Dennis M. Haffey is an attorney who has litigated in Michigan courts for over 40 years as a member of Dykema, a national law firm headquartered in Detroit.
Levels of incarceration in local jails have been declining, and changes in the law will reduce future incarceration levels even more. So perhaps the design of the new Wayne County jail should be reconsidered, since the current design would expand the number of inmate beds beyond current incarceration levels, instead of reducing them.
Wayne County plans to spend $533 million to build a new jail, with 2,280 beds for adult inmates. But average daily inmate population has been in decline, from 2,200 in 2014 to 1,700 today. That pattern of decline alone may mean that 2,280 is too many beds.
But new laws enacting criminal justice reforms, perhaps not foreseeable when the new jail was designed, will reduce future incarceration levels even more. Here are a few examples.
1. Marijuana Decriminalization: Michigan just decriminalized use of marijuana, and a system of legal distribution through licensed dispensaries is being developed. That will reduce if not eliminate prosecutions for possession and sale, which have contributed to mass incarceration, disproportionately of poor, urban black people. Michelle Alexander’s book, “The New Jim Crow,” describes how marijuana prosecution has caused high incarceration levels and devastated poor, black communities.
2. Reform Of Cash Bail System: Bipartisan bills are pending in the Michigan legislature to reform the cash bail system, to ensure that those jailed pretrial are only inmates who pose a danger to society or are a flight risk. No one should be jailed before trial (when they have not been convicted and enjoy a presumption of innocence) solely due to financial inability to pay bail. Yet, according to the Detroit Justice Center, 62% of those in the Wayne County jail on any given day are being held pretrial, most often because they cannot afford to pay bail. Under the proposed new bills, requiring pretrial release would be the standard and judges would be prevented from setting bail higher than the defendant’s ability to pay.
The current pretrial cash bail system discriminates against the poor, has a racially disparate impact on who gets incarcerated, and wastes public resources. Pretrial prisoners who cannot pay bail face a vicious cycle – plead guilty in order to go home, but then have a permanent criminal record, or remain jailed for months while awaiting trial, risking loss of job, house, kids, etc. Wasted public resources include the cost to construct and maintain unnecessary jail capacity and approximately $75 per inmate per day to house and feed them.
3. National Trend Reducing Incarceration: Legal initiatives like Michigan’s that will reduce incarceration levels are a national trend. Other states too have decriminalized marijuana. Reform of cash bail systems is a national movement.
President Donald Trump signed bipartisan criminal reform bills in December 2018 that lowered some federal sentences, eased some mandatory minimum sentences, included programs to reduce recidivism, limited incarceration of youths for status offenses such as truancy and curfew violations, supported alternatives to incarceration, and improved treatment for youths with mental health and substance-abuse problems.
We have learned that “lock-em-up” has not worked for many societal problems, and that other solutions should be considered, such as treating mental illness and substance abuse as public health problems, not crimes. Interestingly, the current approaches to the opioid crisis focus on solutions other than jailing users.
In short, future daily jail needs in Wayne County should be less than the planned 2,280 beds. Projections of future needs should reduce today’s daily average of 1,760 inmates by at least: (a) the number of inmates held pretrial due to a financial inability to post bail, which is estimated to be most of the 62% (or 1,092 inmates) being held pretrial, because they no longer will be retained after reform of the cash bail system; (b) the estimated 25% (or 440 inmates) who are mentally ill or have substance abuse problems who should be in treatment centers, not jail; and (c) the significant number who are held for marijuana use, possession, or distribution, given decriminalization of marijuana.
A $533 million investment decision should be based on a rigorous analysis of more detailed statistics and projections, but these ballpark numbers suggest that the design be reconsidered before ground-breaking, to ensure that Wayne County is not left with excess capacity.