A change to Michigan sentencing laws has some officials worried about the impact it may cause to jails and treatment of drug addiction.
Wexford County Sheriff Trent Taylor said he does have concerns regarding the changes and what they will mean.
“There is a kaleidoscope of concerns. I’m concerned about victims and society as a whole. Business owners, will they feel an impact? What is going to stop people from committing retail fraud,‘ Taylor said. “Giving them an appearance ticket will get them in front of a judge, but there is no fear of being confined or going to jail.‘
Taylor also said he is worried about the opportunities for inmate programming in the jail, including GED (General Educational Development), AA (Alcoholics Anonymous), NA (Narcotics Anonymous) and the MAT program (medication-assisted treatment program).
Public Act 395 of 2020 becomes law March 24. In December, changes were made to how crimes are prosecuted and sentenced in Michigan. These changes were the result of the Michigan Joint Task Force on Jail and Pretrial Incarceration. The changes also were passed with bipartisan support and signed into law by Gov. Gretchen Whitmer on Jan. 4.
For 28th Circuit Court Judge Jason Elmore, the new law lays out some interesting realizations.
Elmore said the objective of criminal sentencing is not simply punishment, but also restitution to victims, protection of society, rehabilitation and sending a message of deterrence to that defendant specifically and others generally. The Judicial Canons of Ethics provide that judges may speak, write, and teach regarding the law, legal system, and administration of justice. Elmore discussed the new law under those rules.
Crimes generally have a maximum punishment. For instance, Elmore said misdemeanors are punishable by less than a year, and felonies are punishable by more than a year. This may lead one to believe that confinement is always a possibility upon conviction.
Under the changes, however, Elmore said that is no longer correct.
Elmore also said county jails are only for felony and misdemeanor sentences of less than a year. Felony sentences are determined by the Michigan Sentencing Guidelines and the guidelines include nine grids for each class of felony. Placement on a grid is determined by scoring along two axis — one for prior criminal history and one for the characteristics of the offense, according to Elmore. The grids guide courts to a minimum range and if that minimum is for more than a year, Elmore said that time is served in state prison. A prison sentence includes a range between a minimum and the statutory maximum.
In PA 395, Elmore said, “rebuttable presumption‘ was created for nearly all misdemeanors and will include no jail or probation.
“This means that courts shall sentence defendants convicted of a misdemeanor with little more than a fine or community service. There is an exception, however, for serious misdemeanors, which includes a very short list, such as domestic violence, assault and battery, stalking, and a few others,‘ he said. “By way of example, if someone embezzles or steals from a business an amount less than $1,000, the court is told to presumptively give no jail or probation.‘
The court can depart from the limitation if it finds reasonable grounds. Elmore said that will likely be the source of appeals when used. He also said if a person does not pay the fines, the law provides that if it is due to financial hardships or inability, the court cannot impose additional sentencing.
Under PA 395, Elmore said the definition of the phrase “intermediate sanction‘ was changed. It applies to felony sentences and under sentencing guidelines an “intermediate sanction‘ cell on those grids is when the score results in a range of fewer than 18 months, according to Elmore.
Before the change, Elmore said if a convicted defendant scored less than 18 months, the law told courts that it must cap the confinement at a year in county jail. That meant 18 months did not really mean 18 months, but confinement was still an option. By changing the definition of what is an “intermediate sanction,‘ he said jail will no longer be an option for courts for many felonies as the law says courts “must‘ comply.
Again, Elmore said a jail sentence may be given if the court finds and “states on the record reasonable grounds to sentence the individual to incarceration in a county jail.‘ The law, however, gives very little guidance on what constitutes “reasonable grounds.‘
Again, Elmore said more appeals will likely debate the meaning.
Since confinement will not be available for many felonies, Elmore said the courts will only be able to issue sentences including community service, fines, house arrest, electronic monitoring, probation, and rehabilitation treatment and counseling. This will raise several questions including but not limited to how will these convicted offenders be monitored; will there be sufficient programming available locally; where does the money come from for these programs; do the options address all objectives of sentencing effectively; and is this what the citizens, residents, and businesses want?
“Only time will tell. Regardless, doing the crime will often not involve the risk of doing the time,‘ he said.
In 2020, for both Wexford and Missaukee counties, 53% of the felonies were intermediate sanction cases. On just felonies, Elmore said if the numbers remain consistent, the changes will mean that half of the defendants convicted of a felony will no longer face any confinement.
Wexford County Jail Administrator Lt. Michael McDaniel said the new changes are going to impact the facility, both negatively and positively, but it is too early to say exactly what those will be. With the prevalence of drugs and drug-related crimes, McDaniel said he doesn’t see those offenses and offenders going away, but again, he isn’t sure exactly what this will mean for the jail.