Michigan Task Force Calls On State To Significantly Reduce Mass Incarceration In County Jails

After months of testimony from academics, incarcerated people, law enforcement professionals, and others, a bipartisan task force in Michigan has recommended substantive changes to the state’s legal justice system, including cash bail reform and proposals to divert people living with mental illnesses away from incarceration. The recommendations also include amending state laws that jail people for driving without the proper paperwork.

Michigan’s legislature has been addressing criminal justice reform on an issue-by-issue basis, but the task force, created in April through an executive order by Governor Gretchen Whitmer, was charged with taking a holistic approach to solving the problem of mass incarceration in county jails. According to the group’s final report, released Jan. 14, the average daily population of the state’s jails was 5,700 in 1975. In 2016, that number had risen to 16,600, even though the state’s crime rate had fallen during that time and now stands at a 50-year low.

Michigan’s political leadership has been increasingly focused on catching up to the rest of the country on criminal justice reform. In May, the state passed a second package of civil asset forfeiture reforms. With reforms in 2015 and 2019, Michigan joined the 34 states that, along with the District of Columbia, have reformed their civil asset forfeiture laws since 2014. In October, Michigan passed legislation that diverts 17-year-olds into the juvenile justice system. Before that action, the state was one of only five that still automatically charged them as adults. In November, the state House passed a package of bills that would make it easier for formerly incarcerated people to expunge convictions from their record, including making expungement automatic for some past offenses.

In addition to cataloguing how many people are in Michigan jails, the task force’s 46-page report details why and how long they are there, and concrete steps that the state can take legislatively to reduce the number of people incarcerated and the length of time they spend there.

The report is also clear on the monetary, public safety, and potential legal cost of doing nothing. In 2017 alone, state taxpayers spent “at least” $478 million on county jails, excluding capital outlays for new facilities that are either under construction or have recently been approved. The report also lays out evidence that at least some of Michigan’s pretrial policies may face valid constitutional challenges and refers to research showing that even a short amount of time spent incarcerated can lead to future contact with the criminal justice system.

The report cites 18 areas that should be considered for reforms, including the state’s cash bail system, an idea that had “broad appeal” among task force members, according to Representative David LaGrand, who serves the Grand Rapids area on the west side of the state. LaGrand introduced bills to reform the state’s cash bail system in both 2018 and the current legislative session.

Specifically, the task force proposes that people who are arrested be released on their own recognizance or an unsecured bond “unless the court makes an individualized determination that the person poses a significant articulable risk of nonappearance, absconding, or causing bodily harm to another reasonably identifiable person or themselves.”

The task force’s recommendation on bail comes as the 36th District Court in Detroit faces a federal class action lawsuit by the ACLU of Michigan that also seeks bail reform. The ACLU alleges that the court’s cash bail practices constitute “a clear violation of due process and equal protection,” according to an April report on the suit by the Detroit Free Press.

Other recommendations from the task force include proposals to divert people with mental illnesses away from the jail system, limit the use of restrictive conditions for pretrial release, reduce the amount of time people incarcerated in jail spend on probation after release, and provide law enforcement officers, dispatchers, and jail officers with behavioral health crisis response training. 

LaGrand said “broadly, there’s an appetite” for addressing the task force’s proposals around driving-related offenses that lead to incarceration. Those proposals include reducing the number of driver’s license suspensions and making driving without a valid license as well as nonmoving violations, like driving without insurance, civil infractions rather than criminal. According to the report’s analysis of three years of data from 20 county jails, driving without a valid license was the third most common reason a person was incarcerated.

The task force recommends that the state stop suspending drivers’ licenses for nonpayment of fines and fees, issue summonses instead of warrants for nonpayment, and require courts to determine a defendant’s ability to pay at the time of sentencing. LaGrand, however, said he has concerns about the fines and fees proposal and a proposal to require an arraignment within 24 to 48 hours after every arrest. 

LaGrand, who worked as both a prosecutor and defense attorney before becoming a legislator, agreed that incarcerating people for failure to pay can lead to jailing them when “the only problem is they owe money.” On the other hand, he said, “if you want to punish people, fines are less intrusive than incarceration, but if people don’t pay and there’s no consequences you don’t have a working system. Some of these things are thorny and not simple.”

The task force’s report includes a set of proposals urging legislators to do far more to support crime victims. Representative Tenisha Yancey, a task force member, told The Appeal that her subgroup worked to consider the needs and concerns of crime victims. 

In a statement to the task force, however, state Attorney General Dana Nessel took issue with the report, saying that despite the group’s efforts, it still failed “to strike an appropriate balance between the impact of incarceration on offenders, the effect of reforms on the victims of crime, and the costs of those reforms to communities across this State.”

The statement goes on to say “we can never lose sight of the impact that a crime has on the victim and while we must strive for bold reform, those reforms cannot be at the expense of the individuals the system was designed to protect.”

Yancey said that because she and the attorney general served in different subgroups of the task force, she was unable to speak to Nessel’s concerns. “I would love to know more about what the issues are that she had,” Yancey said. Referring to her subgroup, she continued: “We did take victims into consideration to the point where we eliminated most crimes that had a person as a victim.” 

Despite the state’s appetite for criminal justice reform, next steps for the proposals laid out in the task force’s report remain unclear. House Speaker Lee Chatfield’s office didn’t respond to requests for comment. Senate Majority Leader Mike Shirkey’s spokesperson told The Appeal in a Jan. 22 email that “there is no timeline on action on task force recommendations,” though “criminal justice reform, in general, is a topic of interest for the Majority Leader.” 

Reform of the cash bail system in particular has the potential to become a battleground despite the “broad appeal” LaGrand said it enjoys. In response to the reform package he introduced in 2018, the Michigan Professional Bail Agents Association (MPBAA) reposted an article from the American Bail Coalition that called the bail reform bill package a “socialist-endorsed” plan “that rewards those criminally charged and dismisses victims.” 

One state representative, Matt Maddock, owns a large bail bonds business and is a past president of the MPBAA.