Prosecuting Attorney Robert Stratton and Chief Assistant Prosecuting Attorney Jillian Sadler have opted to publicly respond to social media questions and comments surrounding various changes imposed by legislative criminal justice reform in the state of Michigan. In doing so, they hope to increase knowledge and transparency throughout Chippewa County.
“I have started writing some small (Facebook) posts about how the law works,” Stratton said. “The general public, unless they have been through the system, does not understand all of the components.”
When victims of criminal offenses walk into the prosecutor’s office, they are often unsure of what to expect in the courtroom.
Prosecutors sit down with victims to explain new sentencing guideline ranges, criminal justice reform, and changes to the cash bond system. Stratton has answered questions pertaining to the new reform in this Q&A.
Q: Why have there been so many state legislative changes in recent years?
A: It started back in the 90s. There were two different murders. One was up here and the other was in Wayne County. The person in this county ended up with a more severe sentence, compared to the person in Wayne County.
The legislature got involved. They decided that if you commit a crime in the Upper Peninsula (UP) and you commit the same crime in Detroit, assuming all of the records and everything is the same, everyone should end up with the exact same sentence.
Basically, they said, “Okay, we're going to create this range to help judges cater a sentence between two numbers."
Q: How does this "range" relate to current sentencing guidelines?
A: There is a sentencing guideline book (Guiduestions e to Michigan’s 2020 Jail Reforms) that was created by the state legislature.
Each crime has a letter attached. Class B Felony is high severity. B through D are considered high severity felonies. E through H are low severity felonies. Class A is the most severe.
The book breaks it down into the types of crimes committed: person, controlled substance, property, public order, public safety, etc.
Q: What would be a good example of a crime committed by an individual and the sentencing guidelines pertaining to the offense?
A: If we were to look at assault with a dangerous weapon, we would be looking at a Class F Felony. Let’s say someone were to take a baseball bat and come after someone while threatening to hurt them. They did not make contact, but they did threaten to hurt them.
That person would start off in a class F Felony. Without hitting the person at all, no prior record, and no aggravating factors, they're going to start off in what is called a zero to three grid. While it's going to show up in charging that they are charged with a four-year felony for assault with a dangerous weapon, if we were to convict them of it with no record or aggravating factors, they could only get between zero and three months in jail.
Prison would be completely off of the table. It is a little bit disingenuous to call it a four-year felony when in fact you are looking at probation.
Q: What if the person did hit the victim with the bat?
A: Let’s say they hit them with it a few times, and that person ended up going to the hospital to get a brace put on their arm. It is not a broken arm; it just hurts; and it's bleeding.
We're still in this class (Class F). Now, they may have some aggravating factors because of the fact that the victim needed medical treatment.
The offense variables might go down. If the attacker has no prior record, we're going to stay within the Class F Felony guidelines. But because medical attention was necessary, they may move down to zero to six months.
Now, the court could put the attacker in jail for zero months up to six months. You still cannot possibly go to prison on that.
Q: What if someone has a ton of criminal history and is a habitual offender?
A: Let's say someone has committed ten prior felonies, and they were convicted of those ten prior felonies. In addition to that, the victim also needed medical treatment.
That's when you would move into prior record variables. They would start at zero points of no record. Depending on how many misdemeanors and felonies they've had, and if they are on probation, parole, or bond at the time that could change.
Without doing damage, they're looking at 10 to 23 months, which means they could get 10 months in jail, 23 months in prison. If they did injure the victim, they could get 12 months in jail, 24 months in prison. If the habitual was dropped and they were convicted in trial, it could go all the way to 48 months.
Q: Do such guidelines tie your hands in a case where you believe an individual is capable of future assault?
A: Yes, that is exactly what happens.
The Class A Felony is as high as someone can get without murdering someone. This is up to life in prison. This is where criminal sexual conduct (CSC) I and armed robbery fall.
They would start off 21 to 35 months, if there were no aggravating factors and no prior history. The reality is that, without the habitual, the court can give the person no more than 35 months.
Q: What is an appropriate example?
A: We had a pretty wild case once, where the person ended up pleading to kidnapping and fourth degree CSC: Kidnapping a child and some level of sexual contact, not penetration.
Since it was a kidnapping and a life offense, it started off a Class A Felony, which makes you think the person would go away forever. Instead, by the time we looked through all of the aggravating factors and all of the past history, the actual guideline range was 51 to 85 months.
There was a little bit of history that had gone along with it. So, four to seven years is how long somebody got for kidnapping and sexually assaulting a child.
Q: Was this before or after the criminal justice reform?
A: This was before the reform. For people who fall into the zero to 18 month cells, this is what the new reform did… It actually has a presumption of no incarceration at all. No prison; no jail; just probation. CSC I is a Class A Felony offense, and that has a penetration and aggravating factor. CSC III is a Class B Felony offense. That has penetration with no aggravating factor. If you have a penetration of a 12-year-old, you're in Class A. If you have penetration of a 13-year-old, you’re in Class B. Class C is CSC second degree. Then, you have sexual touching with an aggravating factor. If they touch a 12-year-old’s private/sexual areas, over or under the clothes, they are in Class C.
Q: What is an example of jail reform guidelines pertaining to CSC offenses?
A: Say a teacher touched a student’s breasts in a forceful manner, and that student was over the age of 16.
It would be a CSC IV offense, since it was forceful. There are no aggravating factors for teachers. When that person is charged with CSC IV, the zero to three month grid is as high as they can go. However, it is CSC II if the teacher does that and the child is under the age of 13.
Q: Why are there no aggravating factors for teachers?
