Bill Text: MI SB0173 | 2009-2010 | 95th Legislature | Introduced
Bill Title: Criminal procedure; sentencing; sentencing individual convicted as a juvenile to imprisonment for life without parole eligibility; prohibit. Amends secs. 1 & 1b, ch. IX of 1927 PA 175 (MCL 769.1 & 769.1b).
Spectrum: Partisan Bill (Democrat 8-0)
Status: (Introduced - Dead) 2009-02-03 - Referred To Committee On Judiciary [SB0173 Detail]
Download: Michigan-2009-SB0173-Introduced.html
SENATE BILL No. 173
January 29, 2009, Introduced by Senators BRATER, SWITALSKI, SCOTT, CLARK-COLEMAN, JACOBS, HUNTER, CLARKE and THOMAS and referred to the Committee on Judiciary.
A bill to amend 1927 PA 175, entitled
"The code of criminal procedure,"
by amending sections 1 and 1b of chapter IX (MCL 769.1 and 769.1b),
section 1 as amended by 1999 PA 87 and section 1b as amended by
1998 PA 520.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER IX
Sec. 1. (1) A judge of a court having jurisdiction may
pronounce judgment against and pass sentence upon a person
convicted of an offense in that court. The sentence shall not
exceed
the sentence prescribed by law. The Except as provided in
subsection (15), the court shall sentence a juvenile convicted of
any of the following crimes in the same manner as an adult:
(a) Arson of a dwelling in violation of section 72 of the
Michigan penal code, 1931 PA 328, MCL 750.72.
(b) Assault with intent to commit murder in violation of
section 83 of the Michigan penal code, 1931 PA 328, MCL 750.83.
(c) Assault with intent to maim in violation of section 86 of
the Michigan penal code, 1931 PA 328, MCL 750.86.
(d) Attempted murder in violation of section 91 of the
Michigan penal code, 1931 PA 328, MCL 750.91.
(e) Conspiracy to commit murder in violation of section 157a
of the Michigan penal code, 1931 PA 328, MCL 750.157a.
(f) Solicitation to commit murder in violation of section 157b
of the Michigan penal code, 1931 PA 328, MCL 750.157b.
(g) First degree murder in violation of section 316 of the
Michigan penal code, 1931 PA 328, MCL 750.316.
(h) Second degree murder in violation of section 317 of the
Michigan penal code, 1931 PA 328, MCL 750.317.
(i) Kidnapping in violation of section 349 of the Michigan
penal code, 1931 PA 328, MCL 750.349.
(j) First degree criminal sexual conduct in violation of
section 520b of the Michigan penal code, 1931 PA 328, MCL 750.520b.
(k) Armed robbery in violation of section 529 of the Michigan
penal code, 1931 PA 328, MCL 750.529.
(l) Carjacking in violation of section 529a of the Michigan
penal code, 1931 PA 328, MCL 750.529a.
(2) A person convicted of a felony or of a misdemeanor
punishable by imprisonment for more than 92 days shall not be
sentenced until the court has examined the court file and has
determined that the person's fingerprints have been taken.
(3) Unless a juvenile is required to be sentenced in the same
manner as an adult under subsection (1), a judge of a court having
jurisdiction over a juvenile shall conduct a hearing at the
juvenile's sentencing to determine if the best interests of the
public would be served by placing the juvenile on probation and
committing the juvenile to an institution or agency described in
the youth rehabilitation services act, 1974 PA 150, MCL 803.301 to
803.309, or by imposing any other sentence provided by law for an
adult
offender. Except as provided in subsection subsections (5)
and (15), the court shall sentence the juvenile in the same manner
as an adult unless the court determines by a preponderance of the
evidence that the interests of the public would be best served by
placing the juvenile on probation and committing the juvenile to an
institution or agency described in the youth rehabilitation
services act, 1974 PA 150, MCL 803.301 to 803.309. The rules of
evidence do not apply to a hearing under this subsection. In making
the determination required under this subsection, the judge shall
consider all of the following, giving greater weight to the
seriousness of the alleged offense and the juvenile's prior record
of delinquency:
(a) The seriousness of the alleged offense in terms of
community protection, including, but not limited to, the existence
of any aggravating factors recognized by the sentencing guidelines,
the use of a firearm or other dangerous weapon, and the impact on
any victim.
