Prison Reform: An Idea Whose Time Has Come
September 25, 2015
It is one of the politician’s most venerable axioms: you can’t go wrong by being “tough on crime”.
For decades, Michigan’s criminal laws have provided only the maximum sentence for specific crimes, leaving circuit judges to set the minimum sentence. In theory, a convict would have to serve at least the statutory minimum time. After that, it would be up to the Michigan Parole Board to decide how much additional time he or she would spend in prison. If the board released a convict before serving the statutory maximum, the convict would not be completely free, but would be on supervised release, i.e., parole. If the convict failed to observe all of the parole conditions (or if he or she committed a new crime ), then he or she would be “flopped” – sent back to prison to serve the remainder of the original sentence.
The law allowed the Department of Corrections to effectively reduce even the minimum sentence by awarding “good time” credits to prisoners who were cooperative and behaved well in prison.
But in the 1990s, crime was on the rise, the public was agitated and politicians reacted predictably.
So, after a paroled convict’s murder of several teenaged girls made headlines in 1992, then-Governor John Engler changed the membership of the Michigan Parole Board from Civil Service employees to political appointees of the governor. It was clear to the new members that they were expected to be a lot less liberal in granting parole.
In 1994, a so-called “truth in sentencing” bill banished the awarding of “good time” credits. However, this law’s effective date was delayed until the legislature could enact sentencing guidelines
In 1998, the legislature imposed a new set of sentencing guidelines to limit circuit judges’ discretion in setting minimum sentences and “truth in sentencing” took effect. Not only was sentence reduction for good behavior eliminated; sentence increases for bad behavior were added.
The net effect of these amendments was to increase Michigan’s already swollen inmate population (A dramatic upsurge had begun in 1985 with the Blanchard Administration’s emergency prison construction, which was partly a reaction to early releases of inmates because of overcrowding).
From 1998 through 2002, the inmate count increased by roughly 1,000 a year, topping out at 50,591, then bouncing up and down through 2007, when a gradual decline began. At year end 2014, it was 43,359 .
The key to this high population was not the sentence (controlled by the judge), but the length of time actually served (controlled by the Department of Corrections). As of 2013, Michigan prison stays were 17 months higher than the national average. One consequence, probably not anticipated by the lawmakers, was an increase in the population of elderly inmates – the most expensive group because of their medical needs.
We were spending $2 billion a year on corrections; this was 21 percent of the General Fund, the highest proportion of any state.
We were spending more on prisons than on colleges and universities.
This was what “tough on crime” had created, and it was unsustainable.
So in January 2013, Gov. Snyder, Michigan Supreme Court Chief Justice Robert Young and legislative leaders of both parties got together. They recognized the seriousness of the situation, and that any fix would require political courage and a ban on “tough on crime” demagoguery. They approached the Council of State Governments, requesting that the Council’s Justice Center partner with the Michigan Law Revision Commission in analyzing Michigan’s corrections policies and the facts on the ground and come up with recommendations.
After analyzing over 7 million data records and conducting 300 interviews with prosecutors, judges, corrections officials and other criminal justice stakeholders, they reported back in May 2014. (to read the full report, go to: http://csgjusticecenter.org/wp-content/uploads/2014/05/Applying-a-JR-Approach-to-Improve-Michigans-Sentencing-System.pdf)
For the professionals who study criminal recidivism, it comes down to this: what works? Their research focused on the various methods that have been tried by state and local authorities around the nation; they examined the results of policies and programs in the field, looking for evidence of whether the specific program actually reduced recidivism.
And they found evidence.
It turns out that increasing the time served – as we did in Michigan – had no effect on recidivism. Neither did lengthening the period spent on parole or probation.
But the research also revealed methods that do reduce recidivism, for example:
Intense supervision of parolees and probationers* for briefer terms.
“Swift and sure” punishment for violations: relatively short jail stays, quickly imposed. Michigan is trying this out, experimentally, in some areas.
Evidence-based guidelines predicting whether an inmate will succeed if paroled. Mississippi, of all places, has used these to reduce the prison population without increasing recidivism.
Next, what was needed was a state legslator with the political courage to introduce bills incorporating the recommendations. And to have a chance of success, it pretty much had to be a Republican. Enter State Rep. James Haveman (R-Holland).
Elected in 2008 from a very conservative district, and with a 2012 Michigan Tea Party rating of 71%, Haveman introduced several bills which would implement a number of reforms based on the Council of State Governments’ report.
Haveman put together a broad coalition and got the bills out of committee in the House in time for potential passage in the December 2014 “lame duck” session.
And that’s when Michigan Attorney General Bill Schuette stepped up to the plate – against the reforms. In a letter e-mailed to legislators, the Attorney General wrote, “Public safety is our most important priority, and any changes to our justice system deserve careful consideration … We cannot rush legislation that would prematurely release violent criminals back into our neighborhoods.”
Schuette’s opposition, along with that of the Michigan Sheriff’s Association, finished off most of Haveman’s reform bills in the December lame duck session. And term limits finished off Haveman’s career in the State House of Representatives.
But the impetus for incarceration reform has not died. If anything, it is gaining momentum. In a rare crossing of ideological battle lines, the conservative Mackinac Center think tank has joined with the Michigan ACLU in support of the reforms designed to lower the inmate population.
A national coalition of progressive and conservative organizations, the U.S. Justice Action Network, is actively lobbying for the reforms, as well as amending Michigan’s civil forfeiture law, which allows law enforcement agencies to seize and keep assets without the owner ever being convicted of a crime.
In June, the House Committee on Criminal Justice reported out HB 4138, which incorporates a negotiated version of one of former Rep. Haveman’s proposals (he returned to testify before the committee). The bill would set up a presumption in favor of parole after serving the minimum sentence for inmates who test out as being a low risk to public safety. HB 4137, also reported out, would expand the use of “swift and sure” punishment for non-criminal violations of probation, while reducing the length of probation in certain cases.
Both bills require that those defendants who are under supervision be placed into the appropriate treatment programs to deal with their underlying problems, such as drug or alcohol addiction.
As more legislators become acquainted with evidence-based corrections, and with the governor’s support, 2015 could be the start of significant reform, and the freeing up of some of that $2 billion for other urgent needs – like roads.
* Any sentence of more than one year must be served in a state prison, and a period of supervised release from that sentence is called “parole”. A sentence of one year or less can be served in a local county jail, and a period of supervised release from that sentence is called “probation” (a judge may also sentence a defendant to probation without jail time).
Wounded Warrior, a recently published biography of former governor and Supreme Court justice John Swainson. He is also a retired Ingham County Circuit Court Judge and former legal advisor to Gov. James J. Blanchard.is the author of