Bill Text: MI HB5080 | 2009-2010 | 95th Legislature | Introduced
Bill Title: Corrections; parole; parole guidelines provisions; revise, and revise certain aspects of parole hearings and appeals. Amends secs. 33e & 34 of 1953 PA 232 (MCL 791.233e & 791.234).
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Introduced - Dead) 2009-06-16 - Printed Bill Filed 06/12/2009 [HB5080 Detail]
Download: Michigan-2009-HB5080-Introduced.html
HOUSE BILL No. 5080
June 11, 2009, Introduced by Reps. Warren, Smith, Young and Lipton and referred to the Committee on Judiciary.
A bill to amend 1953 PA 232, entitled
"Corrections code of 1953,"
by amending sections 33e and 34 (MCL 791.233e and 791.234), section
33e as added by 1992 PA 181 and section 34 as amended by 2006 PA
167.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 33e. (1) The department shall develop parole guidelines
that
are consistent with section 33(1)(a) 33(1) and that shall
govern the exercise of the parole board's discretion pursuant to
sections 34 and 35 as to the release of prisoners on parole under
this act. The purpose of the parole guidelines shall be to assist
the parole board in making release decisions that enhance the
public safety.
(2) The parole guidelines shall do all of the following:
(a) Provide for protection of the public.
(b) Reflect a prisoner's actual current risk for reoffending.
(c) Encourage positive institutional conduct and participation
in institutional programs.
(d) Apply to all prisoners eligible for parole, including
those within the parole board's jurisdiction pursuant to section
34(7).
(3) (2) In developing the parole guidelines, the
department
shall consider factors including, but not limited to, all of the
following:
(a) The offense for which the prisoner is incarcerated at the
time of parole consideration.
(b) The prisoner's institutional program performance.
(c) The prisoner's institutional conduct.
(d) The prisoner's prior criminal record. As used in this
subdivision, "prior criminal record" means the recorded criminal
history of a prisoner, including all misdemeanor and felony
convictions, probation violations, juvenile adjudications for acts
that would have been crimes if committed by an adult, parole
failures, and delayed sentences.
(e)
Other relevant factors as determined by the department to
predict the risk of reoffending, if not otherwise prohibited by
law.
(4) The factors employed in developing parole guidelines under
subsection (3) shall be weighted according to their ability to
predict the risk of reoffending.
(5) (3)
In developing the parole guidelines, the department
may consider both of the following factors:
(a) The prisoner's statistical risk screening.
(b) The prisoner's age.
(6) (4)
The department shall ensure that the parole guidelines
do not create disparities in release decisions based on race,
color, national origin, gender, religion, or disability. In
developing the parole guidelines, no weight shall be accorded to
the fact that a prisoner eligible for parole is serving a long
indeterminate or life sentence.
(7) (5)
The department shall promulgate rules pursuant to the
administrative
procedures act of 1969, Act No. 306 of the Public
Acts
of 1969, being sections 24.201 to 24.328 of the Michigan
Compiled
Laws 1969 PA 306, MCL 24.201
to 24.328, which shall
prescribe
the parole guidelines. The department shall submit the
proposed
rules to the joint committee on administrative rules not
later
than April 1, 1994. Until the rules take effect, the director
shall
require that the parole guidelines be considered by the
parole
board in making release decisions. After the rules take
effect,
the director shall require that the parole board follow the
parole
guidelines.
(8) (6)
The parole board may depart from the parole guidelines
by denying parole to a prisoner who has a high probability of
parole as determined under the parole guidelines or by granting
parole to a prisoner who has a low probability of parole as
determined under the parole guidelines. A departure under this
subsection shall be for substantial and compelling reasons stated
in writing. The parole board shall not use a prisoner's gender,
race, ethnicity, alienage, national origin, or religion to depart
from the recommended parole guidelines. The board shall not base a
departure on a factor already taken into account by the parole
guidelines unless the board finds from facts in the record that the
factor has been given inadequate or disproportionate weight.
(9) The prisoner may appeal a denial of parole by leave to the
circuit court that imposed the sentence that the prisoner is
serving only on 1 or more of the following grounds:
(a) The prisoner scored a high probability of release on
parole, and the board departed from the parole guidelines without
substantial and compelling reasons.
