Michigan prison reform faces hurdles from Democrats Whitmer and Nessel

Prison reform advocates in several states, including Michigan, are pressing for early release of some inmates during the coronavirus outbreak, citing the high number of cases in prison systems. In Michigan, a group is seeking to put the issue on the November ballot, but is facing hurdles. (Shutterstock image)

As Michigan prisons recorded nearly 4,000 inmates with COVID-19, time is running out for a ballot drive that seeks to allow early release of prisoners with “good time” behavior credits.

Now at the heart of a federal court battle that’s reached the U.S. 6th Circuit Court of Appeals, the measure would undo the 1998 Truth in Sentencing legislation that mandates Michigan inmates serve their minimum sentence regardless of their behavior in prison.

Criminal justice reform advocates say that’s a key barrier to early release of prison inmates who could be safely let out to relieve crowding during the prison system’s coronavirus outbreak.

But when the petition drive stalled for more than two months after Michigan’s March 24 shelter-in-place order, its chief backer conceded there was virtually no chance the drive could collect the 340,047 signatures state law requires to make the November ballot without being granted a time extension..

“I don’t think it’s realistic to reach that number in two or three weeks in the middle of a pandemic situation,” said Amani Sawari, the Detroit activist who launched the Michigan Prisoner Rehabilitation Credit Act petition drive along with a small band of supporters in January.

According to court documents, the drive collected 215,000 signatures before the state shutdown in March. Sawari said that could have put it on a path to meet the signature threshold.

Michigan’s Constitution spells out the number of petition signatures needed for a ballot initiative, based on the number of votes cast for governor in the previous election.

University of Michigan law professor Sam Bagenstos calls the court fight in Michigan over ballot access for a criminal justice reform measure “unprecedented in the law.”

Legal experts say the case poses a fundamental question of democratic rights, tested under the unprecedented challenges imposed by COVID-19.

But to some petition advocates, it also raises another question: Why are Whitmer and Attorney General Dana Nessel, both progressive advocates of prison reform, opposed to an extension, potentially standing in the way of this measure making its way to the ballot?

“There are really two questions here,” said University of Michigan law professor Sam Bagenstos, a specialist in constitutional and civil rights. 

“One is whether it is unconstitutional for the state to apply the standard procedure for qualifying for the ballot in the case. The first question is much easier than the second. There is a constitutional right to the ballot rooted in the (U.S. Constitution) First Amendment.

“The harder question is, what do you do about it?”

The state — defended by Nessel — has continued to challenge the group’s efforts. 

According to the lawsuit, the Secretary of State’s office told ballot backers in late March it would neither extend the deadline to collect signatures, which at the time was May 27, nor lower the number of signatures the state would require.

Plaintiffs scored a victory on June 11 when U.S. District Judge Matthew Leitman’s found that the state’s strict enforcement of ballot rules during a pandemic lockdown “severely burdened” the plaintiffs’ constitutional right under the First Amendment to collect ballot signatures.

The state responded by offering two options to the petition group. 

On June 15, the state proposed giving plaintiffs an extra 69 days to collect signatures, mirroring the length of Whitmer’s stay-at-home order that was lifted June 1. But the state noted that even if enough signatures were collected, the question would be put on the 2022 ballot, not this year’s election. 

Judge Leitman rejected it. 

The state then proposed extending the filing deadline, but only to July 6, arguing that would be the “absolute latest” the state could receive submitted petitions and still have time to verify signatures before November’s election. 

On June 23, Leitman rejected that offer as well, stating it “does not properly remedy the constitutional violation” he found in his June 11 opinion.

That prompted the state to seek help from the 6th Circuit, asking the full court to  hear its appeal, arguing that the First Amendment does not apply to state control over the ballot process.

Asked about Whitmer’s stance on the case, spokesperson Robert Leddy told Bridge in a statement: “The governor does not have power to alter the state Constitution, which she’s taken an oath to uphold and is why she’s taken the position she has in this case. Her position is not based on her views of this or any other ballot proposal.”

Ryan Jarvi, press secretary for Attorney General Nessel, said “we’re deferring comment to our clients, the Governor’s office and the (Secretary of State).”

He added: “I just wanted to note that part of the Department of Attorney General’s role is to represent other state agencies and departments as their legal counsel. The AG’s personal feelings on criminal justice reform have nothing to do with the Department’s obligation to represent our clients when they’re sued.”

The prison lawsuit is not the only case challenging the state’s strict adherence to ballot rules during the coronavirus pandemic.

A gay rights group trying to put a non-discrimination proposal before Michigan voters won’t qualify for the 2020 ballot but is now aiming for 2022 after a state judge recently ruled it deserves more time to collect signatures because of government restrictions imposed during the coronavirus pandemic.

Court of Claims Judge Cynthia Stephens ordered the state to give the Fair and Equal Michigan ballot committee 69 more days to collect signatures.

That would push the petition drive into October, disqualifying it from the November ballot because of printing deadlines.

On May 5, the 6th Circuit ruled in another case that a federal court erred when it told the state of Michigan exactly how to accommodate candidates trying to get on the August primary ballot despite the obstacles of the pandemic.

In that case, U.S. District Judge Terrence Berg had ruled the state of Michigan must give candidates more time to collect signatures and allow candidates to submit 50 percent of the required signatures.

But the 6th Circuit Berg’s order went too far in imposing specific instructions for how the state should accommodate burdens imposed by the outbreak. .

As the prison suit proceeds, prison reform advocates say the Truth in Sentencing law hamstrings what state corrections officials can do to keep prisoners and staff safe in response to COVID-19. As of Monday, MDOC reported 3,997 cases and 68 prisoner deaths.

