Criminal justice reform is a set of ideas to make the application of the law more equitable. The idea of criminal justice reform has mostly bipartisan support, and is a series of changes to existing laws to make the criminal justice system more just. The underlying philosophy of the US criminal justice system is exemplified by “Lady Justice.”
Conceptually, the law is blind, meaning race, gender, and financial status are not supposed to affect the outcome; punishment with rehabilitation should be balanced. Simply put, no person should be put in jail just because they lack financial resources.
The Reality of Criminal Justice
In reality, race, gender, and financial status determine to a large extent what type of justice you receive. African-Americans are more likely than white Americans to be arrested. Once arrested, they are more likely to be convicted, and once convicted, more likely to receive long prison sentences. According to the U.S. Bureau of Justice Statistics (USBJS), African Americans are 5.9 times more likely to be incarcerated than white Americans, while Hispanics are 3.1 times more likely.
For context, African Americans and Latinos comprise 29% of the population in the United States, but 57% of the prison population according to the U.S. Bureau of Justice Statistics.
“The prison population is overwhelmingly poor and disproportionately black.” David Cole, No Equal Justice: Race and Class in the American Criminal Justice System.
Men make up the majority of those on probation, parole, and in prisons (and generally), poor people spend more time in jail waiting for trial, even when they are eventually found “not guilty” due to the inability to post cash or property bonds. Criminal justice reform is a series of measures designed to return our justice system to the ideals which it was founded upon.
New Strides Towards Criminal Justice Reform in Michigan
Michigan is moving in the right direction with reforms. In 2019, Governor Whitmer signed an Executive Order establishing the Michigan Joint Task Force on Jail and Pretrial Incarceration. The Task Force noted that despite the overall crime rate falling over the past 35 years, the number of people incarcerated has tripled. The majority of jail admissions were for misdemeanors and low-level offenses.
The task force has sponsored several bills and made recommendations to reform the Michigan criminal justice system. Gov. Whitmer signed 20 new bills into law on Jan. 4th, 2021, based on recommendations from the Task Force. Some of the most important changes are discussed below.
Discretion in Policing
The criminal justice system starts with police departments. Under the new reforms, police would have more discretion to issue appearance tickets, as opposed to arresting people for non-violent offenses.
Under the Senate Bill 1046, police officers would issue appearance tickets for misdemeanors and ordinance violations instead of arrest, except in the case(s) of:
- People violating a personal protection order.
- Assaultive crimes and domestic violence
- Serious misdemeanors as defined by MCL 780.811.
Police can still arrest people for misdemeanors and ordinance violations who:
- Refuse to follow the police officer’s reasonable instructions.
- Will not offer satisfactory evidence of identification.
- Are likely to continue or resume the offense, or endanger another person or property.
- Are an immediate danger to themselves or requires medical attention.
- Any other reason the police officer may deem reasonable.
Discretion in policing is a good start. However, discretion often results in increased disparities, not less. When tested for bias, police officers exhibit bias against minorities, but the bias is part of our society as a whole. When exercised by police, bias results in increased force on minorities, who are more likely to be handcuffed without arrest, pepper-sprayed, or physically contacted by an officer according to the National Bureau of Economic Research (2016).
“A large portion of white Americans have these biases, and it is hard to expect police officers to be any different.” John Dovidio, PhD, Yale.
It remains to be seen if police will exercise their new discretion in a fair and equitable manner across racial and economic lines.
Changes to the Handling of Cases in Court
There is a rebuttable presumption that a person convicted of most misdemeanors should not be sentenced to jail time. Individuals convicted of non-serious misdemeanors should be sentenced to a fine, community service, or other non-jail or non-probation sentences.
If the court sentences a misdemeanor offender to jail, the court must state on the record the reasons why. If a person fails to pay court fines after sentencing, prior to imposing an additional sentence, the court must find on the record that the person has the ability to pay the fines without manifest hardship, and that no “good faith” effort was made to pay the fines (Senate Bill 1048).
Holmes Youthful Trainee Act (HYTA)
HYTA is a sentencing option that allows an offender to achieve a dismissal of certain criminal charges after the successful completion of HYTA conditions.The new law raises the age for HYTA eligibility two years to 25 (Senate Bill 1049).
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In an effort to reduce incarceration for missed court dates, a person who voluntarily appears on a bench warrant, who has not committed an assaultive crime, should:
- Be arraigned within 2 hours if possible.
- The court should presume the person is not a flight risk when setting bond conditions.
- If the person cannot be arraigned within 2 hours, the court should recall the bench warrant and set a future arraignment date.
The court may jail the person if they have already set aside a previous bench warrant (Senate Bill 1047)
Probation for most misdemeanors is limited to two (2) years. Felony probation for most non-assaultive crimes is limited to three (3) years. Probation can be extended up to two (2) years if the rehabilitation goals are not achieved or a specific articulable risk of harm exists. Probationers are eligible for early termination of probation after half of the probation term is completed if:
- All conditions of probation are completed.
- There have been no violations of probation within 3 months of the discharge.
- Additionally, non-payment of a fine does not automatically make the probationer ineligible for early termination.
After half of the probation term is completed, the probation officer will notify the court. The court can then discharge the probationer without a hearing. If the court is not going to discharge the probationer, a hearing must be held to explain why on the record (Senate Bill 1050).
Driving License Suspensions
The third most common reason for jail admissions in Michigan is driving with a suspended license. Often, driver’s licenses are only suspended due to unpaid traffic fines. It follows that the majority of people jailed for suspended license are lower income people. The new laws will reduce the number of criminal offenses that result in driver’s license suspensions for non-dangerous, non-driving offenses such as unpaid traffic fines (House Bills 5846-5852).
