A Pandemic Reckoning

COVID-19 is bringing fewer arrests and more easily attained bonds. What it means for our region — and jail's role in it.

By Patrick Sullivan | Oct. 3, 2020

In one case, a man was accused of molesting a girl under the age of 13. At his preliminary hearing, the girl testified, and the evidence against the man was presented in court. Instead of awaiting trial in jail, however, the man was put on a GPS tether and allowed to await trial under house arrest.

“That’s something that, from my perspective, is very hard to explain,” said Noelle Moeggenberg, Grand Traverse County’s prosecuting attorney. “It was like: Our case just got stronger, we have evidence on the record, and then this happened.”

In another case, a man accused of domestic violence got out of jail on bond and contacted his victim afterward, a serious violation of the terms of his release. Nonetheless, after he was re-arrested, the defendant got bond again.

“That was really hard for my office to deal with, in terms of explaining to victims,” she said. “There are guidelines for the police and the courts.”

RECONSIDERING JAIL
The aforementioned cases are two examples on one extreme end of the spectrum. Over the last six months, because officials are trying to keep jail populations lower and, as a result, safer during the pandemic, there are many more people arrested in Grand Traverse County who have spent less time in jail than similar cases would require yet not posed any threat or caused additional trouble.

As a consequence, some of the measures taken in Grand Traverse County to reduce the jail population is prompting officials to reconsider who should be in jail and why. Will the circumstances of the pandemic cause the system and society to reexamine the use of jail?

“I think it already has,” Moeggenberg said. “Maybe not punishment as much, at least not in our area. I think that we get, for the most part, fair sentences up here." But Moeggenberg thinks that the pandemic will prompt continued reevaluation of pre-trial detention in some cases.

Of course, things were changing even before anyone ever heard of COVID-19, Moeggenberg said. In the last couple of years, prosecutors, judges, and policymakers in Northern Michigan and across the country increasingly have been questioning who should be in jail, especially while cases are pending and before a person has been convicted.

More and more, in nonviolent cases in recent years, judges have been freeing defendants on personal recognizance, or P.R. bonds, meaning the accused doesn't have to pay anything to get out of jail while their case is pending.

“[P.R. bonds] just got really ramped up with COVID-19,” Moeggenberg said.

Take, for example, someone who is arrested over a weekend for shoplifting or being drunk and disorderly. Up until recently, it would have been standard for them to be held on a bond unless they could pay $50 or $100 to be released. But a lot of people under those circumstances cannot come up with $50 or $100.

“There were some people, unfortunately, who were held because they couldn’t post that money,” Moeggenberg said. “Now, 95 percent of those people are getting P.R. bonds.”

In other, more serious cases, suspects can be released on a G.P.S. tether, unless they are deemed a threat to public safety.

A GPS tether helped in the case of the molestation defendant who was released on bond after his preliminary examination. Moggenberg said that particular defendant has a history of showing up to court, and authorities were confident that he could be kept away from children while released.

Moeggenberg added that the jail recently received a grant that pays for GPS tether monitoring so that more defendants who are awaiting trial can be subject to house arrest even if they cannot afford the costs.

“NOT GOING TO DEAL TODAY”
Once the pandemic arrived in Northern Michigan, not only did the jail population have to be lowered but also trials became much more complicated for judges to hold. Jury selection for the circuit court in Grand Traverse County, for example, has been moved to the nearby Old Town Playhouse theatre. And during trials, jurors are spread out throughout the courtroom. The public cannot attend; they have to watch on YouTube. And because the courts are behind and trials take much longer to occur, defendants in many cases have to be released pending trial because the judge cannot justify the delay.

Moeggenberg said that as more and more people have been released on bond in the last six months, no-shows have become increasingly common in circuit and district court, with bonded individuals missing court hearings slated to happen over Zoom and later claiming they were unable to get into the session through their computer, or not showing up for jail by 5pm on their appointed day, as they’d been told to do when the judge sentenced them.

It’s human nature, in some cases, she said. Before the pandemic, the person would have been sentenced in person by a judge and then would have immediately been taken into custody by a bailiff. When the person is sentenced online and told to report to jail, that leaves them with time to think over the situation and often talk themselves out of following through.

“To some extent, there’s that element of 'I’m not going to deal with today what I don’t have to,’” Moeggenberg said. “I think a lot of people in the system in general kind of have the mindset that 'I’m not going to worry about it today.'”

Although Moeggenberg said she hasn’t yet looked at the overall statistics to determine whether the area's more generous system of releasing people facing charges has prompted an increase in crime, she provided Northern Express with a list that gives a small glimpse of the situation: the cases of six people who had been released from jail under the pandemic guidelines then went on to commit new crimes, plus two who had likewise has been released and violated the conditions of their release by contacting victims.

