Safe & Just Michigan - October, 2019

Clean Slate Makes Strides

Clean Slate legislation continued to make progress in the Legislature in the past month. After being announced September 9, the six-bill package of legislation was formally introduced later that month. Since then, it’s had two hearings before the House Judiciary Committee, on September 24 and on October 8.

In both hearings, public comments on the bills were overwhelmingly supportive. Most criticism about the legislation was that it didn’t go far enough, rather than it was too lenient. For instance, University of Michigan criminologist Dr. Sonja Starr presented research that showed that people who have been crime-free for five years after release from prison pose as little risk to the community — or even less risk — than someone who has never been convicted of a crime. Therefore, she said, expungements for felonies should be granted after five years. The proposals call for felonies to be expungable by petition after seven years, or to be eligible in some cases for automatic expungement after 10 years.

Objections were also raised to a component of the bills that would require people to pay back all fines and fees before they would become eligible for an automatic expungement. Criminal justice advocates said that was unfair because getting an expungement makes it easier to get a good job with a better wage, which makes paying off fines and fees easier in the first place.

As of this writing, its anticipated that the House Judiciary will take up the bills again in a committee hearing on October 29 and may at that point consider a vote on substitute legislation. This substitute is anticipated to contain changes that would be largely agreeable. Since those substitute bills aren’t yet available for viewing, it’s too early to say with certainty what the details of those changes will be or whether Safe & Just Michigan will definitely support them.

However, we are hopeful that an agreeable Clean Slate package will emerge from committee and be sent to the floor of the House for a vote of the full chamber. We believe Clean Slate could finish the legislative process by the end of the year.

Legislature Takes a Look At
Habitual Offender Sentencing

In mid-September, the ACLU of Michigan, with state Sens. Curt VanderWall (R-Ludington), Jeff Irwin (D-Ann Arbor), and Sylvia Santana (D-Detroit) announced a forthcoming bill package to reform habitual sentencing in Michigan. The proposed reforms will address four concerns related to habitual sentencing that resulted in the Criminal Justice Policy Commission (CJPC) supporting the recommendation.

While we wait for the legislation to be introduced, the evidence shows habitual offender enhancements are lengthening the prison stays of thousands of people sentenced annually.

Under Michigan’s current habitual offender law, once you have previously been convicted of one or more felonies (or attempts to commit felonies), you can be sentenced for subsequent felony charges as a “habitual offender.” A habitual offender faces sentencing enhancements — ranging from 25 percent, 50 percent, or 100 percent depending on the number of previous felony convictions — on top of any sentence they could receive for an immediate offense for which they are being convicted. The statutory maximum is also increased by this law.

The CJPC’s data is comprised of all felony convictions sentenced in Michigan from 2012-2017. In this period, there were 297,602 felony convictions sentenced in Michigan, 58.5 percent (174,038) of which were eligible for habitual offender status enhancements.

To be eligible for habitual status enhancements, the person convicted must have at least one felony conviction before the current offense. In the six years of data available, the habitual status enhancement was applied in about 30 percent of eligible cases. That is 51,790 times in the six-year period, which averages to 8,632 habitual status enhancements a year.

The average application in Michigan in the given time period is 30 percent. However, there is wide variety by county. For example, Keweenaw County did not apply the habitual status to a single conviction in the six years. Oakland County, on the other hand, applied the status to almost 72 percent (11,381) of eligible convictions.

Looking at the 12 most populous counties in Michigan, Wayne (9.9 percent), Berrien (8.1 percent) and Washtenaw (5.7 percent) counties apply habitual sentencing enhancements the least frequently. Oakland (71.8 percent), Saginaw (72.9 percent), and Muskegon (71 percent) counties apply the habitual status sentencing enhancement most frequently.

Another way to look at this is whether a county is overrepresented in its share of applying habitual offender enhancements. For instance, Oakland County has about 10 percent of all convictions that are eligible for habitual offender enhancements in the state, but it accounts for 20 percent of all habitual offender enhancements in Michigan. That means that prosecutors and judges in Oakland County are choosing to use habitual offender enhancements in a greater share of cases than in most counties in the state. Justice should not depend on the county in which a trial takes place.

Habitual offender status sentencing enhancements are increasing the length of thousands of prison sentences a year. Safe & Just Michigan supports these reforms and will have a fact sheet out soon.

Criminal Justice Policy Commission
Wraps Up Its Work

The Criminal Justice Policy Commission (CJPC), a body that had been looking into sentencing disparities and considering making recommendations about Michigan’s habitual offender sentencing enhancements, has been shelved. Despite an effort in both the Michigan House and Senate to extend the commission’s mandate at the last minute, there appeared to be no desire from the legislative leadership to give the CJPC second life.

Michigan’s CJPCC was created by Public Act 465 of 2014 with a mandate to:

“Collect, prepare, analyze, and disseminate information regarding state and local sentencing and proposed release policies and practices for felonies and the use of prisons and jails, collect and analyze information concerning how misdemeanor sentences and the detention of defendants pending trial affect local jails, conduct ongoing research regarding the effectiveness of the sentencing guidelines, and in cooperation with the Department of Corrections, collect, analyze, and compile data and make predictions regarding the populations and capacities of state and local correctional facilities, the impact of the sentencing guidelines and other laws, rules, and policies on those populations and capacities, and the effectiveness of efforts to reduce recidivism.”

Unfortunately, the enabling legislation contained a sunset provision repealing the law automatically on Sept. 30, 2019. As a result, without legislative intervention, the commission lost its mandate just before the end of that month.

During this last full meeting, the CJPC quickly voted to recommend a so-called “Gardener fix” to the Legislature. What is this fix? In short, Michigan’s habitual offender sentencing enhancement used to only be applicable to criminal events that happened during separate incidents. That changed under the Michigan Supreme Court’s People v. Gardener decision, which allowed charges arising from the same incident to count toward the designation of “habitual offender.” The Gardener fix legislatively reverses that decision, which allowed multiple convictions arising from the same criminal incident to qualify for the habitual offender enhancement.

More contentious was the attempt to get consensus on the passage of the final commission report on straddle cells. Straddle cells are convictions for which the sentencing guidelines support either a prison or an intermediate sentence. Another way of explaining them is that they are sentencing guidelines in which the lower limit of the recommended range is one year or less and the upper limit is more than eighteen months. While most of the commissioners agreed that disparities in sentencing exist, they were unable to come to a final agreement on why those disparities exist or what the best solution for those disparities might be. An agreement was made to make some modifications to the final recommendations and to reconvene only in order to take the vote to approve the final report before the end of the month.

Safe & Just Michigan fully supported the work of the CJPC, and we are disappointed that such a great bipartisan resource will no longer be available to support the work of Michigan’s Legislature.

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