Safe & Just Michigan - August, 2018

Felony Firearm in Michigan:
A Case Study in
What’s Wrong with
Mandatory Minimums

Much of the national criminal justice reform conversation focuses on mandatory minimum sentences because they often result in harsh outcomes for people and our criminal justice system. Mandatory minimums require judges to impose a specific minimum prison sentence whenever someone is convicted of a given crime. This removes the judge’s ability to tailor the sentence based on the facts of the case.

Mandatory minimums also give prosecutors significant leverage in plea bargaining. The chance that a judge may decide to impose a lesser sentence if the prosecutor obtains a conviction is removed, giving defendants strong incentives to plead out in the face of guaranteed prison time.

Because mandatory minimums remove judicial discretion and require prison time, they tend to produce harsh outcomes in individual cases and often increase prison populations and sentence length overall. To counteract these trends, advocates have focused on repealing mandatory minimums.

Michigan has few mandatory minimums and none related to drug crimes. However, there are a couple mandatory minimums that have significant impacts within the current system, most notably MCL 750.227b, commonly known as “felony firearm.”

This law imposes a two-year mandatory minimum sentence for possessing a firearm when committing or attempting to commit a felony, which must be served before (not during) the sentence for the underlying felony. The mandatory minimum increases to five years if you have a prior conviction and 10 years for two or more prior convictions.
  
For example, if a person threatens another person with a gun, they can be charged with felonious assault with felony firearm because they used the gun as part of the assault. If convicted, that person would be required to serve two years in prison for the felony firearm charge, even if the judge sentenced them to probation for the assault itself.

The two-year prison term is mandatory regardless of the sentence for the felonious assault. For people with prior felony firearm convictions, the two-year prison term is in addition to the prison sentence for the new charges.

The mandatory sentence is specific to the use of a firearm. A person that did the same assault with another dangerous weapon, such as a knife, would not be subject to these additional charges and would simply serve the sentence for assault.

The felony firearm law has contributed significantly to both Michigan’s prison population and racial disparities in our criminal justice system.

In an analysis of 2013 Michigan Department of Corrections (MDOC) data, we found the following:

• Nearly a quarter of all incarcerated people serving time in April 2013, 23.2 percent (10,094 of 43,468 incarcerated people), had a sentence for felony firearm, and nearly 3,000 incarcerated people had multiple felony firearm sentences.
• At the time, this represented about 11 percent of all minimum sentences being served. Michigan annually spends approximately $35,000 to incarcerate each person it imprisons each year. We estimate the total cost of these sentences alone to be about $900 million.

With a falling prison population in the last five years, the raw numbers on felony firearm sentences are down, but they continue to be significant:

• In 2015, the House Fiscal Agency estimated that a bill giving judges discretion to impose a sentence of up to two years and whether it must be served consecutively (while leaving the other provisions in place) could eliminate the need for 2,500 prison beds.
• At the end of 2016, the longest sentence being served by 868 incarcerated people was the two-year sentences for felony firearm — meaning they were likely in prison because of the felony firearm charge. There were 317 people serving five-year sentences. (These numbers do not include others with felony firearm sentences that were not currently being served.)

The numbers with respect to racial disparities — particularly those from Wayne County (which includes Detroit) — are equally striking.

In 2013, Michigan’s prison population was about 54 percent “non-white,” but people of color were 80 percent of the people serving time for felony firearm.

Wayne County Specific Data

• 57.5 percent of the prisoners serving felony firearm sentences (5,753) were from Wayne County.
• 18.6 percent of the total sentences being served from Wayne County in 2013 were for felony firearm.
• 91 percent of the prisoners from Wayne County serving felony firearm sentences were people of color.

In the coming year, we will be working to raise public and legislator awareness of these issues and to pass legislation that gives judges discretion to impose a sentence of up to two years (or five or 10 for subsequent violations) that may be served at the same time as another sentence.