(b) The juvenile's culpability in committing the alleged
offense, including, but not limited to, the level of the juvenile's
participation in planning and carrying out the offense and the
existence of any aggravating or mitigating factors recognized by
the sentencing guidelines.
(c) The juvenile's prior record of delinquency including, but
not limited to, any record of detention, any police record, any
school record, or any other evidence indicating prior delinquent
behavior.
(d) The juvenile's programming history, including, but not
limited to, the juvenile's past willingness to participate
meaningfully in available programming.
(e) The adequacy of the punishment or programming available in
the juvenile justice system.
(f) The dispositional options available for the juvenile.
(4) With the consent of the prosecutor and the defendant, the
court may waive the hearing required under subsection (3). If the
court waives the hearing required under subsection (3), the court
may place the juvenile on probation and commit the juvenile to an
institution or agency described in the youth rehabilitation
services act, 1974 PA 150, MCL 803.301 to 803.309, but shall not
impose any other sentence provided by law for an adult offender.
(5) If a juvenile is convicted of a violation or conspiracy to
commit a violation of section 7403(2)(a)(i) of the public health
code, 1978 PA 368, MCL 333.7403, the court shall determine whether
the best interests of the public would be served by imposing the
sentence provided by law for an adult offender, by placing the
individual on probation and committing the individual to an
institution or agency under subsection (3), or by imposing a
sentence of imprisonment for any term of years but not less than 25
years. If the court determines by clear and convincing evidence
that the best interests of the public would be served by imposing a
sentence of imprisonment for any term of years but not less than 25
years, the court may impose that sentence. In making its
determination, the court shall use the criteria specified in
subsection (3).
(6) The court shall state on the record the court's findings
of fact and conclusions of law for the probation and commitment
decision or sentencing decision made under subsection (3). If a
juvenile is committed under subsection (3) to an institution or
agency described in the youth rehabilitation services act, 1974 PA
150, MCL 803.301 to 803.309, a transcript of the court's findings
shall
be sent to the family independence agency department of human
services or county juvenile agency, as applicable.
(7) If a juvenile is committed under subsection (3) or (4) to
an institution or agency described in the youth rehabilitation
services act, 1974 PA 150, MCL 803.301 to 803.309, the written
order of commitment shall contain a provision for the reimbursement
to the court by the juvenile or those responsible for the
juvenile's support, or both, for the cost of care or service. The
amount of reimbursement ordered shall be reasonable, taking into
account both the income and resources of the juvenile and those
responsible for the juvenile's support. The amount may be based
upon the guidelines and model schedule prepared under section 18(6)
of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL
712A.18. The reimbursement provision applies during the entire
period the juvenile remains in care outside the juvenile's own home
and under court supervision. The court shall provide for the
collection of all amounts ordered to be reimbursed, and the money
collected shall be accounted for and reported to the county board
of commissioners. Collections to cover delinquent accounts or to
pay the balance due on reimbursement orders may be made after a
juvenile is released or discharged from care outside the juvenile's
own home and under court supervision. Twenty-five percent of all
amounts collected pursuant to an order entered under this
subsection shall be credited to the appropriate fund of the county
to offset the administrative cost of collections. The balance of
all amounts collected pursuant to an order entered under this
subsection shall be divided in the same ratio in which the county,
state, and federal government participate in the cost of care
outside the juvenile's own home and under county, state, or court
supervision. The court may also collect benefits paid by the
government of the United States for the cost of care of the
juvenile. Money collected for juveniles placed with or committed to
the
family independence agency department
of human services or a
county juvenile agency shall be accounted for and reported on an
individual basis. In cases of delinquent accounts, the court may
also enter an order to intercept state tax refunds or the federal
income tax refund of a child, parent, guardian, or custodian and
initiate the necessary offset proceedings in order to recover the
cost of care or service. The court shall send to the person who is
the subject of the intercept order advance written notice of the
proposed offset. The notice shall include notice of the opportunity
to contest the offset on the grounds that the intercept is not
proper because of a mistake of fact concerning the amount of the
delinquency or the identity of the person subject to the order. The
court shall provide for the prompt reimbursement of an amount
withheld in error or an amount found to exceed the delinquent
amount.