(b) The denial resulted from a material mistake in the parole
guidelines scoring that the board failed to reconsider after
receiving notice from the prisoner.
(c) The denial resulted from reliance on inaccurate or
incomplete information that the board failed to reconsider after
receiving notice from the prisoner.
(10) A written notice to a prisoner stating that his or her
parole is denied shall include all of the following:
(a) A statement of the prisoner's right to appeal the denial
to the extent allowed under subsection (9).
(b) A statement of the applicable filing deadlines for filing
the appeal.
(c) A statement that the prisoner has no right to the
appointment of counsel at public expense for the appeal.
(11) (7) Not less than once every 2 years, the
department
shall review the correlation between the implementation of the
parole guidelines and the recidivism rate of paroled prisoners, and
shall submit to the joint committee on administrative rules any
proposed revisions to the administrative rules that the department
considers appropriate after conducting the review.
Sec. 34. (1) Except as provided in section 34a, a prisoner
sentenced to an indeterminate sentence and confined in a state
correctional facility with a minimum in terms of years other than a
prisoner subject to disciplinary time is subject to the
jurisdiction of the parole board when the prisoner has served a
period of time equal to the minimum sentence imposed by the court
for the crime of which he or she was convicted, less good time and
disciplinary credits, if applicable.
(2) Except as provided in section 34a, a prisoner subject to
disciplinary time sentenced to an indeterminate sentence and
confined in a state correctional facility with a minimum in terms
of years is subject to the jurisdiction of the parole board when
the prisoner has served a period of time equal to the minimum
sentence imposed by the court for the crime of which he or she was
convicted.
(3) If a prisoner other than a prisoner subject to
disciplinary time is sentenced for consecutive terms, whether
received at the same time or at any time during the life of the
original sentence, the parole board has jurisdiction over the
prisoner for purposes of parole when the prisoner has served the
total time of the added minimum terms, less the good time and
disciplinary credits allowed by statute. The maximum terms of the
sentences shall be added to compute the new maximum term under this
subsection, and discharge shall be issued only after the total of
the maximum sentences has been served less good time and
disciplinary credits, unless the prisoner is paroled and discharged
upon satisfactory completion of the parole.
(4) If a prisoner subject to disciplinary time is sentenced
for consecutive terms, whether received at the same time or at any
time during the life of the original sentence, the parole board has
jurisdiction over the prisoner for purposes of parole when the
prisoner has served the total time of the added minimum terms. The
maximum terms of the sentences shall be added to compute the new
maximum term under this subsection, and discharge shall be issued
only after the total of the maximum sentences has been served,
unless the prisoner is paroled and discharged upon satisfactory
completion of the parole.
(5) If a prisoner other than a prisoner subject to
disciplinary time has 1 or more consecutive terms remaining to
serve in addition to the term he or she is serving, the parole
board may terminate the sentence the prisoner is presently serving
at any time after the minimum term of the sentence has been served.
(6) A prisoner sentenced to imprisonment for life for any of
the following is not eligible for parole and is instead subject to
the provisions of section 44:
(a) First degree murder in violation of section 316 of the
Michigan penal code, 1931 PA 328, MCL 750.316.
(b) A violation of section 16(5) or 18(7) of the Michigan
penal code, 1931 PA 328, MCL 750.16 and 750.18.
(c) A violation of chapter XXXIII of the Michigan penal code,
1931 PA 328, MCL 750.200 to 750.212a.
(d) A violation of section 17764(7) of the public health code,
1978 PA 368, MCL 333.17764.
(e) First degree criminal sexual conduct in violation of
section 520b(2)(c) of the Michigan penal code, 1931 PA 328, MCL
750.520b.
(f) Any other violation for which parole eligibility is
expressly denied under state law.
(7) A prisoner sentenced to imprisonment for life, other than
a prisoner described in subsection (6), is subject to the
jurisdiction of the parole board and may be placed on parole
according to the conditions prescribed in subsection (8) if he or
she meets any of the following criteria:
(a) Except as provided in subdivision (b) or (c), the prisoner
has served 10 calendar years of the sentence for a crime committed
before October 1, 1992 or 15 calendar years of the sentence for a
crime committed on or after October 1, 1992.