New Laws Protecting Juveniles
Several laws have been enacted to protect juveniles in the criminal justice system:
- Anyone under 18 cannot be housed with adult inmates (House Bill 4143).
- Children under 18 must have their cases taken to family court, if the child is over 14 they can only be sent to criminal court upon motion by the prosecuting attorney and ruling by a judge (House Bill 4142).
- Children under 18 cannot be housed with or transported with adult inmates going to and from court (House Bill 4140).
- Even if they are being tried as an adult, a child cannot be held with adult prisoners (House Bill 4145).
Some important laws related to criminal justice reform previously signed by Gov. Whitmer include changes to asset forfeiture and expungements.
Civil Asset Forfeiture
Before Governor Whitmer signed the new bills into law in 2019, the police could seize assets they suspect were related to, or were the proceeds of criminal activity in a civil legal proceeding called forfeiture; separate from or without a criminal case. Under the new rules, asset forfeiture related to controlled substance crimes without a criminal conviction is prohibited (House Bill 4001).
Civil forfeiture cases cannot move forward while criminal proceedings are ongoing, and the law puts the burden on the state to prove the property is subject to forfeiture. The state must prove a person knew about and consented to a crime in order to keep their property. The bill requires a return of seized property if a criminal warrant is not issued within 90 days of a seizure.
Major Changes to Michigan Expungement Law
New laws effective 2021, in Michigan make more people eligible to start over and put a bad decision behind them.
Governor Whitmer signed seven bills into law in 2020 known as the “clean slate” initiative. The laws set out new rules for Michigan expungement. These new laws will benefit thousands of people across the state. The new laws, which go into effect Apr. 11th, 2021, increase the availability of expungements to people convicted of crimes in Michigan.
Increased Eligibility for Expungement
In the past, you were limited to removing one (1) felony or two (2) misdemeanors. However, the new law effectively removes the cap on the number of misdemeanors you can expunge. It also makes more felony convictions eligible for removal. Under the new rules, a person with up to three (3) felony offenses is eligible to have the convictions set aside (MCL 780.621)
“One Bad Night” Clause
Under MCL 780-621b, multiple convictions are counted as one offense for purposes of expungement, referred to as the “one bad night” rule, if multiple crimes occurred within 24 hours and arose from the same transaction they are counted as one offense. This provision will make expungement available to many people who did not qualify for expungement under the old law.
This provision does not apply to:
- People with pending charges
- Assaultive crimes
- Crimes where minors were involved
- Crimes resulting in serious injury
- Crimes punishable by 10 years or more.
Under MCL 780.621g, some offenses will automatically be expunged after seven (7) to ten (10) years. However, not all offenses are not automatically set aside. The automatic expungement time period is longer than the time frame in which you are allowed to file an application for expungement.
Additionally, knowing if your offense qualifies for automatic expungement requires review of the nature of the offense, as there are limitations to what crimes automatically are set aside. Automatic expungements will not begin to take effect until Apr. 11th, 2023.
Many jurisdictions across the country are abolishing cash bail for misdemeanor cases, and limiting it for felony cases. Pretrial detention has been shown to increase the odds of conviction and longer prison sentences. According to the UN Report on Racial Disparities, 70% of pretrial releases require cash bond.
However, almost every court in Michigan still has a cash bail system. This means that if you are charged with a crime, the court may hold you in jail until your trial date unless you can post money to ensure you return to court. Obviously, poor people are more likely to remain in jail awaiting trial and therefore more likely to be convicted and serve a prison sentence.
When faced with the option of sitting in jail or pleading guilty and receiving a sentence of time served, many people choose to plea even if they are not guilty to avoid losing their job, family, and/or home.
Community-Based Programs for Those With Mental Health Issues
The task force recognizes that people with mental health issues often end up in the criminal justice system. The task force has recommended the criminal courts divert people with mental health issues away from the criminal system. According to them, courts should recognize these people and steer them towards community-based programs.
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Increase Pretrial Release Rates
The task force has recommended increasing pretrial release of non-violent offenders through personal recognizance bonds, and other conditions such as GPS tethers.
Shorten Time Between Arrest and Arraignment
By shortening the time between arrest and arraignment, fewer people are incarcerated waiting for a release on bond.
It cost money to house and feed inmates. If the poorest inmates are being held in jail the chance of the state being reimbursed for the costs is low. The benefits of criminal justice reforms extend to tax payers who have no connection with the criminal justice system.
Michigan is definitely moving in the right direction on criminal justice. However, there is still a long way to go.
Michael Norman is a trial attorney practicing both civil and criminal litigation. Over the last 16 years, he has handled hundreds of cases; collecting millions of dollars for civil plaintiffs and multiple not-guilty verdicts for criminal defendants. He received his BA from Clark Atlanta University in 1998 in Sociology and Criminal Justice. He earned his JD from Georgia State University in 2004, where he served as president of the Black Law Student Association 2003. Michael is admitted to practice law in Michigan, the state of Georgia, federal courts and the Supreme Court of Georgia.
Michael was born and raised in the City of Detroit. He served in the Marine Corps after high school until he was discharged in Georgia, where he settled and attended both undergraduate and law school. After interning with the Department of Justice, he has continuously represented criminal defendants and civil plaintiffs in Michigan and Georgia courts. Michael was recognized by the State Bar of Georgia Committee on Professionalism in 2007. He returned permanently to Michigan in 2013 and continues to represent clients in both criminal and civil cases.