(8) If the court appoints an attorney to represent a juvenile,
an order entered under this section may require the juvenile or
person responsible for the juvenile's support, or both, to
reimburse the court for attorney fees.
(9) An order directed to a person responsible for the
juvenile's support under this section is not binding on the person
unless an opportunity for a hearing has been given and until a copy
of the order is served on the person, personally or by first-class
mail to the person's last known address.
(10) If a juvenile is placed on probation and committed under
subsection (3) or (4) to an institution or agency described in the
youth rehabilitation services act, 1974 PA 150, MCL 803.301 to
803.309, the court shall retain jurisdiction over the juvenile
while the juvenile is on probation and committed to that
institution or agency.
(11) If the court has retained jurisdiction over a juvenile
under subsection (10), the court shall conduct an annual review of
the services being provided to the juvenile, the juvenile's
placement, and the juvenile's progress in that placement. In
conducting this review, the court shall examine the juvenile's
annual report prepared under section 3 of the juvenile facilities
act, 1988 PA 73, MCL 803.223. The court may order changes in the
juvenile's placement or treatment plan including, but not limited
to, committing the juvenile to the jurisdiction of the department
of corrections, based on the review.
(12) If an individual who is under the court's jurisdiction
under section 4 of chapter XIIA of the probate code of 1939, 1939
PA 288, MCL 712A.4, is convicted of a violation or conspiracy to
commit a violation of section 7403(2)(a)(i) of the public health
code, 1978 PA 368, MCL 333.7403, the court shall determine whether
the best interests of the public would be served by imposing the
sentence provided by law for an adult offender or by imposing a
sentence of imprisonment for any term of years but not less than 25
years. If the court determines by clear and convincing evidence
that the best interests of the public would be served by imposing a
sentence of imprisonment for any term of years but not less than 25
years, the court may impose that sentence. In making its
determination, the court shall use the criteria specified in
subsection (3) to the extent they apply.
(13) If the defendant is sentenced for an offense other than a
listed
offense as defined in section 2(d)(i) 2(e)(i) to (ix) (x) and
(xi) (xii) to (xiii) (xiv) of the sex offenders
registration act, 1994
PA 295, MCL 28.722, the court shall determine if the offense is a
violation of a law of this state or a local ordinance of a
municipality of this state that by its nature constitutes a sexual
offense against an individual who is less than 18 years of age. If
so, the conviction is for a listed offense as defined in section
2(d)(x) 2(e)(xi) of the sex offenders
registration act, 1994 PA 295,
MCL 28.722, and the court shall include the basis for that
determination on the record and include the determination in the
judgment of sentence.
(14) When sentencing a person convicted of a misdemeanor
involving the illegal delivery, possession, or use of alcohol or a
controlled substance or a felony, the court shall examine the
presentence investigation report and determine if the person being
sentenced is licensed or registered under article 15 of the public
health code, 1978 PA 368, MCL 333.16101 to 333.18838. The court
shall also examine the court file and determine if a report of the
conviction upon which the person is being sentenced has been
forwarded to the department of consumer and industry services as
provided in section 16a. If the report has not been forwarded to
the
department of consumer and industry services energy, labor, and
economic growth, the court shall order the clerk of the court to
immediately prepare and forward the report as provided in section
16a.
(15) The court shall not sentence an individual who was less
than 18 years of age when the crime was committed to imprisonment
for life without parole eligibility.
