless bail jurisdictions will then be at risk of suspension or termination of federal funding, according to the order.

According to Michigan Court Rule 6.106, pretrial release from jail on personal recognizance versus a cash bail is preferred. The court can deny pretrial release to defendants charged with murder, treason, or a violent felony with certain conditions.

In order for a defendant to be released on personal recognizance, the court needs to consider relevant information including the defendant’s prior criminal record, record of appearance at court proceedings, the defendant’s history of substance use or addiction, and the defendant’s mental condition, including character and reputation for dangerousness, among other considerations.

Michigan law states that except as otherwise provided by law, a person accused of a criminal offense is entitled to bail, and the amount of that bail cannot be excessive.

Attorney Julie Miller from the Northeast Michigan Regional Defenders Office said that she does not think President Trump’s executive order will have much effect in Michigan.

“An executive order is not a law,” she said. “It would take Congress to pass a law. President Trump ties funding to these executive orders, and so it will be interesting to see how that plays out, but I don’t think it’s really going to affect Michigan. Because we have those rules that say when it’s appropriate to have a (personal recognizance) bond versus the money bond.”

The idea behind the traditional cash bond is that a defendant on pretrial release will be incentivized to make their court appearances if they stand to lose money for not doing so. The problem with that is it disproportionately impacts defendants without the means to pay for their release.

“Say you’ve got two people, both charged with a serious crime, say they’re both charged with felonious assault which is a four-year felony,” Miller said. “And you give both of them a $25,000 cash bond… one of those individuals has a family with means… he has a way to post the bond. The other individual, same exact charges, is indigent, has no money, has no resources, has no family that can help him.”

“So now, these two potentially dangerous individuals, one is out of jail because he can afford to post the money,” she said. “The other one is in jail because he can’t. So how is that protecting the public?”

In her experience, Miller has seen better outcomes for defendants that are released on personal recognizance.

“It’s much more difficult for a client to participate in his own defense when he’s in jail,” she said. “Because we have to meet with him either over Zoom or go meet with them at the jail. They can’t be gathering evidence for us. We have to try to work with their friends or family members to get us things that we might need.”

When they’re out of jail, clients can also maintain employment and housing, take care of their children, and access mental health services easier. It’s also easier to prove to the court that a client is deserving of probation, if they are convicted, because they can report that they have made improvements like holding down a job or starting counseling.

On the law enforcement side, Alpena County Sheriff Erik Smith said that bail reform has reduced the number of people in custody at the jail.

Smith said he understands the principle behind cashless bonds and that not everyone has the same financial means to post bail. However, the victims need to be taken into consideration as well.

“Is it fair that the person that just victimized someone is just automatically released and they have to live in fear?” Smith said. “I went into law enforcement because I want to protect the community. When you put your blood, sweat, and tears into making an arrest, and they get released right away, it makes you wonder why you’re doing this in the first place.”

“That is a very tough topic,” Smith added.

Reagan Voetberg can be reached at 989-358-5683 or rvoetberg@TheAlpenaNews.com.