SECOND LINE OF OFFENSE
Circuit Court Judge Thomas Power said he hadn’t noticed that there had been a large uptick in the number of defendants not showing up for virtual court.

He said those that don’t will likely eventually get picked up by the police, and if they do represent a threat to public safety, the police will make it a priority to get them back.

“The theory is that they’ll be found eventually, but that’s kind of up to law enforcement,” Power said. “You put people on bond, and some people aren’t going to show up.”

Power said the situation is likely more complicated because most of the people who are in the system and then abscond are addicted to drugs or alcohol, and addiction can be a powerful incentive for them to skip out.

“People are getting picked up in Grand Traverse County,” Power said, but adds that some defendants have figured out that there are certain areas downstate where they can go, places where their bench warrant from Northern Michigan will be a low priority for the police, or maybe of no interest at all.

Nevertheless, Power said he understands why the criminal justice system must cut incarceration numbers during this time.

“Running the jail in the era of COVID-19 is very difficult,” Power said. “They quarantine new inmates. They’re doing everything they can to stop the virus from spreading to the inmates.”

If a defendant gets charged and convicted for absconding from bond, the maximum penalty is a four-year sentence added on to whatever other trouble they might face for the original charge.

And even a prosecutor doesn’t charge a person who absconded and is caught, that person will still face consequences for not showing up to jail or court, Power said.

“It’s not a positive, because they’ve probably been out doing bad things after they absconded,” he said. “They have to start over, get dried out and back on a treatment program.”

What they were doing while out will be investigated and taken into account, he said.

QUARANTINED IN JAIL
So far, Grand Traverse County officials have been able to keep COVID-19 from its jail.

Capt. Chris Barsheff, the Grand Traverse County Sheriff’s jail administrator, said that so far, there have been no positive novel coronavirus cases in the jail.

“We came up with a really good protocol to help mitigate the spread of the infection in the jail and, knock on wood, we haven’t had any cases yet,” Barsheff said.

He said it’s not up to him who goes to jail or who doesn’t — “From the jail end, our responsibility is to basically house inmates who are sentenced here by the judges and provide a safe environment here and take care of their needs,” he said — but allows that the reduced population numbers have enabled him to make the jail safer.

In 2019, the jail averaged a population of 140 inmates per day; since March 16, the day the lobby doors were locked to the public, the jail has seen an average daily population of 92. In March, it was as low as 81, Barsheff said.

The lower numbers enabled jail staff to clear out a section of the jail in order to make an isolation wing where people brought into the jail could be screened and quarantined for 14 days if necessary.

Barsheff also said the low population numbers enabled the jail to save money; they were able to shift around staff and cover for vacations and people off for training without having to resort to overtime pay to cover the extra shifts. If arrests start to increase and more people are put in jail, he said he will need to hire more staff — and the funds to do do.

While Barsheff said he understands why some people sentenced over Zoom and told to report to the jail at a certain time might take the risk and avoid showing up to be locked up, he's witnessed some surprises, too. He remembers one man from downstate who, during his online sentencing to prison for a Grand Traverse County felony case, was told to drive up to Traverse City to turn himself in at the jail. The man showed up on time.

“That’s responsibility there,” Barsheff said.

“TOO MANY PEOPLE IN JAIL”
Mark Risk, a defense attorney who helps run the drug and sobriety courts in district court, said he believes people should spend less time in jail.

“I have always believed we have too many people in jail or that jail sentences are too long,” Risk said. “I also feel we have made a lot of progress into being more thoughtful about why there needs to be a jail sentence and how long that should be. More opportunities are given to show a defendant can be self-correcting.”

Risk said he is not aware of any statistics that show more crimes have been committed because there are fewer people in jail.

“I’m guessing that if there is a second offense while someone is on bond, the police will go and pick someone up. The seriousness of the offense should also come into play,” he said. “The more danger posed to the public, the more likely the court would take action.”

Risk agreed that the measures taken during the pandemic are continuing a trend that had already started.

“I believe the judicial system as a whole is moving toward less incarceration,” he said. “A giant step was taken with the implementation of the treatment courts.”

For example, he said, not long ago, 80 percent of the participants who go into sobriety court today would in the past have been charged with a felony — something that would require spending at least 30 and up to 93 days in jail upfront.

Today, people in that situation in Grand Traverse County don’t spend that time in jail, and sobriety court has a 93 percent graduation rate, he said.

Philip Settles, another Traverse City defense attorney, said he doesn’t have stats but doesn’t think that having fewer people in jail today is resulting in more crime. He also thinks that a lot of times, people don’t show up for court during the pandemic because a lot of them do have trouble getting online and logging in.

“I do not think that the lesser jail population means more crimes are being committed,” Settles said. “My opinion is based upon the number of bond and probation violations going down or staying steady. I am guessing that people really, really do not want to be in jail.”