Citizens Alliance on Prisons and Public Spending (CAPPS)

Criminal justice reform legislation continues to advance in the Republican-led House of Representatives, with juvenile justice and medical parole packages now pending on the House floor and HB 5273, a “judicial veto bill” awaiting action in the House Judiciary Committee. Felony firearm reform, HB 4419, voted out of committee last October, is also pending on the House floor.The Senate Government Operations Committee is expected to take up HB 4138, the presumptive parole reform bill, sometime later this spring. Senator Booher recently introduced SB 689, which requires the MDOC to house selected prisoners in county jails rather than in state correctional facilities. The bill was referred to the Senate Judiciary Committee.

Medical Parole Package (HB 5078-81)

On February 17, the House Appropriations Committee voted to approve an amended package of medical parole bills. As we noted in December, Michigan has an especially large and ever-increasing number of older prisoners because we impose a lot of very lengthy sentences and have an exceptionally long average length of stay.  In 2013, nearly 8,500 prisoners – 19 percent of the population – were age 50 or older; nearly 1,200 were 65 or older.  This proportion will inevitably continue to grow, as will spending on their medical care.

Aging prisoners are not, of course, the only ones with serious medical problems.  Anyone, regardless of their age, their offense or the length of their sentence can develop cancer or heart disease or other debilitating illnesses that require extensive and expensive treatment.

In the past, the parole board had the authority to grant medical paroles to people who were physically or mentally incapacitated.  The enactment of “truth in sentencing” legislation that requires every person to serve every day of his or her minimum sentence in a secure facility ended the practice.  As a result, the only route to release was through the long and politically difficult process of commutation.

The medical parole bills:

  • Apply to all prisoners regardless of offense.
  • Define “medically fragile” in a realistic way that allows the board to address various disabilities while keeping the potential threat to society as the core consideration.
  • Provide for appropriate involvement by prosecutors and victims.
  • Do not require public hearings at which people who are infirm, in pain or incapable of remembering what they’ve done can be questioned about their crimes.
  • Defines a medical facility.
  • Ensure that people remain under supervision until they reach what would have been their earliest parole date for the sentence they are serving.
  • Require that people who have been released continue to meet the criteria for a medical parole unless they have otherwise become eligible for parole.
  • Protect the safety of vulnerable, medically fragile parolees by requiring the board to monitor their condition and by requiring any medical facility used by the Department to ensure the safety of its residents.
  • HB 5081, which is not tie-barred to the other bills, creates a one-year misdemeanor for aiding and abetting a medical parolee to violate his or her conditions of parole

            On Feb. 17, Barbara Levine, CAPPS’s associate director of research and policy, provided the following testimony about amendments to the bills:

HB 5078

We have two concerns with Sec. (16), which now says that someone granted a medical parole "shall only be placed in a medical facility owned by the department or contracted by the department to facilitate parole under subsection (10)."

We understand that there is a debate about whether these folks are going to actually be parolees who are entitled to Medicaid.  The suggestion that a parolee could be in an MDOC medical facility seems to feed right into the assertion by federal officials that these are really prisoners, not parolees, and are therefore not entitled to Medicaid coverage.

An analogy is with parolees who are currently housed at the Detroit Reentry Center to complete programs before their release.  Although their time on parole is technically running, the people transferred there have never left MDOC custody and the facility is operated like a prison. Their health care is provided by Corizon, the MDOC health care contractor, and no one suggests that they are eligible for Medicaid like parolees who have been released to the community.

If the DOC expands its internal capacity to house medically fragile prisoners, it won't need to grant paroles.  The goal here is to be able to move people out into community placements. I’m not sure what the purpose is of suggesting medical parolees might be placed in MDOC facilities, but it seems to invite more debate that is not particularly helpful.

The second phrase limits non-MDOC placements to facilities that contract with the department.  That would seem to exclude other possible viable placements, particularly through the Veterans’ Administration but also other arrangements that might be made if spouses or parents carry the prisoner on their private insurance or prisoners themselves have pension benefits or qualify for federal benefits on their own.  None of these options may be the norm, but there is no reason to exclude them.  Even if there continues to be negotiation with the federal government over Medicaid eligibility, as soon as this legislation is enacted the parole board could start considering fragile prisoners who have alternatives to placement in a facility with an MDOC contract.