A: This has nothing to do with the reform. If someone wanted to look that up, it can be found in Michigan Legislature, Section: MCL 750.520e. What one would expect is MCL 750.520c. This is second degree. Say one were to forcefully touch someone over the age of 16's sexual area and they were a prison guard, it would be considered a second degree CSC offense. You would think that a teacher would fall within that, and it doesn’t.
Q: How has criminal justice reform changed a victim's rights in the state, if at all?
A: We are in a very interesting place in the state of Michigan with how victims rights versus defendants rights are handled. Every person has the right to be presumed innocent, and it is absolutely on the government to find someone guilty of a crime. We have to present all of the evidence.
Everything falls on us. It is the highest burden that exists in the world, beyond reasonable doubt, and I think that is a good thing. It has gotten to the point where it is very difficult for victims to come forward because of many of these reforms.
Q: Going back to the prior example of assault in accordance with criminal justice reform, would it be likely for the accused individual to just assume they would not be jailed?
A: A lot of cases should not result in jail. That is perfectly fine, but judges have been grappling with that forever.
As far as the cases that shouldn’t have jail, when someone threatens another with a baseball bat and it is their first time ever going through the system, they are going to get a term of probation.
Is it possible the judge could have put them in jail for that before? Yes, that zero to three month range exists. The reality is that we weren’t seeing people going to jail for that.
Now, because of the reform, we have to overcome the presumptions that even someone who has committed aggravated sexual contact doesn’t get jailed, if they fall within zero to 18 months for an initial range.
Q: You mentioned changes to how bonds are handled, how are they handled under the new reform?
A: There have been reforms in the way that bonds are handled. A lot of people are not arrested for committing some crimes.
Bonds have drastically lowered to the point where I have people charged with CSC I, not only out on bond, but going on spring break.
There has been a very big emphasis on lowering bonds. That has caused a lot of issues with victims of sexual assault or human trafficking, fearing retaliation prior to actually testifying. Cases take so long to make it through the system.
Q: What is the argument in favor of lowering cash bonds?
A: The argument is actually very legitimate. It is that people who are more indigent are punished, while presumed innocent, with a higher cash bond.
This keeps them incarcerated. Someone who is affluent is able to buy their way out of jail. That is why they want the lower bond.
The trouble is that it is putting people at risk. It is putting victims at risk, directly. We see people post cash bonds, and they still pick up files like crazy while they are out on bond. Some cut their tethers and run. We see that.
Now, all of a sudden, if there is no bond, they don’t have to post anything. They just keep going in and out of jail. You will see a lot more situations where people commit more crimes when out on bond. They are not going to care because they are just going to get right back out.
Q: What are some other questions and/or comments you are receiving on social media or via email that you would like to respond to?
A: When people see a sentence of 20 years, they want to know why that person is not serving 20 years. It is because it is all determined by the guideline range.
If they score high enough to where they go to prison, whatever that bottom number (minimum) is is what they will have to serve. Once they get to that number, the parole board (appointed by the governor) can decide whether or not the person will be released. In years past, the parole board would sit down to see how the person was doing in prison.
They would see if they were doing their classes, staying out of trouble, ticket free, and so on to ensure they are safe to return to the general public. That is not the case anymore. Once they hit their early release date, they are often automatically paroled.
Q: How do you know that many are paroling after serving their minimum sentences?
A: The reason I know this is because I charge them with possessing weapons in prison, stabbing other prisoners, stabbing officers, and possessing drugs in prison. They are still paroling. Somehow the parole board is saying they are not a danger to the public, but how can they say that when they are picking up felonies in prison? When they parole, I charge them and they end up back in prison.
Q: Is your job as a prosecutor difficult, and how does that affect you?
A: That is why we sit down with victims to explain everything. We go through this (court process) with them.
Yeah, it wears on your body. Emotionally, we all take it home. We only see the bad stuff. We never see the good stuff.
That is tough. There is no way to ever unsee child pornography. If you are prosecuting someone for child pornography, and you have to watch a little three-year-old go through that, you have to watch it. Otherwise, you cannot present it. There is no way that ever leaves your mind. The child abuse cases are definitely the worst cases.
You want those people to get life in prison. It is so hard because a lot of times these are victims who cannot advocate for themselves and cannot talk. A lot of times, I will sit down with a sexual assault victim. We will go through these guidelines and what goes into a prosecution. It is going to be painful. They understand that. We have these types of discussions. I will explain how we can counteract that. We go over the protections we have in place, but they know they are going to have to step up on that stand and deal with this. They understand that, and we do not force sexual assault victims to get up on the stand.
Q: Prosecuting Attorney Stratton, do you enjoy your job as a prosecutor?
A: Yes, because we are making a difference.
Even with our hands tied, we are still fighting. We are that one candle in the darkness keeping the rest of that darkness away. If we stop fighting and that candle goes out, there is nothing but darkness.
Q: Assistant Prosecuting Attorney Sadler, do you enjoy your job as a prosecutor?
A: I loved this job more than just about anything until 2019 when all of the different reforms started. It has been made much more difficult.
The fight is worth it. I still love it. I could just turn back time and go back to ‘19, that was amazing. Then, you actually got to hold people responsible for what they were doing. It was a lot easier to protect victims at the time. That has all gotten to be significantly more difficult.
Yes, it is absolutely still worth it.
Citizens have different thoughts about criminal justice reform and how it impacts the area in which they live. Stratton would like residents of Chippewa County to educate themselves about the state’s jail reforms and talk to their legislators. Click here to be directed to the Michigan Legislature home page.
The Guide to Michigan’s 2020 Jail Reforms can be found here.
