(Source: MIRS.news, Published 05/31/2023) (MACKINAC ISLAND) – Attorney General Dana Nessel was asked by MIRS about the difference between her preemptive decision to not enforce the 1931 abortion ban back in 2022 and Livingston County Sheriff Michael Murray’s announcement that he wouldn't enforce “red flag” legislation in his county after it became law.
Her answer? Besides the fact that her promise never came to fruition, Nessel said the difference between the two is the potential impact on Michiganders.
Nessel said she saw the 1931 abortion ban as a vehicle that would have ended up costing women their lives, given the fact that the law did not provide exemptions for the health of the mother.
“What I saw happening was women getting very, very sick and women dying,” she said, “and this costing women their lives, not figuratively, but literally.”
Nessel said that in other states that have enacted abortion bans, maternal mortality rates have increased, something that she was fearful of repeating in Michigan.
“In that circumstance, I just thought I couldn't, in good conscience, enforce a law that would cause women to die,” she said.
In Murray’s case, the sheriff told Lansing’s 6 News back in April that, "If the laws stay in the current state, my officers will not enforce red flag laws; it's just that simple."
Nessel disagreed with Murray at the time, and said the extreme risk protection orders (ERPO’s) should be enforced because of their capacity to save lives.
“We're talking about preventing people from dying,” she said. “We're talking about preventing people from committing suicide. Preventing people from committing, in some cases, mass murder. Preventing people from unnecessary gun deaths.”
Nessel said as a long-time prosecutor and defense attorney, she’s “stopped counting” the number of cases where a family member or a law enforcement agent has contacted her with concern about a defendant undergoing a mental health crisis.
“They're undergoing a mental health crisis right now, and a mental health breakdown, and they have firearms,” Nessel said. “This is a recipe for disaster.”
With no legal mechanism to remove their weapons, she's had to sit with the knowledge that an individual could hurt themselves or others, especially in cases of domestic violence.
“If you are a county sheriff and you have this tool in your toolbox that allows you to temporarily remove firearms from a person who has demonstrated through a court of law, by clear and convincing evidence, that they are too mentally unstable to safely possess those firearms and that they pose a real jeopardy,” she said, “temporarily removing those guns saves lives.”
If we’re not in the business of preventing harm to people, then I don’t know what we’re doing in law enforcement, she added.
That basis was also the reason behind Nessel’s position in opposition to the creation of prison productivity credits, she told MIRS.
The bill package, led by Rep. Tyrone Carter (D-Detroit) in the House, establishes a system of “earned” time credits that would subtract days from an incarcerated individual’s sentence if they participate in educational or vocational programs, allowing some to stand before a parole board early.
Proponents of the package said it will incentivize incarcerated Michiganders to better themselves before their release date.
Nessel said there is already an over 90% participation rate in existing education programs, and there isn't a need to incentivize them further.
But regardless of participation, she said a more important concern is protecting victims, which goes against the establishment of productivity credits.
“Here's what I know about productivity credits and good time,” she said, referring to an old system of incentivizing incarcerated Michiganders with time off for good behavior. “They both require one thing, and that is lying to victims about a defendant’s sentence.”
Nessel recalled arguing a case before the Michigan Supreme Court several years ago, People v. Warren, where a defendant was not informed he was eligible for consecutive sentences before pleading guilty.
“Oddly, in that case I argued on behalf of the defendant against my own department,” she said, because a judge should never lie to a defendant about what their sentence is going to be.
“But that should hold true for victims as well,” she said, adding that a victim shouldn’t be told a defendant will receive a certain sentence and then find out later that time could be cut down.
“All victims need time to recuperate from the crime,” she said, “especially assaultive crimes.”
Under the productivity credit system, Nessel said it’s impossible to tell a victim what a defendant’s sentence will be definitively, especially without knowing how much they will participate in a credit program.
If it’s possible that a defendant’s sentence could be cut down by 20%, Nessel added that a prosecutor is likely to fashion a plea agreement or ask the judge for 20% more time.
“I want to make sure that victim is protected,” she said.
If there are legislators that believe some offenses are eligible for too much time, then the next step is to alter the sentencing guidelines, Nessel said.
“But don’t lie to victims,” she said.
Nessel added that fewer people are being sentenced to prison in Michigan than ever before, and most people who are serving time in prison are there for very violent or repeated offenses.
“To me, you still have to have a penalty associated with a crime for deterrence value,” she said.
