A bipartisan group of Michigan legislators and criminal justice reform advocates announced on Sept. 18 that they will introduce legislation this week to reform a 2012 mandatory minimum sentencing law they say is ineffective, costly, and “scoops up” defendants who were never meant to be subject to the law’s enhanced sentences in the first place.
VO-4, also known as the “Four Strikes Law,” was supposed to protect Michiganders from violent, habitual criminals. Under the law, individuals with three previous felonies on their record are automatically given an enhanced 25-year sentence if charged and convicted of a fourth.
Michigan’s legislature, according to ACLU of Michigan policy counsel Kimberly Buddin, wanted to “quote-unquote protect the community” from individuals who were “doing the same thing over and over despite being given an opportunity to change.”
Instead, Buddin told Daily Kos, the law “ended up scooping up” a far wider range of individuals than intended. For example, Buddin said, a person whose last felony conviction happened 15 years ago would, if charged with felony drug possession today, be facing the prospect of serving a minimum 25-year prison sentence.
The law also unfairly penalizes offenders who are charged with multiple felonies as the result of what Buddin called “one bad night.” For example, Buddin said, a defendant might rack up multiple felony charges in a single evening for pushing someone, taking that person’s car and driving it while drunk, and subsequently crashing the car into a tree.
“That's a terrible situation,” Buddin said. “It's one night of really bad decision-making. And there should be some level of accountability there, but that person potentially could be facing up to 25 years or more behind bars for that one incident.”
Democratic state Sen. Jeff Irwin, one of the lawmakers behind the reform, told Daily Kos that the new legislation is an attempt to “dial back Michigan’s ‘lock them up and throw away the key’ policies.” And while the 2012 law was passed by a majority-Republican state legislature and signed by a Republican governor, Irwin explained that both Republicans and Democrats in today’s state legislature “have come closer together on how they view criminal justice.”
“There has been, I think, an acknowledgement on both sides of the aisle that we are spending a tremendous amount to benefit no one,” Irwin said.
While no one interviewed by Daily Kos was able to point to a specific estimate of state spending to incarcerate defendants charged under the four strikes law, Irwin explained that Michigan currently spends “about $2 billion, or 20% of the general fund, on the Department of Corrections.”
“If we save 5%, that would be $100 million” in savings, he said. Irwin added that he expects the legislation to be formally introduced on Sept. 25. In addition to the ACLU of Michigan, current supporters of the reform bill package include Just Leadership USA, Safe & Just Michigan, and the Michigan League for Public Policy.
Michigan reformers aren’t the only people who have serious issues with mandatory minimum or “enhanced” sentencing. According to a report by the National Academies Press, “Mandatory minimum sentence and three strikes laws have little or no effect on crime rates.” In fact, the report says, “the overwhelming weight of the evidence” indicates that such laws “have few if any deterrent effects.”
Marc Mauer, executive director of the nationwide Sentencing Project, agreed with that assessment. “Research on deterrence shows deterrence is a function of certainty of punishment, not severity. If you can show they’ll be apprehended some offenders will think twice, but severity, when most people don't think they'll be caught anyway, has no real effect,” he said in an interview with Daily Kos.
A November 2018 Sentencing Project paper by Mauer on the effect of long-term sentencing, including mandatory minimum or enhanced sentencing, surveyed studies which concluded that mass incarceration has produced somewhere between .25% to 5% of the drop in the U.S.’s crime rate since the early 1990s.
Just under 1.5 million Americans were imprisoned at the end of 2017 nationwide while in Michigan, 39,666 people were incarcerated—a 23% drop from the 51,544 people the state had behind bars in 2007.
In addition to being costly and ineffective, Irwin said that Michigan’s current law actually makes it harder to achieve what he said is supposed to be the system’s main focus: rehabilitation. “When you separate people for these extremely long periods of time it makes it that much more difficult to be successful in reintegrating them, and it drives the recidivism rates up,” he said.
Finally, and most damningly, advocates say that Michigan’s enhanced sentencing law has a disproportionately negative effect on people of color in the state. According to an August 2019 report by Safe & Just Michigan, roughly 53% of the people being held in Michigan Department of Corrections facilities were black.
Just Leadership USA spokesperson Hakim Crampton told Daily Kos that mandatory minimums contribute to the disproportionate incarceration of black people because “African Americans come in contact with the criminal justice system at higher rates than their white counterparts,” thanks to systemic over-policing of black communities.
Crampton added that this over-policing naturally leads to black defendants having multiple contacts with the criminal justice system and thus, multiple convictions that easily result in enhanced penalties being imposed. “The racial disparity has already begun at such an earlier age,” he said.
“The criminal justice system in America, and particularly here in Michigan, has real problems with racism and disproportionate impact,” Irwin agreed. “These [enhanced sentencing] laws have had a disproportionate impact on communities of color” in the state, he stressed.
Michigan’s enhanced sentencing law is part of the nationwide “tough on crime” movement which included mandatory minimum laws like California’s “Three Strikes” law, which was passed in 1994. But the same year Michigan passed its own version of a habitual offender law, California voters, tired of over-punishment and prison overcrowding, started the process of reforming theirs.
Dawn Wolfe is a freelance writer and journalist based in Ann Arbor, Michigan.
This post was written and reported through our Daily Kos freelance program.