The Michigan Joint Task Force on Jail and Pretrial Incarceration has recently learned that Michigan’s criminal justice system is misusing its jails. This was the conclusion of the task force’s most recent report calling for criminal justice reform in Michigan. In their January 2020 report and recommendations to the Michigan Legislature, it concluded many things that were already known to experienced criminal defense attorneys.
These consist of the following:
The problems explained above with our criminal justice system have led to a significant increase in people being sent to jail over the past 30 years, which is inconsistent with the amount of crime happening yearly. The number of people in Michigan’s jails nearly tripled from an average daily population of 5,700 in 1975 to an average of 16,600 in 2016.
Additionally, an alarming number of those who suffer from mental illnesses are given jail sentences simply because criminal justice officials fail to understand their problems. Further, the costs to the taxpayers of our justice system is extraordinarily high at over 2 billion dollars per year; high enough for the third highest county expenditure.
The Task Force was created by the Executive Order of Gov. Gretchen Whitmer in April 2019, three months after she took office. They were responsible to do the following:
The Task Force shall act in an advisory capacity with the goal of developing ambitious, innovative, and thorough recommendations for changes in state law, policy, and appropriations to expand alternatives to jail, safely reduce jail admissions and length of stay, and improve the efficiency and effectiveness of Michigan’s justice systems.
The task force is comprised of an extremely diverse and influential group of people. It is co-chaired by Lieutenant Governor Garlin Gilchrist II and Chief Justice of the Michigan Supreme Court Bridget McCormack. State senators (2), state representatives (3), a social worker (1) a county prosecutor (1), a defense attorney (1), district court judges (1), circuit court judges (2), law enforcement (2), jail administrators (2) a county commissioner (2), a county prosecutor and Michigan Attorney General Dana Nessel also serve on the task force.
The Task Force has held six public meetings, several rounds of subgroup meetings, and more than a dozen stakeholder roundtables, and heard testimony from roughly 150 practitioners and members of the public. Additionally, they examined 10 years of arrest data gathered from more than 600 law enforcement agencies across the state, 10 years of court data collected from nearly 200 district and circuit courts, and three years of individual-level admission data from a diverse sample of 20 county jails.
Below are the key findings and questions raised leading to recommendation for criminal justice reform in Michigan.
There were two disturbing facts discovered about who is going to jail:
The number of people arrested correlates greatly to the amount of people spending time in jail. The failure to appear in court was the most common reason for arrest, with assaultive crimes such as domestic violence and OWI/DUI tied for second.
Additionally, Michigan has the sixth highest rate in the country of people on probation. Judges have a significant amount of discretion when deciding the penalty of a probation violation. The results for the same or similar conduct vary significantly depending upon the jurisdiction. Currently, there is little guidance or structure on when jail is an appropriate sanction for probation violations, nor does there exist an alternative jail program.
While pre-trial detention serves a number of purposes, research suggests that jail detention has a number of negative impacts that can destabilize individuals and increase future offending. These detained defendants also face consequences that can significantly impact their employment, residential stability, and familial stress.
Close family members are also affected because they face an extreme amount of financial pressure to post the necessary bail for pretrial release. Similarly, jail incarceration has also been found to worsen individual labor markets and increase reliance on government assistance. Further, a study in New York City showed that while pretrial detention temporarily reduced offending through incapacitation, it increased arrests after the person was sentenced.
The long-term problems created by pretrial incarceration easily outweigh the short-term benefits.
Many Michigan courts are flat-out abusing their discretion by requiring high bonds to secure pretrial release. This is an outright penalty on the poor, as only those who can afford bond are being released. Freedom is a right and pre-trial detention should be a carefully limited exception.
Federal practitioners, like myself, can attest to the fact that in the federal system, pre-trial detention is much more liberal. For instance, the Federal District Court in the Eastern District of Michigan has the highest rate of pretrial release in the county without any additional ill effect. Pre-trial detention is only withheld if it is determined that a condition or combination of conditions cannot ensure the safety of the public and the appearance in court.
Further, there exists little guidance and uniformity on pre-trial detention. Some courts routinely set high bail amounts while others do not. This results in more people in jail simply because they are poor and not because they are a danger to society.
Approximately a quarter of people sentenced to jail nationwide were sentenced to “time served,” which means they could not afford the bond to be released and stayed in jail until their case was heard. The desire to get out of jail also causes people to plead guilty as soon as possible, in order to get the case over with. Consequently, they do not take advantage of the pre-trial and plea bargaining process, which leads to lesser crimes of conviction with lesser penalties.
In our opinion, the commission made 18 very important recommendations for criminal justice reform in Michigan. Below are highlighted recommendations:
“While it was clear the state would likely prevail, this onerous policy clearly penalized low-income drivers, putting them in a no-win situation by severely limiting their mobility and access to employment,” Nessel said. “It is time to re-evaluate laws that effectively criminalize being poor.”
This report and recommendations have been forwarded to both houses of the Michigan Legislature and the Governor’s Office. Obviously, it’s available for everyone to review and comment. However, it is now on the legislature to come to a consensus on which recommendations are agreed upon, and draft legislation to address them.
It would be best to first determine the approval of constituent groups such as law enforcement, prosecutors, attorney general and defense attorneys. The legislative process can be long and quite complicated, but they have already made progress in criminal justice reform in Michigan (expungement, civil asset forfeiture, raising the age of criminal responsibility), so they are already motivated for further change in criminal justice.
This was the right time for this to happen. We hope for bills to be drafted before the fall.
President of the Michigan Association of OWI Attorneys Lead Award-Winning Team