(b) Except as provided in subsection (12), the prisoner has
served 20 calendar years of a sentence for violating or conspiring
to violate section 7401(2)(a)(i) of the public health code, 1978 PA
368, MCL 333.7401, and has another conviction for a serious crime.
(c) Except as provided in subsection (12), the prisoner has
served 17-1/2 calendar years of the sentence for violating or
conspiring to violate section 7401(2)(a)(i) of the public health
code, 1978 PA 368, MCL 333.7401, and does not have another
conviction for a serious crime.
(8) A parole granted to a prisoner under subsection (7) is
subject to the following conditions:
(a) At the conclusion of 10 calendar years of the prisoner's
sentence and thereafter as determined by the parole board until the
prisoner is paroled, discharged, or deceased, and in accordance
with the procedures described in subsection (9), 1 member of the
parole board shall interview the prisoner. The interview schedule
prescribed in this subdivision applies to all prisoners to whom
subsection (7) applies, regardless of the date on which they were
sentenced.
(b) In addition to the interview schedule prescribed in
subdivision (a), the parole board shall review the prisoner's file
at the conclusion of 15 calendar years of the prisoner's sentence
and every 5 years thereafter until the prisoner is paroled,
discharged, or deceased. A prisoner whose file is to be reviewed
under this subdivision shall be notified of the upcoming file
review at least 30 days before the file review takes place and
shall be allowed to submit written statements or documentary
evidence for the parole board's consideration in conducting the
file review.
(c)
A decision to grant or deny parole to the prisoner shall
not be made until after a public hearing held in the manner
prescribed for pardons and commutations in sections 44 and 45.
Notice of the public hearing shall be given to the sentencing
judge, or the judge's successor in office, and parole shall not be
granted if the sentencing judge, or the judge's successor in
office, files written objections to the granting of the parole
within 30 days of receipt of the notice of hearing. The written
objections shall be made part of the prisoner's file. An interview
of a prisoner who is determined to have a high probability of
release using the parole guidelines shall be recorded on audiotape,
on videotape, or by equivalent means. If parole is denied, the
record shall be maintained by the department for 6 months after the
date on which the notice of decision was mailed. If a parole
decision is the subject of an appeal, the interview shall be
transcribed and made part of the record.
(d) A parole granted under subsection (7) shall be for a
period of not less than 4 years and subject to the usual rules
pertaining to paroles granted by the parole board. A parole granted
under subsection (7) is not valid until the transcript of the
record is filed with the attorney general whose certification of
receipt of the transcript shall be returnable to the office of the
parole board within 5 days. Except for medical records protected
under section 2157 of the revised judicature act of 1961, 1961 PA
236, MCL 600.2157, the file of a prisoner granted a parole under
subsection (7) is a public record.
(9) An interview conducted under subsection (8)(a) is subject
to both of the following requirements:
(a) The prisoner shall be given written notice, not less than
30 days before the interview date, stating that the interview will
be conducted.
(b) The prisoner may be represented at the interview by an
individual of his or her choice. The representative shall not be
another prisoner. A prisoner is not entitled to appointed counsel
at public expense. The prisoner or representative may present
relevant evidence in favor of holding a public hearing as allowed
in subsection (8)(b).
(10) In determining whether a prisoner convicted of violating
or conspiring to violate section 7401(2)(a)(i) of the public health
code, 1978 PA 368, MCL 333.7401, and sentenced to imprisonment for
life before October 1, 1998 is to be released on parole, the parole
board shall consider all of the following:
(a) Whether the violation was part of a continuing series of
violations of section 7401 or 7403 of the public health code, 1978
PA 368, MCL 333.7401 and 333.7403, by that individual.
(b) Whether the violation was committed by the individual in
concert with 5 or more other individuals.
(c) Any of the following:
(i) Whether the individual was a principal administrator,
organizer, or leader of an entity that the individual knew or had
reason to know was organized, in whole or in part, to commit
violations of section 7401 or 7403 of the public health code, 1978
PA 368, MCL 333.7401 and 333.7403, and whether the violation for
which the individual was convicted was committed to further the
interests of that entity.
