43,000 Michigan prisoners: Who should we cut loose first?

One reason for why prison costs have exploded in Michigan is that the state’s inmates serve longer prison terms on average than prisoners in other states.

With a bipartisan push gaining steam to reform the state's criminal justice and prison systems, two questions are worth asking: Just who occupies Michigan's 35 prisons? And should they all be behind bars?

In 2013, the most recent year made available by the state, the Michigan Department of Corrections cataloged a prison population of 43,704. More than 30,000 prisoners were in for violent crime, including murder, rape and armed robbery. Nearly 10,000 were sentenced for nonviolent offenses, including driving while intoxicated, breaking and entering and home invasion. Just over 3,300 were imprisoned for drug crimes, including dealing hard drugs like cocaine, heroin or methamphetamine.

With bipartisan momentum building for a reduction in Michigan’s prison population, the devil, as always, is in the details. Several categories of prisoners would seem prime candidates for release, including: those convicted of nonviolent property or drug crimes (a relatively small number); a larger volume of prisoners who are serving, on average, far longer prison terms than the national average, and elderly prisoners.

Michigan’s nonviolent, “non-assaultive” prison population in 2013 included 67 in prison for failure to pay child support; 277 for passing bad checks and 515 for shoplifting. There were eight in prison for prostitution and five for breaking and entering “a coin-operated device” ‒ typically, smashing a parking meter to get its coins.

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Those in for drug offenses include 169 for selling marijuana, 319 for possession of less than 25 grams of a narcotic like heroin or cocaine and 11 for possession of marijuana.

Noting it costs $35,000 a year to house a prisoner in Michigan in a $2 billion prison budget, one reform advocate said taxpayers – and politicians – ultimately will have to decide if they want to continue to foot this financial bill for this caliber of inmate.

“If you choose to use prison as a last resort for people who are dangerous to the public, then you could push Michigan's prison population way down,” said Barbara Levine of the Lansing-based Citizens Alliance on Prisons and Public Spending, or CAPPS, a nonprofit criminal justice reform advocacy group.

“There needs to be some alternative for people who are stealing or destroying property or doing drugs that may not present a threat of immediate harm. We have not been very good at developing alternatives.”

In June, CAPPS issued a blueprint for cutting Michigan's prison population by 10,000, through two dozen recommendations. They include reducing the number of offenders entering prison, reducing sentence lengths, increasing paroles and instituting earned-sentencing credits for good behavior.

Ann Arbor attorney John Shea, who sits on a state advisory panel dealing with prison reform, cautioned that drawing conclusions about criminal sentencing patterns can be deceiving, without knowing the details of each individual case. For example, someone listed as being sent to prison for pot possession could have been sentenced because he was on probation for domestic violence and failed to meet his probation schedule.

But Shea agreed with Levine that Michigan's prison population has ballooned to unreasonable levels, rising from just under 18,000 1985 to 41,000 in 1995 and peaking at more than 51,000 in 2006 before dropping to current levels. The cost of prisons as a share of the general fund budget has soared seven-fold over three decades: from 3 percent of the budget in 1980, to 21 percent in 2013.

Michigan inmates stay longer

A 2012 study by the Pew Charitable Trusts, a nonprofit public policy organization, found that violent offenders in Michigan served an average sentence length in 2009 of 7.6 years, compared with a national average of 5 years. Michigan’s property crime offenders that year served an average of 2.9 years, compared with the national average of 2.3 years.

According to MDOC, there are about 1,900 prisoners who have served their minimum sentence but were denied release by the parole board even though they qualify as a low risk to reoffend.

A 2014 report by the Council of State Governments Justice Center found that in 2012, most parole-eligible prisoners in Michigan had served 125 percent of their minimum sentence, at an additional cost of $300 million a year to state taxpayers.

Like Levine, Shea said the state's criminal justice system needs to better sort out who truly poses a risk to society. “Prison should be a place where people go because society needs protection from them,” Shea said. “I haven't heard any stories about chronic shoplifters turning into more dangerous people.”

In addition to longer sentences, Michigan mirrors much of the nation in its disproportionate incarceration of African Americans and other people of color.

According to MDOC, 54 percent of the prison population in 2013 was “non-white,” a category that is not exclusive to African Americans. Officials say the total also includes Asians, Native Americans and possibly Hispanics who self-identify as non-white.

