Pigs Fly in Lansing

Guest Opinion

By Amy Kerr Hardin | Feb. 15, 2020

Bipartisan cooperation in Lansing. Yes, you read that correctly.
 
Two Republican leaders and two Democratic officials put their heads together to form a joint task force with the goal of fostering better outcomes for those in the criminal justice system and for the communities in which they live. A diverse group, including conservative think tank the Mackinac Center for Public Policy, recently found themselves in rare agreement on some critical reforms for local jails, along with new guidelines on pretrial incarceration. Other stakeholders include all three branches of government, the Michigan Association of Counties, and the Michigan Sheriffs Association.
 
Michigan, like many states, has experienced a “law and order” policy shift that has resulted in unnecessary and harmful over-incarceration, particularly for minor nonviolent crimes. Prosecutors have been abusing their powers to lock up people who have yet to have their day in court — a practice that can destroy the life of a defendant.
 
Michigan’s Chief Supreme Court Justice and task force member, Bridget McCormack, explained the need for reform this way: “Even short stays in jail can actually increase recidivism, so we learned about our jail population. There’s this large number of people who are cycling through our jails for short stays, maybe a day, three days, a week, but long enough to disrupt their lives. You can lose your job, you can lose your kids, in a couple of days in jail.”
 
Some of the offenses are so minor it’s shocking to find the defendants behind bars. In 2018, the third most common reason for lockup in Michigan was driving without a license.
 
The Prison Policy Institute finds that, nationally, approximately 70 percent of people in local holding facilities are not convicted of any crime. They are held at a tax payer price tag of about a half billion dollars. But the larger cost has been hiding in plain sight: communities pay by breaking individuals and their families.
 
The task force found that county jails impact many more Michigan residents than state prisons, often with poor outcomes. They concluded that jail time translates into increased criminal activity. Incarceration of a parent has a deeply detrimental impact on children, and the resulting problems bleed over into the community through school systems and child services programs.
 
Michigan jail populations have exploded in recent years, even though crime in the state is at a 50-year low. In short, we are locking up too many of our citizens.
 
The courts are slowly coming around to a more vigorous support of the basic constitutional protection of due process. As it stands now, petty crime is a rich man’s game. Too often, the key deciding factor in whether a defendant serves time is his or her ability to pay court costs. There is no get-out-of-jail-free card, but both the Fifth and Fourteenth Amendments offer protections that would consider court costs a means test — a violation of due process.
 
Unfortunately, Michigan provides a poverty of guidelines for incarceration, both pre-trial and post-conviction, leaving prosecutors and judges to make sentencing seem arbitrary, biased, and capricious as it varies from court to court and judge to judge.  
 
Additionally, local jails, especially in rural areas, lack the resources to recognize and deal with the estimated 25 percent of inmates suffering from mental health issues.
 
The task force offered a robust set of recommendations.
 
At the top of their list is to stop suspending and revoking driver’s licenses over offenses not related to safe driving and to make most traffic-related violations a civil infraction instead of criminal. The loss of license can lead to loss of employment. Also important: refraining from automatically arresting people for minor warrants and offenses that could be better handled through other means. The task force also advocates for a more proactive training process of law enforcement professionals on mental health issues. They recommend an increased use of pre-trial release on personal recognizance bonds.
 
While they want to ensure “speedy trials,” dockets may struggle to keep up. The recommendation would still allow the court up to 18 months to provide due process, but with fewer people being processed in the courts, wait times might decrease.
 
Some other suggestions include establishing more reasonable probation and parole guidelines that will forestall reincarceration over technical violations, such as missing an appointment. The task force also wants local courts to reduce fines based on ability to pay.
 
They want to see that those serving time are free from the financial burden of paying for their own incarceration. That concept may rub many the wrong way, but poverty can be very expensive — keeping otherwise productive community members in what is effectively a debtor’s prison, serving time well beyond the original sentence.
 
The task force did not appear to address the serious problem of coerced plea bargains in which defendants are offered deals to cop a guilty plea in return for a lesser sentence. Again, this goes back to the due process issue; plea deals are typically offered to defendants of scarce financial means. The offers come right on the heels of an arrest — before the pre-trial discovery process is even started. That means public defenders are often put in the position of cutting a deal for a defendant who might not even be guilty.
 
Nationally, 95 percent of defendants accept the extortative plea offer, even though among those who go to trial, 49 percent of accused are exonerated in manslaughter cases, and 66 percent are cleared of drug charges.  We are locking up innocent people.
 
We still have more work to do.
 
Amy Kerr Hardin is a retired banker, regionally known artist, and public-policy wonk. You can hear and learn more about the state of Michigan politics on her podcast, www.MichiganPolicast.com.