HB 5080

This bill essentially repeats the provisions of the Crime Victims Rights Act. Section (C) on page 5 gives victims 30 days from receipt of notice to request an audience with the board.  If these notices are sent promptly in the beginning of the board consideration process, they may not cause a lot of delay.  However, the section also provides for requests from victims who hadn't asked to receive notice or who otherwise didn't actually receive it but who became aware the prisoner was being considered for a medical parole.  It is not clear what the time limits are in these latter cases, that is, how long these victims have to make a request and when the time starts running.  It appears open-ended and the board has to grant these requests, so this could be a fertile source of harmful delays.

HB 5081

There continues to be three problems with this bill:

First, this criminalizes aiding and abetting conduct that is not in itself criminal.  Take, for instance, the standard prohibition on associating with a felon.  Grandpa is a medical parolee in a nursing home.  Grandson goes to visit and brings along a cousin who has a felony conviction.  Grandpa is now in violation of a parole condition.  He has not committed a new crime, his level of risk to the public has not changed and the board would probably never revoke his parole for that violation.  But Grandson has now committed a crime that carries up to a year in jail.  What exactly is achieved by criminalizing the behavior of someone who helps someone violate a non-criminal administrative rule?

Second, what kind of precedent does this set?  Why stop at medical parolees?  Why not any parolee? Or probationer for that matter?  These are misdemeanors, so more people wouldn’t go to prison.  But we could certainly clog our district courts and fill our already overcrowded jails with people who aided and abetted people to miss appointments, break curfews, drink alcohol, live in unapproved residences or otherwise violate the terms of supervision.  Why would we want to do that?

Finally, although the addition of an intent element is an improvement over the first draft, the language is not altogether clear.  The provision now penalizes:  A person who knowingly and intentionally aids or assists a parolee in violating a condition of his or her parole.  But what, exactly, does the person have to know and intend?  Take the young man who brings his cousin the felon to visit Grandpa.   Does the Grandson have to know about the parole condition and intend to violate it?  Or does he just have to know his cousin has a record and intend to bring him along?  That is, does he just have to intend his own wholly non-criminal conduct or does he have to aid Grandpa in violating parole?

These are all very thorny areas that will inevitably bring a lot of litigation that nobody needs.  We have never criminalized the behavior of people who intentionally or inadvertently help a healthy parolee violate a parole condition and there seems even less justification for adding this requirement when the parolees involved have been chosen precisely because of their extremely low risk to public safety.  We would urge you not to pursue this path.

While the House Appropriations Committee voted out the bills as amended, legislators say they intend to address these concerns on the House floor.

Judicial Veto Bill (HB 5273)

CAPPS has long worked to address the parole review procedures that have kept parolable lifers incarcerated long past their first parole eligibility date, regardless of their current risk to public safety. HB 5273, introduced by Rep. Pagel and cosponsored by Rep. Howrylak and referred to the House Judiciary Committee, would address the problem of successor judges’ vetoes of grants of parole for parolable lifers.

About a quarter of parolable lifers who the parole board is interested in taking to public hearing are vetoed, primarily by successor judges. These judges have no personal knowledge of the case and get their information primarily from prosecutors or the presentencing report. The Michigan Judges Association has expressed support for the bill.

HB 5273 amends the corrections code as follows:

Parole shall not be granted if the sentencing judge, or the judge's successor in office, files written objections to the granting of the parole within 30 days of receipt of the notice of hearing. But the sentencing judge's written objections shall bar parole only if the sentencing judge is still in office in the court before which the prisoner was convicted and sentenced. A sentencing judge's successor in office may file written objections to the granting of parole, but a successor judge's objections shall not bar the granting of parole under subsection (7). If written objections are filed by either the sentencing judge or the judge's successor in office, they shall be made part of the prisoner's file.