Formerly Incarcerated People Can Vote in Michigan

Formerly incarcerated people in Michigan retain their right to vote. In a number of states, people with a felony record are not eligible to vote. That is not the case in Michigan: incarcerated people are not eligible to vote only while incarcerated; this prohibition does not extend past release, even if a person is on probation or parole.

The relevant provision of the Michigan code is as follows:

A person who, in a court of this or another state or in a federal court, has been legally convicted and sentenced for a crime for which the penalty imposed is confinement in jail or prison shall not vote, offer to vote, attempt to vote, or be permitted to vote at an election while confined (see MCL 168.758b, emphasis added).
As the phrase “while confined” makes clear, this prohibition extends only to people that are currently incarcerated. Plainly, a person that has been released is no longer “confined,” even if they are on probation or parole. A person is eligible to vote the day they are released from jail or prison, even if they are on probation or parole.
 
In spite of this, it’s widely believed that a criminal record and probation or parole status disqualify a person from voting in Michigan, and voter participation among people with criminal records is low — a 2011 study found that only 25 percent of eligible people with felony records voted in 2004 and only 35 percent voted in 2008. This was about half the 66.2 percent turnout rate of the general population, according to the Michigan Secretary of State.

Voter Information

For people with criminal records that want to vote in this year’s election, the deadline to register for the general election is October 9. We recommend that people returning from prison check their voter registration status when released. That can be done on the Michigan Secretary of State website’s voter information center located at
https://webapps.sos.state.mi.us/MVIC/.

In addition, it is important to know that state ID is not required to register or to vote (see MCL 168.492a(2)). Michigan law reads:

If a person who applies in person to register to vote as provided in subsection (1) does not possess identification for election purposes, the person may sign an affidavit to that effect and be allowed to register to vote. However, a person who signs an affidavit to vote remains subject to any applicable federal identification requirements under the Help America Vote Act of 2002 until those identification requirements are satisfied.

A state ID is not required to vote on Election Day, as the Secretary of State’s website makes clear. However, Michigan does have a voter identification requirement at the polls. Voters are asked to present an acceptable photo ID such as a Michigan driver’s license or identification card.

Please note that voters who do not have an acceptable form of ID or failed to bring it with them to the polls still can vote. They simply sign an affidavit, stating that they are not in possession of a photo ID. Their ballots are included with all others and counted on Election Day.

The general election is Tuesday, Nov. 6, 2018. Due to term limits, we will be electing a new governor, attorney general, secretary of state, two-thirds of the state Senate and dozens of new state Representatives.

Continued Advocacy to Stop Proposed Medicaid Rules

In April and May, we reported that the Michigan Department of Health and Human Services (MDHHS) had proposed rules that would exclude thousands of people from work as or for a provider of Medicaid services. The original policy was proposed in October 2017 and was met with widespread opposition and subsequently withdrawn.

It appears that the revised policy, which was slated to become final on June 1 and effective on July 1, has met with a similar fate. Safe & Just Michigan and numerous organizations in Michigan continue to oppose this proposed policy.

We understand that the Medicaid division of MDHHS continues to support the implementation of a version of this policy. MDHHS may decide on whether to make further revisions to the policy within the next month. We are continuing to advocate against this policy with MDHHS and other policymakers in Lansing.

This policy will unnecessarily cost hundreds of people with criminal histories their jobs and bar thousands more from employment in health care — one of Michigan’s largest industries and a job sector that already struggles to find enough skilled workers.

We are disappointed to see that MDHHS has continued on this path and hope that continued advocacy from various stakeholders will help change its perspective.

On Monday, June 11 CAPPS launched as Safe & Just Michigan. Please visit our new website at www.safeandjustmi.org. If you would like to join Safe & Just Michigan’s efforts, please contact Laura Sager, executive director, at laura@safeandjustmi.org or sign up for our electronic communications at
https://app.etapestry.com/onlineforms/SafeandJustMichigan/signup.html.