Discretion or abdication? Washtenaw prosecutor disrupts law enforcement traditions

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Oralandar Brand-Williams, The Detroit News
·7 min read
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Feb. 21—Influenced partly by his experience as a Bronx public school teacher and a law clerk for the late U.S. Supreme Court Justice Ruth Bader Ginsburg, Eli Savit has made headlines with a series of initiatives in his first six weeks as Washtenaw County prosecutor.

Savit has said he won't prosecute consensual sex work, won't charge juveniles for low-level offenses, won't authorize charges for illegal drugs or weapons found in routine traffic stops, won't prosecute possession of natural psychedelic drugs and he's instructed members of his office not to request cash bail for criminal defendants.

Savit, who won a three-way Democratic primary as a reformist candidate in August, is making his policy changes in a traditionally liberal county. And they come at a time when calls for criminal justice reform have increased amid racial justice protests and debate over the effectiveness of traditional law enforcement practices.

But his decrees have led some to suggest he's not fulfilling his obligation to uphold Michigan law. Others say they fear his bail approach will make the county and state less safe.

The newly elected prosecutor argues he is simply using prosecutorial discretion to exercise in what circumstances he files charges.

"What we do in the prosecutor's office does not have any impact on state law. But prosecutors have inherent discretion to determine when — and in what circumstances — to file criminal charges," Savit explained. "That's baked into the system; prosecutors have an independent duty to bring only the charges that are in the interests of justice."

More than a week ago, the 37-year-old prosecutor directed the county's assistant prosecutors to charge crimes as hate crimes "when they're motivated by the victim's sexual orientation or gender identity." Michigan's hate crimes law "doesn't expressly" include sexual orientation/gender identity, but the law does prohibit crimes targeting someone "because of gender," Savit said.

The prosecutor says his approach to law was influenced by his experience teaching children from economically struggling families in the Bronx and cemented through his legal tutelage under Ginsburg, who served on the nation's highest court for 27 years until her death last September.

"What always struck me the most about her was she had the individual human beings who are at the center of each individual legal case at the point of her mind in everything she did," Savit told The Detroit News.

Critics weigh in

The Washtenaw initiatives, especially Savit's decision to scrap cash bail, have supporters but have also drawn criticism.

At the American Civil Liberties Union of Michigan, which has filed a class-action lawsuit in federal court against the use of cash bail, senior staff attorney Phil Mayor says the practice is counterproductive and discriminatory.

Cash bail, he said, "discriminates against poor defendants who may find themselves incarcerated simply because they can't afford to pay for bond even at a time when they have not been convicted of any crime and remain presumed innocent."

"(Cash bail) doesn't protect the public or increase (court) appearance rates," Mayor said. "There are multiple studies showing the use of cash bail to detain people actually increases recidivism."

But state Rep. Matt Maddock, R-Milford, says cash bail remains an effective tool in making sure defendants appear to face charges.

"Cash bail ensures that people show up to court. Eliminating it, as we have seen in every other state that tries to eliminate it, is that the 'failure to appear' rate skyrockets and courts cease to effectively function," said Maddock, who is a bail bondsman.

"Bail is the financial promise that someone won't run away. So if they face serious charges, without bail, they will flee. These policies will kill people."

St. Clair County Prosecutor Mike Wendling cautioned against some of Savit's reform policies including eliminating cash bail and failing to prosecute prostitution.

"I see that as not following the law" said Wendling, a former president of the Prosecutors Association of Michigan. "We have an obligation to enforce the law. It's not my job to decide which laws to enforce. The role of the prosecutor is to follow the law as it is written. As a whole, prosecutors are a conservative group."

Wendling said he understands some of the arguments about how cash bail might discriminate against poor defendants. But he emphasized that cash bail can be used as a crime-fighting tool because it ensures that defendants will show up for court and follow bond conditions, which help to deter defendants from committing more offenses.

"Completely eliminating cash bail does have a negative effect on crime control," Wendling. "I do agree people should not be held because they don't have the money to get out. That's the goal (helping poor defendants) many reforms are trying to reach."

'Treat people fairly'

A Washtenaw County native, Savit grew up in Ann Arbor, where he attended Pioneer High School before earning a bachelor's degree from Kalamazoo College. He taught special education and eighth-grade American history in one of New York City's toughest boroughs before returning to Ann Arbor, where he earned a law degree from the University of Michigan.

His legal career included working for federal judges, handling appellate cases and, most recently, serving as a lawyer in Detroit Mayor Mike Duggan's administration.

When he decided to run for elective office, Savit pledged to end cash bail, "consider the monetary costs of incarceration," "treat kids like kids" and prioritize rehabilitation over punishment, according to his campaign website. Savit argued the more money and resources that were spent "on non-violent and victimless crimes, the fewer we have to spend on serious crimes like gun violence, sexual assault, and human trafficking."

His main opponent, veteran prosecutor Arianne Slay, ran on a similar platform of "restorative justice" that also sought more rehabilitative programs for offenders to ensure they don't commit crimes again.

Savit ended up winning in a three-candidate Democratic primary in August, when he effectively won the office. He won 50%-43% over Slay, an Ann Arbor senior assistant city attorney and a former assistant county prosecutor, and was unopposed in the general election in the Democratic stronghold.

Savit said the changes he is making are based on "Justice for All" principles that should be part of the nation's criminal justice system.

"Our criminal legal system needs to treat people fairly and equitably and impose consequences not because of who you are but because of what you did," he said. "Many of our policies are focused on that (and) rooting out these socioeconomic inequities that we see for example in (the) cash bail system."

Savit added: "Justice for all means we are treating everybody according to the individual facts of their case and not ... because of their background, because of their race, gender, their religion."

While prosecutors don't determine or set bail, their recommendations on what a person's bond should be can play a role in whether a defendant is released from jail while awaiting trial.

In the case of youthful offenders being sent to juvenile detention centers for low-level offenses, Savit says such punishment is "not keeping us safer" and adds that the "hard work" needs to be at the front end so their behavior will not escalate. He cites research for his stance.

In a 2019 report, the Prison Policy Initiative organization reported "the juvenile justice system confines large numbers of children and teenagers for the lowest-level offenses. "For nearly one in one youth in juvenile facilities, the most serious charge leveled against them is a technical violation (15%) or a status offense (4%), the group found.

"These are behaviors that would not warrant confinement except for their status as probationers or as minors," the Prison Policy Initiative argued.

He favors diversionary programs and other initiatives that keep juveniles out of detention homes.

"They're very effective," Savit said. "Rather than charging low-level crimes, we are going to pursue more (rehabilitation) options. The data clearly shows these type of interventions are more effective than a punishment approach in fighting crime. Sending a young person to juvenile detention system will increase crime and more serious crimes."

In regard to using hate crime laws when a victim was targeted because of sexual orientation or gender identity: "This is an open issue in the Michigan courts, but I have little doubt the courts will ultimately conclude that our hate crimes law encompasses hate crimes targeting LGBTQ+ people," Savit said.

"That said, I don't know how long it will take for the courts to finally reach that conclusion. And we cannot wait to protect members of our LGBTQ+ community that may be targets of hate crime."