SB 689

Several years ago, the MDOC adopted a new policy of housing selected prisoners in county jails.  The initial Director’s Office Memorandum (DOM) provided that anyone classified at security Level 1 who was serving a flat sentence for an offense other than criminal sexual conduct could be sent to serve their time in a county jail.  As a practical matter, this limited the eligible prisoners to those serving two years for a felony firearm conviction.  Because they are not serving an indeterminate sentence, they are not subject to a parole board decision and are released when they have completed their time regardless of program participation.  However a subsequent DOM removed the flat sentence qualifier and allowed any Level 1 prisoner not a sex offender to be transferred to a county jail and left there until they were within 12 months of their earliest release date.

As a result of this policy, roughly 340 prisoners at any given time have been dispersed among 12-14 county jails that receive $35 per day per prisoner.  It is not known how these prisoners have been selected.  There is no relationship to the person’s home or county of conviction.  The jails are in counties spread across the Upper and Lower Peninsulas, though none are in Southeast Michigan where the majority of prisoners are from.  Prisoners cannot refuse these placements. 

A number of organizations, including CAPPS, the American Friends Service Committee Criminal Justice Project, the Prisons and Corrections Section of the State Bar and the Legislative Corrections Ombudsman have expressed concern about treating prisoners like short-term jail detainees.

CAPPS’s 2015 report, 10,000 fewer Michigan prisoners: Strategies to reach the goal summarized the many problems with housing state prisoners in county jail beds.  The report explains at pages 79-80 that:

While called “virtual prisons” by the MDOC, county jails are quite unlike MDOC facilities. Jails are designed for pretrial detainees and people serving sentences of less than one ear – typically 30, 60, or 90 days. They are far more restrictive than prisons that are designed for people to live in for many years, even decades. These differences include:

  • Very limited access to any sort of activities, whether educational, vocational, treatment, work or recreation. There is little for people in jail to do but pass their time in a day room watching TV or playing cards.
  • Very restricted access to the visits, mail and telephone calls that enable prisoners to maintain their relationships with family and friends. Most jails have only non-contact or video conference calls. Some place age or height restrictions on visits by children. Some allow inmates to receive only postcards, not letters. The price of telephone calls for jail inmates is higher.
  • Access to medical care, law libraries and both indoor and outdoor recreation is much more restricted in jails.
  • Possession of personal property is typically not allowed. The MDOC allows prisoners at minimum and medium security facilities to own small televisions, MP3 players, books, board games, musical instruments and craft or art supplies.

Ironically, it is those prisoners who present the fewest management problems and have earned their way down to the lowest security level within the MDOC who are required to live under these conditions.

The use of leased county jail beds reduces the need for prison beds but does not reduce the prisoner population. While the cost per jail bed is $12,775 and the cost per prisoner at a Level I prison is about $5,500 more, MDOC spending only changes substantially when whole housing units are closed and staff is reduced.  The male prisoner population has actually been declining and the MDOC is not short on beds for male prisoners. The only real justification for the “virtual prisons” is that it is a means of channeling state funds to the counties.

The new MDOC administration, under the leadership of Director Heidi Washington, has reconsidered this practice.  Although DOM 2016-24 still authorizes transfers to county jails, in recent months the number of prisoners actually serving their sentences in jails has declined substantially.  Although the total capacity available in 14 county jails is 377 beds, the number utilized in January 2016 was 249, a drop of 46 from just the preceding month. The proposed MDOC budget for Fiscal Year 2016-17 does not contain any funding for this program.

 In response, Sen. Darwin Booher, (R-Evart ) introduced Senate Bill 689 which would require the MDOC to place prisoners serving determinate sentences (i.e. felony firearm) into available county jail beds.  Participation by the counties would, of course, be optional. The counties most affected and the number of beds they have for lease are Ingham (90), Clinton (55), Jackson (50), Lenawee (40) and Clare (30).

