On July 10, the Criminal Justice Policy Commission held its monthly meeting, including a report from the PRV/Habitual Offender Subcommittee suggesting an amendment to Michigan’s habitual offender statute.

Safe & Just Michigan supports changes to the Habitual Offender statute that would result in shorter sentences. One of the main drivers of mass incarceration is length of sentence, which is multiplied every time we label someone as a habitual offender. People in Michigan prisons serve some of the longest average sentences in the country, and we believe that in order to reduce Michigan’s over-reliance on incarceration we have to address the length of sentences in our state.

Under Michigan’s current habitual offender law, once you have previously been convicted of one or more felonies (or attempts to commit felonies), you can be sentenced for subsequent felony charges as a “habitual offender.” A habitual offender faces sentencing enhancements ranging from 25 percent, 50 percent, or 100 percent depending on the number of previous felony convictions on top of any sentence they could receive for an immediate offense for which they are being convicted. The statutory maximum is also increased by this law.

Michigan’s habitual offender statute, in other words, allows prosecutors to ask our courts to lengthen prison sentences far beyond the normal sentencing guidelines for any immediate crime.

It might, at first listen, seem commonsense to subject a person who appears to commit new offenses to mandatory longer sentences. But, the number of felonies someone has been convicted of doesn’t always directly line-up with the number of criminal incidents that they have been involved in or with the amount of risk that they pose to the community.

Prior to 2008, to count towards someone being considered “habitual,” each previous crime had to take place during separate criminal incidents. In 2008, the Michigan Supreme Court ruled in People v. Gardner that, “The unambiguous statutory language of the habitual offender statute directs courts to count each separate felony conviction that preceded the sentencing offense, not the number of criminal incidents resulting in felony convictions.”

In other words, after the Gardner case, you could be declared a habitual offender if you were convicted of three or four separate felonies arising from the same incident.

Approximately 97 percent of all cases in our country are resolved through plea bargains. One of the key tools that prosecutors use to create the leverage to induce plea deals is creating charging documents that contain a large number of charges. Often there are many ways to charge the same crime or multiple crimes that can be charged in any one incident.

For instance, if you were arrested after an altercation you could be charged multiple counts of felony assault, endangerment and terroristic threats (if you had threatened them verbally). It is quite normal for charging documents to include more than two felony charges and it is common to plea to three felonies or more during the disposition of any one criminal incident in court.

The subcommittee’s immediate recommendation was to amend the statute to insist that previous crimes counted toward habitual offender status must occur in separate incidents. In essence, the sub-committee is asking for a legislative fix to reverse the People v. Gardner court decision. If this reform were enacted, Michigan’s habitual statute would ensure only those people who are involved in a string of crimes eligible for sentencing enhancements.

The next meeting of the Criminal Justice Policy Commission will be on Aug. 7, 2019.

~Josh Hoe

Policy Analyst