According to the Public Policy Initiative, a Massachusetts-based nonprofit prison research organization, blacks comprised 14 percent of Michigan’s population in 2010, but 49 percent of the population in jail and state or federal prison. PPI found that blacks were incarcerated at more than six times the rate of whites, with 344 whites incarcerated per 100,000 population, compared with 588 Hispanics, 924 Native Americans and 2,169 blacks per 100,000 population.

A 2009 report on the “School-to-Prison Pipeline” by the Michigan chapter of the American Civil Liberty Union linked the color sentencing disparity in part to disportionate school suspension and expulsions of minorities, mirroring a study by the U.S. Department of Education that found black students were 3.5 times more likely than white students to be suspended or expelled. A 2005 Texas study concluded that the single greatest predictor of youth incarceration was a history of school discipline.

Progressive advocates of prison reform argue that any bipartisan effort to reduce the state’s prison population must include a comprehensive look at criminal justice practices and sentencing patterns that, consciously or not, disproportionately incarcerate black men and women.

Finding common ground

The spike in Michigan's prison population in the 1980s and 1990s paralleled a national rise in reported crime and an emerging war on drugs, as well as changes to the state's criminal justice system.

In 1992, after 38-year-old paroled rapist Leslie Allen Williams confessed to the abduction and slaying of four teenage girls in Oakland and Genesee counties, Gov. John Engler remade the prison parole board, replacing professional civil servants with political appointees. Parole rates plummeted. Adding to the incarceration rate, the state adopted tough “truth-in-sentencing” guidelines in 1998 that mandated prisoners serve at least their minimum sentence in a secure facility. The guidelines ended provisions for reduced prison terms in exchange for good behavior.

But with violent crime nearly cut in half from a peak of roughly 800 crimes per 100,000 population in 1986 to about 450 per 100,000 in 2012 ‒ and Michigan's prison population still well above 40,000 ‒ reform advocates are again pressing for change.

The issue is back on the political front after a host of reform efforts fell apart at the end of the 2014 legislative session amid opposition from GOP state Attorney General Bill Schuette. Schuette warned the proposed reforms would jeopardize public safety.

Schuette aside, prison reform is being pushed on the national stage by a rising number of conservative figures including U.S. Rep. Paul Ryan of Wisconsin, former Texas Gov. Rick Perry, billionaire industrialists Charles and David Koch and the Heritage Foundation. In Michigan, the latest reform proposals come from the GOP-controlled state House, as a national bipartisan criminal justice reform group (see accompanying story) announced its intent to lobby for reform in Michigan.

In Michigan, advocates point to other prison numbers they say underscore the need for reform. They include:

Elderly prisoners. Michigan's prison population is aging, bringing with it added costs.
According to a 2013 report by the state House Fiscal Agency, the percentage of inmates in their 50s and 60s more than tripled between 1994 and 2012, from 5.8 percent in 1994 to 18.1 percent in 2012.

The 2013 Michigan prison population included 414 prisoners age 70 to 79, with more than 2,000 in their 60s. It included 43 prisoners over age 80, most housed at Lakeland Correctional Facility in Coldwater. In its geriatric unit, inmates, many serving life sentences, shuffle around with walkers or in wheelchairs. Some need assistance to bathe or dress. Many look forward to weekly bingo sessions.

A 2010 analysis by the state Senate Fiscal Agency found that annual health care costs rise dramatically by age, from an average of $4,800 for prisoners age 35 to 39, to $9,000 for prisoners age 50 to 54, to $16,000 for prisoners age 65 to 69, to $40,000 for prisoners over 80.

According to the Michigan Department of Corrections, the 10 most costly prisoners in the state racked up an average of more than $220,000 in health care or mental health care expenses in 2013, totaling $2.2 million. A 65-year-old male, serving a term at Parnall Correctional Facility in Jackson for two counts of second-degree criminal sexual assault, topped the list at $316,420.

Before he left office in 2014, former state Rep. Haveman – who has lobbied for prison reform for years – argued that Michigan should adopt a program to allow release of some geriatric or sick prisoners, modeled after one launched in Connecticut in 2013 to move terminally ill or incapacitated prisoners to a 90-bed, state-run nursing home. The program allows the state to shift costs from its corrections budget to Medicaid.