SB 689 would enshrine in statute the notion that prisoners are a commodity to be moved around on the prisoner housing market for the benefit of county coffers.  While short-term use of jail beds might be defensible in the face of a severe prison overcrowding crisis, that is not the current situation.  Forcing the MDOC to house low security prisoners in highly restrictive conditions that are unwarranted and inappropriate so the counties can bolster their budgets is wholly indefensible.

Juvenile Justice Package

Information about the juvenile justice reform package and the Raise the Age campaign can be found at the Michigan Crime and Delinquency Council’s website. A talking points sheet and list of bills can be found at http://www.miccd.org/wp-content/uploads/2015/10/MI-Youth-in-Prison-Legislative-Package-Overview2.pdf

For more information about these bills, go to www.Michiganlegislature.org or to www.capps-mi.org.

CAPPS Will Cohost Guest Lectures by Author Professor Marie Gottschalk
April 13-14

CAPPS is joining with the Ford School of Public Policy and Michigan State University to host two guest lectures by Prof. Marie Gottschalk, the widely acclaimed author of “Caught: The prison state and the lockdown of American politics”. Professor Gottschalk is a professor of political science at the University of Pennsylvania. A former editor and journalist, she was a member of the National Academy of Sciences Committee on the Causes and Consequences of High Rates of Incarceration. More information about these events will be coming soon but save these times and dates: 4 PM, Wednesday, April 13, Ford School of Public Policy, Annenberg Auditorium, Ann Arbor; 2 PM, Thursday, April 14, Michigan State University College of Law, East Lansing.

Princeton University press, writes “The huge prison buildup of the past four decades has few defenders today, yet reforms to reduce the number of people in U.S. jails and prisons have been remarkably modest. Meanwhile, a carceral state has sprouted in the shadows of mass imprisonment, extending its reach far beyond the prison gate. It includes not only the country’s vast archipelago of jails and prisons but also the growing range of penal punishments and controls that lie in the never-never land between prison and full citizenship, from probation and parole to immigrant detention, felon disenfranchisement, and extensive lifetime restrictions on sex offenders. As it sunders families and communities and reworks conceptions of democracy, rights, and citizenship, this ever-widening carceral state poses a formidable political and social challenge.

In this book, Marie Gottschalk examines why the carceral state, with its growing number of outcasts, remains so tenacious in the United States. She analyzes the shortcomings of the two dominant penal reform strategies—one focused on addressing racial disparities, the other on seeking bipartisan, race-neutral solutions centered on reentry, justice reinvestment, and reducing recidivism.

In this bracing appraisal of the politics of penal reform, Gottschalk exposes the broader pathologies in American politics that are preventing the country from solving its most pressing problems, including the stranglehold that neoliberalism exerts on public policy. She concludes by sketching out a promising alternative path to begin dismantling the carceral state.”

What the reviewers are saying about Caught:

"Marie Gottschalk's commanding and disturbing Caught is our best guide to the political decisions and public policies that have created the carceral state and our present immobility on the issue of crime and its punishment. Caught is that relatively rare academic book that hopes to move both public debate and policy."--Michael Meranze, Los Angeles Review of Books

"[D]evastatingly persuasive. . . . Caught proves not only an authoritative companion to the criminal justice system crises you know, but also a thorough compendium of the crises you've never even considered."--Stephen Lurie, Los Angeles Review of Books

by Laura Sager, Executive Director
Citizens Alliance on Prisons and Public Spending

The Citizens Alliance on Prisons and Public Spending (CAPPS) is a non-profit public policy organization. We are concerned about Michigan’s excessive use of punitive strategies rather than preventive ones to deal with crime and its impact on our quality of life. CAPPS advocates re-examining those policies and shifting our resources to services that prevent crime, rehabilitate offenders and address the needs of all our citizens in a cost-effective manner. For more information about CAPPS’s research, recommendations, or to get involved, please go to the CAPPS website at www.capps-mi.org or email Laura Sager, executive director, at capps@capps-mi.org.

For more information about how you can support CAPPS’s efforts, please contact Judi Miller, jmmiller.capps@gmail.com. You can also select “Join” on the CAPPS website home page in the upper right corner.