(ii) Whether the individual was a principal administrator,
organizer, or leader of an entity that the individual knew or had
reason to know committed violations of section 7401 or 7403 of the
public health code, 1978 PA 368, MCL 333.7401 and 333.7403, and
whether the violation for which the individual was convicted was
committed to further the interests of that entity.
(iii) Whether the violation was committed in a drug-free school
zone.
(iv) Whether the violation involved the delivery of a
controlled substance to an individual less than 17 years of age or
possession with intent to deliver a controlled substance to an
individual less than 17 years of age.
(11) Except as provided in section 34a, a prisoner's release
on parole is discretionary with the parole board. The action of the
parole board in granting a parole is appealable by the prosecutor
of the county from which the prisoner was committed or the victim
of the crime for which the prisoner was convicted. The appeal shall
be to the circuit court in the county from which the prisoner was
committed, by leave of the court.
(12) If the sentencing judge, or his or her successor in
office, determines on the record that a prisoner described in
subsection (7)(b) or (c) sentenced to imprisonment for life for
violating or conspiring to violate section 7401(2)(a)(i) of the
public health code, 1978 PA 368, MCL 333.7401, has cooperated with
law enforcement, the prisoner is subject to the jurisdiction of the
parole board and may be released on parole as provided in
subsection (7)(b) or (c) 2-1/2 years earlier than the time
otherwise indicated in subsection (7)(b) or (c). The prisoner is
considered to have cooperated with law enforcement if the court
determines on the record that the prisoner had no relevant or
useful information to provide. The court shall not make a
determination that the prisoner failed or refused to cooperate with
law enforcement on grounds that the defendant exercised his or her
constitutional right to trial by jury. If the court determines at
sentencing that the defendant cooperated with law enforcement, the
court shall include its determination in the judgment of sentence.
(13) An individual convicted of violating or conspiring to
violate section 7401(2)(a)(ii) or 7403(2)(a)(ii) of the public health
code, 1978 PA 368, MCL 333.7401 and 333.7403, before March 1, 2003
is eligible for parole after serving the minimum of each sentence
imposed for that violation or 10 years of each sentence imposed for
that violation, whichever is less.
(14) An individual convicted of violating or conspiring to
violate section 7401(2)(a)(iii) or 7403(2)(a)(iii) of the public health
code, 1978 PA 368, MCL 333.7401 and 333.7403, before March 1, 2003
is eligible for parole after serving the minimum of each sentence
imposed for that violation or 5 years of each sentence imposed for
that violation, whichever is less.
(15) An individual convicted of violating or conspiring to
violate section 7401(2)(a)(iv) or 7403(2)(a)(iv) of the public health
code, 1978 PA 368, MCL 333.7401 and 333.7403, before March 1, 2003
who is sentenced to a term of imprisonment that is consecutive to a
term of imprisonment imposed for any other violation of section
7401(2)(a)(i) to (iv) or section 7403(2)(a)(i) to (iv) is eligible for
parole after serving 1/2 of the minimum sentence imposed for each
violation of section 7401(2)(a)(iv) or 7403(2)(a)(iv). This
subsection does not apply if the sentence was imposed for a
conviction for a new offense committed while the individual is on
probation or parole.
(16) The parole board shall provide notice to the prosecuting
attorney of the county in which the individual was convicted before
granting parole to the individual under subsection (13), (14), or
(15).
(17) As used in this section:
(a) "Serious crime" means violating or conspiring to violate
article 7 of the public health code, 1978 PA 368, MCL 333.7101 to
333.7545, that is punishable by imprisonment for more than 4 years,
or an offense against a person in violation of section 83, 84, 86,
87, 88, 89, 316, 317, 321, 349, 349a, 350, 397, 520b, 520c, 520d,
520g, 529, 529a, or 530 of the Michigan penal code, 1931 PA 328,
MCL 750.83, 750.84, 750.86, 750.87, 750.88, 750.89, 750.316,
750.317, 750.321, 750.349, 750.349a, 750.350, 750.397, 750.520b,
750.520c, 750.520d, 750.520g, 750.529, 750.529a, and 750.530.
(b) "State correctional facility" means a facility that houses
prisoners
committed to the jurisdiction of the department. , and
includes
a youth correctional facility operated under section 20g
by
the department or a private vendor.