Passed in an era where tough-on-crime policies prevailed in the administration of GOP Gov. John Engler, Truth in Sentencing mandates inmates to serve every day of their court-ordered minimum sentence in prison.

According to the Citizens Research Council of Michigan, a Lansing-based nonprofit research group, the Engler-era law resulted in a 20 percentage point drop in the state’s parole approval rate, a doubling in the number of technical rule violators returned to prison and a rise in the prison recidivism rate.

In 2009, Michigan led the nation in length of average state prison time served in a survey of 35 states.

“It’s hard to overstate the extent to which the Truth in Sentencing law has impacted MDOC’s ability to respond to COVID-19,” said John Cooper, executive director of Safe & Just Michigan, a Lansing-based nonprofit criminal justice reform advocacy group.

“I don’t support the law. I think it should be repealed.”

He said he believes Whitmer “has fairly broad authority” to suspend Truth in Sentencing under her emergency authority during the COVID-19 outbreak.

Oakland County Sheriff Michael Bouchard pushed for Truth in Sentencing in the late 1990s as a state senator. He has said he continues to back it. 

Bouchard told the Detroit News there was often “no correlation” before Truth in Sentencing between the sentence given and time served.

“Now people know that the first number they hear is at least how long the person will serve,” he said.

Still, it’s unclear whether repeal or suspension of Truth in Sentencing would dramatically alter Michigan’s prison population of 35,492 inmates.

According to Michigan prisons spokesperson Holly Kramer, 26,578 inmates had not yet served their minimum sentence. Kramer said nearly 1,600 of those have positive parole decisions and are awaiting their earliest release date. Nearly 5,000 others are serving life sentences.

Of those who had served their minimum sentence, Kramer said 1,394 were returned to prison for violating parole. MDOC paroled nearly 2,500 prisoners between March and May and has been paroling about 200 prisoners per week, Kramer said.

As activists push to put “good time” release before voters, Bagenstos, the U-M law professor, said the outcome of the lawsuit remains a mystery. 

He said he thought it is “pretty unlikely” the full Sixth Circuit will opt to hear the case. Usually, he noted, a three-judge panel will hear such appeals before a decision is made to have the entire bench consider a case.  

“The Court of Appeals could say there’s a constitutional violation here, but we are not going to say what the remedy is. At some point, there has to be an answer of what the state is going to do.”

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Comments

Don
Wed, 07/01/2020 - 8:45am

They will not reform the prison BUT they DID stop all investigation into the murdering of 12 people and the poisoning of the city of flint by Snyder!!!! Why was it stop... Snyder has some thing on the Governor and AG????

No early release.
Wed, 07/01/2020 - 8:57am

There is a minimum sentence for a reason. Why would society want the criminals released early? The time spend in prison serves two mail purposes, deterrence and to keep the general public safe from the criminals. The prison reform that should happen is forced labor by the prisoners. Brutal, hard labor for 12 hours a day would send a strong message to other would be criminals. Bring back chain gangs and force the prisoners to contribute to the society that is feeding and housing them. The food should be of the most basic to sustain life. No entertainment or workout facilities. We do need prison reform, we need to make prison extremely unpleasant and terrible that people will be terrified of going to prison.

Isreal
Thu, 07/02/2020 - 12:09pm

Have you been to prison yourself? Well I have and it sounds pretty similar to what you’re asking it to turn into. Guys are working hard labor everyday for .17 cents an hour, with the worst foods possible. I’d work 8-16 hours a day in prison caring for elderly people in an infirmary fighting for their lives. I’m just confused on where you got your facts on prison? No workout facilities? They have weights and the rest is up to you. If you look up a healthy life it involves exercise, yet you sit here and say something about prisoners not being able to workout? Pathetic.

Peggy
Thu, 07/09/2020 - 11:54am

When your child misbehaves you discipline them and when they do good you reward them. This is the same thing, you break the law you go to jail, if you do everything the right way while you are in then you should get rewarded for that by getting time off your sentence. Michigan is the only state that has stopped this and that is why we are so over crowded, it really is a no brainer.

Beverly Keenan
Wed, 07/01/2020 - 1:41pm

We have pretty well proved incarceration is not effective in retraining people. Michigan prisons warehouse twice the people that were designed to hold. The financial cost is staggering. Release non-violent prisoners. Equipt them with electronic monitoring devices. They become contributors to the economy. As it is now this population is a drag on Michigan's already fragile economy.

Ronnie k
Wed, 07/01/2020 - 2:44pm

My brother has been in for over 18 years now he has more than served his time, he did a breaking and entering and has been in way too long for something like that people are out dealing drugs getting caught people who just got out of prison and they don't get sent back, NOT RIGHT we have lost our parents and a brother and sister he needs to be home my mother just passed away and he should of been there for her the prison system is nothing but a joke if they cared so much people who are real criminals sex offenders child molesters and murderers would be behind bars but their not those people are set free walking around that is a real joke parole officers law enforcement are not doing anything about those people.

Raven
Wed, 07/01/2020 - 5:35pm

Trith in Sentencing was supposed to do away with the need for a parole board. Once a inmate reached their minimum sentence provided they had not received any major tickets they were to be released. So why exactly do we still have a parole board? Why are inmates reaching their minimum outdate, having no major tickets and still being flopped? Why did Governor Whitmer run on a platform of Prison Reform and Road Repairs and has done nothing about either platform? She had the perfect opportunity with the Covid-19 situation to advance prison reform and did absolutely nothing. What a joke.