Michigan criminal justice reform effort gains wider bipartisan support
Michigan officials appear to be gaining momentum on making serious jail reform with the introduction of bipartisan legislation that is being given legislative priority after recent protests and continued calls for changes to policing and the court system.
Republican and Democratic lawmakers want to decrease the number and type of offenses that could land a person behind bars. The aim is to cut down on needless jail stays that ensnare individuals who would otherwise have relatively clean records.
While the package stops short of eliminating cash bail in Michigan — a demand of police brutality protesters in recent weeks — it might help address some of the root issues triggering unnecessary jail stays, supporters say.
The legislation came about after critics warned that trying to eliminate the cash bail system for arrested criminal suspects would be dangerous and would lessen the incentive for released suspects to return for trials.
But the bipartisan proposals would allow police officers more discretion to issue appearance tickets instead of making an arrest, create incentives and more lenient sanctions for people on parole, and reduce arrests to enforce the payment of debts and fees. The bills also would decriminalize certain low-level traffic offenses, eliminate mandatory minimum jail sentences and reduce the number of violations required to suspend an individual's driver's license.
"We have been working closely with law enforcement as well as with other stakeholders to get thee bills just right," said Sen. Sylvia Santana, D-Detroit. "... To get this bill package over the finish line is crucial to lots of people in our state.”
Dangerous drivers shouldn’t be on the road, but license suspension and revocation have become defaults to many non-violent offenses and land people in jail, said Rep. Bronna Kahle, R-Adrian.
"Jail is good for removing a dangerous person from society while the courts handle the case," Kahle said. "But people also go to jail in huge numbers … for low-level, nonviolent offenses, for technical violations on their probation rolls or simply missing a court date. That’s not what jail is for. That’s not going to make us safer.”
The bills were referred to Senate and House judiciary committees, but have yet to be scheduled for hearings.
The criminal justice reform package responds to key findings and recommendations of the Michigan Joint Task Force on Jail and Pretrial Incarceration. The recommendations stemmed from a months-long study financed by the Pew Charitable Trust and have helped lawmakers attempt to address protests stemming from the death of George Floyd in Minneapolis.
The task force found the growth of Michigan’s jailed population had more than tripled in 40 years even as state crime rates in the last decade fell to the lowest levels in a half-century. The task force said jail growth was driven in equal parts by those serving time on a conviction and those incarcerated before trial.
Traffic offenses made up 50% of all 2018 criminal court cases, and driving without a valid license ranked as the third most common reason people went to jail, according to the task force report. In 2018, officials suspended about 358,000 licenses for failure to appear or failure to pay fines and fees.
Cash bail not targeted
Excluded from the legislative initiative were reforms to the state’s cash bail system, which Detroit area protesters named as one of the top reforms needed to lessen the disparate impact Michigan’s criminal justice system has on low-income and minority communities.
Detroit Mayor Mike Duggan has said he is “appalled” by the state’s cash bail policies and supported reforms of the system, which opponents have argued keeps low-income, low-risk offenders in jail because of an inability to make bail.
"This cash bond system is fundamentally racially discriminatory," Duggan said at a June 8 press conference. "Is this a time that we can get folks to focus on it?"
The bond system requires defendants wishing to get out of jail while a case is pending to pay a bond in full or in part. Either the defendant finances the bond himself or a bail company guarantees it will pay in full if the defendant doesn't show up. Some judges also issue personal recognizance bonds that don't require a down payment.
The problem is some defendants lack the money to take advantage of any of those options and remain in jail.
In a sample of 20 jails accounting for nearly 50% of the state’s jail population, officials found the majority of those who were released on bond between 2016 and 2018 posted bail within 24 hours, but one-third spent at least two days in jail, according to the report from the Michigan Joint Task Force on Jail and Pretrial Incarceration.
About 25% of those sentenced to jail received sentences that included time served, for an average of five days served in jail on misdemeanors and 11 days in jail on felonies.