“This could save a lot of money,” Haveman said. “What's the point of keeping all these people locked up until they die?”

The mentally ill. Approximately 20 percent – or about 8,500 inmates – have symptoms of severe mental illness, according to projections from a 2010 report to MDOC. The study was a collaboration between the University of Michigan Institute of Gerontology of the School of Public Health and the Department of Psychiatry, with the Michigan Public Health Institute conducting interviews of 618 subjects at 25 prisons.

According to the report, 65 percent experiencing severe mental illness symptoms received no mental health treatment in the previous 12 months from MDOC. It also found that 84 percent of the total prison population and 92 percent of those with severe mental illness had a history of substance abuse.

The findings on mental illness appear to be a partial legacy of Michigan's decision from 1987 to 2003 to close most of its state-run mental hospitals, in many cases releasing patients to communities ill-prepared to deal with them. Unsupervised, many stopping taking their medications and some winded up committing criminal offenses that landed them in jail or prison.

In 2014, Snyder signed legislation to expand Michigan mental health court system after a three-year study found that the courts work.

The State Administrative Corrections Office evaluated eight mental health courts and found that participants were much less likely to re-offend than than non-participants. The courts allow some defendants to be sent to mental health treatment instead of jail.

Michigan now has 20 mental health courts, 17 for adults and three for juveniles, according to Linda Burghardt, President and CEO of the Mental Health Association in Michigan.

“They are very effective,” Burghardt said.

“They should be continued, expanded, improved even more. We definitely need to expand mental health courts, divert more people from the prison system, get them treatment, get them medications that will stabilize their condition. We need to do all of that.”

Parole violators. More than 2,000 prisoners were returned to prison in 2013 as a result of “technical” parole violations, according to a report released earlier this year by CAPPS. These are prisoners released from prison after serving at least their minimum sentences but returned for violating terms of their supervision.

The CAPPS report also found that about 2,700 prisoners were sentenced to prison for either technical probation violation or probation violation. The technical parole violators were convicted of a felony and sentenced to probation instead of prison, but then sent to prison because they violated the terms of their supervision.

According to CAPPS, the violation may have involved such noncriminal conduct as changing a residence without permission or criminal behavior that was not prosecuted. Other probation violators committed a new criminal offense while under supervision, with the decision to revoke probation up to the judge. CAPPS maintains that sending parole or probation violators back to prison should be reserved for the most serious offenses.

Former Washtenaw County Circuit Court Judge Donald E. Shelton argues for substance abuse treatment rather than prison or jail for some offenders. (courtesy photo)

The drug addicted. In 2007, then-Washtenaw County Circuit Court Judge Donald E. Shelton submitted extensive research on sentencing for his master's degree thesis for Eastern Michigan University, examining 5,000 felony cases that came before him for sentencing from 1990 to 2007.

His finding: Approximately 70 percent of the felonies were somehow drug related. It found that 90 percent of felony property crimes were tied to drugs.

“By drug-related, I don't just mean possession or distribution,” said Shelton, who retired from the bench in 2014 and now directs the Criminal Justice Program at the University of Michigan-Dearborn.

“These are crimes committed while under the influence of drugs. These are crimes committed to feed an ongoing drug addiction.

“What those figures tell us is that we have a disease problem. Locking up people that have a disease has not been successful.”

Shelton contends that many of these offenders are better served by substance abuse treatment instead of jail or prison. He acknowledges this proposal would require not only a change in attitude among judges and prosecutors but also expanded treatment facilities ‒ a tall and expensive political order.

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Attorney General Schuette – who was influential in persuading legislators to reject the 2014 prison reform proposals – is standing his ground. Whether the politics of the issue will play out the same this fall remains to be seen.

AG spokeswoman Andrea Bitely issued a statement on Schuette's behalf noting that 70 percent of Michigan's prisoners are violent offenders and that 22 percent are incarcerated because they are habitual offenders. She said Schuette continues to oppose presumptive parole and “watering down” felony firearm provisions.

“Those that go to prison are the most violent of offenders, and quite often have committed previous felonies,” Bitely wrote. “As the AG has said time and time again, protecting the public is the primary purpose of our criminal justice system.”