Sec. 1b. (1) If a juvenile is placed on probation and
committed under section 1(3) or (4) of this chapter to an
institution or agency described in the youth rehabilitation
services act, 1974 PA 150, MCL 803.301 to 803.309, the court shall
conduct a review hearing to determine whether the juvenile has been
rehabilitated and whether the juvenile presents a serious risk to
public safety. If the court determines that the juvenile has not
been rehabilitated or that the juvenile presents a serious risk to
public safety, jurisdiction over the juvenile shall be continued or
the court may commit the juvenile to the department of corrections
as provided in this section. In making this determination, the
court shall consider the following:
(a) The extent and nature of the juvenile's participation in
education, counseling, or work programs.
(b) The juvenile's willingness to accept responsibility for
prior behavior.
(c) The juvenile's behavior in his or her current placement.
(d) The juvenile's prior record and character and his or her
physical and mental maturity.
(e) The juvenile's potential for violent conduct as
demonstrated by prior behavior.
(f) The recommendations of the institution or agency charged
with the juvenile's care for the juvenile's release or continued
custody.
(g) Other information the prosecuting attorney or juvenile may
submit.
(2) A review hearing shall be scheduled and held unless
adjourned for good cause as near as possible to, but before, the
juvenile's nineteenth birthday. If the institution or agency to
which the juvenile was committed believes that the juvenile has
been rehabilitated and that the juvenile does not present a serious
risk to public safety, that institution or agency may petition the
court to conduct a review hearing at any time before the juvenile
becomes 19 years of age or, if the court has continued jurisdiction
under subsection (1), at any time before the juvenile becomes 21
years of age.
(3) Not less than 14 days before a review hearing is to be
conducted, the prosecuting attorney, juvenile, and, if addresses
are known, the juvenile's parent or guardian shall be notified. The
notice shall state that the court may extend jurisdiction over the
juvenile and shall advise the juvenile and the juvenile's parent or
guardian of the right to legal counsel. If legal counsel has not
been retained or appointed to represent the juvenile, the court
shall appoint legal counsel and may assess the cost of providing
counsel as costs against the juvenile or those responsible for the
juvenile's support, or both, if the persons to be assessed are
financially able to comply.
(4) The institution or agency charged with the care of the
juvenile shall prepare commitment reports as provided in section 5
of the juvenile facilities act, 1988 PA 73, MCL 803.225, for use by
the court at a review hearing held under this section.
(5) The court shall conduct a final review of the juvenile's
probation and commitment under section 1(3) or (4) of this chapter
not less than 3 months before the end of the period that the
juvenile is on probation and committed to the institution or
agency. If the court determines at this review that the best
interests of the public would be served by imposing any other
sentence provided by law for an adult offender, the court may,
except as provided in subsection (8), impose the sentence. In
making its determination, the court shall consider the criteria
specified in subsection (1) and all of the following criteria:
(a) The effect of treatment on the juvenile's rehabilitation.
(b) Whether the juvenile is likely to be dangerous to the
public if released.
(c) The best interests of the public welfare and the
protection of public security.
(6) Not less than 14 days before a final review hearing under
subsection (5) is to be conducted, the prosecuting attorney,
juvenile, and, if addresses are known, the juvenile's parent or
guardian shall be notified. The notice shall state that the court
may impose a sentence upon the juvenile under subsection (5) and
shall advise the juvenile and the juvenile's parent or guardian of
the right to legal counsel. If legal counsel has not been retained
or appointed to represent the juvenile, the court shall appoint
legal counsel and may assess the cost of providing counsel as costs
against the juvenile or those responsible for the juvenile's
support, or both, if the persons to be assessed are financially
able to comply.
(7) After a sentence is imposed under subsection (1) or (5),
the juvenile shall receive credit for the period of time served on
probation and committed to an agency or institution under section
1(3) or (4) of this chapter.
(8) The court shall not sentence an individual who was less
than 18 years of age when the crime was committed to imprisonment
for life without parole eligibility.