About 40% of those jailed for drunken or drugged driving in the 2016-18 period were jailed for two days or more and 10% longer than a month, according to the task force. Nearly 36% of people jailed for driving without a valid license stayed in jail for more than two days, and 5% were jailed for more than a month.
Nationwide, civil rights groups have complained the "pay or stay" system has caused jailed defendants to lose jobs, lose custody of their children and make defendants more likely to take a plea deal for time served, even if the person isn't guilty. The system also costs counties millions of dollars to house the defendants who rarely can pay jail fees for their stays.
To address the issue, the task force recommended arraignment within 24 hours of arrest and the creation of automatic release on a personal recognizance bond for most misdemeanors and nonviolent felonies.
The American Civil Liberties Union praised the task force recommendations, including those seeing to reduce jail admissions through presumption of release or jail alternatives.
“Across the state, thousands of people are separated from their families and at risk of losing their jobs and housing due to outdated, punitive practices that incarcerate individuals while they are waiting for their day in court,” ACLU executive director Dave Noble said when the recommendations were released in January.
But it’s rare for a low-risk individual to be sitting in jail on a $200 bond, said Rep. Matt Maddock, a Milford Republican and bail bondsman. Calls to abolish the system are “preposterous and dangerous," he said.
If any reforms are made, Maddock said he would be in favor of giving police and judges more discretion in the bail process. He rejected arguments that folks with lesser offenses shouldn’t have to pay bail.
“What recourse does the criminal justice system have to get people to go to court?” said Maddock, who is a former president of the Michigan Professional Bail Agent Association.
Task force weighs in
Michigan may be in a better position than most states to initiate reform because of the work done by the Michigan Task Force on Jail and Pretrial Incarceration, said Chief Justice Bridge McCormack, co-chair of the task force.
Bail reform was addressed in the final report completed with Pew Charitable Trusts, McCormack said. The reform goes hand-in-hand with changes in arrest practices and the decriminalization of some violations that land low-income, low-risk individuals in jail, she said —some of which are addressed in the latest legislative package.
The inability to pay something as simple as a traffic fine can set off a domino effect, McCormack said. The outstanding fine can lead to license suspensions, arrests for driving on a suspended license and then jail, where an individual unable to pay the initial traffic fine has little chance of making bail, she said.
“You’ve really increased your policing of citizens with the least resources and, frankly, put people in a deeper hole,” McCormack said.
Lt. Gov. Garlin Gilchrist, who co-chaired the task force with McCormack, said the task force looked at ways to “significantly” restrict the use of the money bail system in Michigan.
“What this system was seeking to accomplish was making sure people show up in court,” Gilchrist said. “The cash bail system has not been successful in this.”
In addition to arrest reforms and decriminalization initiatives, alternative options to cash bail include more personal recognizance bonds, which don’t require an upfront payment, or a voluntary text message program to remind people when they have a pending court appearance.
“There are things we can do if we can expand our policy and programmatic imaginations,” Gilchrist said.
Rep. David LaGrand, D-Grand Rapids, has proposed changes to the cash bail system for two years, but they have yet to get a committee hearing. Last year’s proposals would have created best practices for judges who are setting bonds, allowed defendants to fill out a financial disclosure form and required quarterly bail reports from district and circuit courts.
LaGrand, a former Kent County assistant prosecutor, said a large majority of people in jail pending trial are unable to make bail “based on wealth, not on risk.” Additionally, the jail stay places pressure on individuals who need to get back for jobs or their families to take a plea deal in which the sentence is time served.
“Nobody cares about guilt or innocence if they can go home,” LaGrand said. “…Incarceration is the most invasive and coercive thing the government can do.”
Other legislators prefer incremental reform.
Rep. Mike Mueller, a Linden Republican and retired sheriff’s deputy, opposes a complete elimination of the cash bail system. But he agreed that some low-level offenses — such as driving on a suspended license — need to be decriminalized
A personal recognizance bond should be the norm for nonviolent offenses, Mueller said. Like Gilchrist, he said phone-based reminders of court appearances also would be helpful.
“The judges, it should be a presumption that it’s a personal recognizance bond unless they can determine their flight risk to the community,” Mueller said.