Bill Text: MI SB0322 | 2023-2024 | 102nd Legislature | Introduced
Bill Title: Corrections: prisoners; corrections code of 1953; amend to reflect requirement for department of corrections to provide certain notification to prisoners. Amends secs. 33e & 34 of 1953 PA 232 (MCL 791.233e & 791.234) & adds sec. 34e. TIE BAR WITH: SB 0321'23
Spectrum: Partisan Bill (Democrat 7-0)
Status: (Introduced) 2023-05-03 - Referred To Committee On Civil Rights, Judiciary, And Public Safety [SB0322 Detail]
Download: Michigan-2023-SB0322-Introduced.html
SENATE BILL NO. 322
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 amended by 2022 PA 28 and section 34 as amended by 2019 PA 14, and by adding section 34e.
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) to for both of the following:
(a) To govern the exercise of the parole board's discretion under sections 34 and 35 as to the release of prisoners on parole under this act. The purpose of the parole guidelines is to must assist the parole board in making objective, evidence-based release decisions that enhance the public safety.
(b) For use in a hearing under section 27c of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.27c.
(2) In developing the parole guidelines, the department shall consider factors including, but not limited to, 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, if not otherwise prohibited by law.
(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.
(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.
(5) The department shall promulgate rules under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, that prescribe the parole guidelines.
(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 must be for substantial and compelling objective 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.
(7) Substantial and compelling objective reasons for a departure from the parole guidelines for a prisoner with high probability of parole are limited to the following circumstances:
(a) The prisoner exhibits a pattern of ongoing behavior while incarcerated indicating that he or she the prisoner would be a substantial risk to public safety, including major misconducts or additional criminal convictions.
(b) The prisoner refuses to participate in programming ordered by the department to reduce the prisoner's risk. A prisoner may not be considered to have refused programming if unable to complete programming due to factors beyond his or her the prisoner's control.
(c) There is verified objective evidence of substantial harm to a victim that could not have been available for consideration at the time of sentencing.
(d) The prisoner has threatened harm to another person if released.
(e) There is objective evidence of post-sentencing conduct, not already scored under the parole guidelines, that the prisoner would present a high risk to public safety if paroled.
(f) The prisoner is a suspect in an unsolved criminal case that is being actively investigated.
(g) The prisoner has a pending felony charge or is subject to a detainer request from another jurisdiction.
(h) The prisoner has not yet completed programming ordered by the department to reduce the prisoner's risk, and the programming is not available in the community and the risk cannot be adequately managed in the community before completion.
(i) The release of the prisoner is otherwise barred by law.
(j) The prisoner fails to present a sufficient parole plan adequately addressing his or her the prisoner's identified risks and needs to ensure that he or she the prisoner will not present a risk to public safety if released on parole. If a prisoner is denied parole under this subdivision, the parole board must provide the prisoner a detailed explanation of the deficiencies in the parole plan so that the prisoner may address the deficiencies before his or her the prisoner's next review.
(k) The prisoner has received a psychological evaluation in the past 3 years indicating the prisoner would present a high risk to public safety if paroled.
(8) The parole board may deny parole for up to 1 year to a prisoner who was denied parole under subsection (7)(h) to allow for the completion of programming ordered by the department. A prisoner denied parole under subsection (7)(h) must receive parole consideration within 30 days after the completion of the programming.
(9) Unless a waiver is issued under subsection (10), the parole board shall conduct a review of a prisoner, except for a prisoner serving a life sentence, who has been denied parole as follows:
(a) If the prisoner scored high or average probability of parole, not less than annually.
(b) If the prisoner scored low probability of parole, not less than every 2 years until a score of high or average probability of parole is attained.
(10) The parole board may conduct a subsequent review of a prisoner, except for a prisoner serving a life sentence, not more than 5 years after the review denying the prisoner parole, if a majority of the parole board agrees to and signs a written recommendation to waive the requirements under subsection (9). A waiver under this subsection may be issued only if a majority of the parole board finds and includes a statement in the waiver that all of the following apply:
(a) The parole board had no interest in granting the prisoner parole in the review denying the prisoner parole.
(b) The parole review requirements under subsection (9) would cause additional harm to a victim of a crime for which the prisoner was committed, or to the victim's surviving family members.
(c) The harm described under subdivision (b) can be mitigated only by waiving the parole review process under subsection (9).
(d) Unique circumstances and factors contributed to the decision to deny the prisoner parole and to waive the parole review process under subsection (9).
(11) 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.
(12) By March 1 of each year, the department shall report to the standing committees of the senate and the house of representatives having jurisdiction of corrections issues all of the following information:
(a) The number of prisoners who scored high probability of parole and were granted parole during the preceding calendar year.
(b) The number of prisoners who scored high probability of parole and for whom parole was deferred to complete necessary programming during the preceding calendar year.
(c) The number of prisoners who scored high probability of parole and were incarcerated at least 6 months past their first parole eligibility date as of December 31 of the preceding calendar year.
(d) The number of prisoners who scored high probability of parole and were denied parole for a substantial and compelling objective reason, or substantial and compelling objective reasons, under subsection (7) during the preceding calendar year. This information must be provided with a breakdown of parole denials for each of the substantial and compelling objective reasons under subsection (7).
(e) The number of prisoners who scored high probability of parole and were denied parole whose controlling offense is in each of the following groups:
(i) Homicide.
(ii) Sexual offense.
(iii) An assaultive offense other than a homicide or sexual offense.
(iv) A nonassaultive offense.
(v) A controlled substance offense.
(f) Of the total number of prisoners subject to subsection (7) who scored high probability of parole and were denied parole, the number who have served the following amount of time after completing their minimum sentence:
(i) Less than 1 year.
(ii) One year or more but less than 2 years.
(iii) Two years or more but less than 3 years.
(iv) Three years or more but less than 4 years.
(v) Four or more years.
(g) The number of prisoners issued a waiver under subsection (10).
(13) The department shall immediately advise the standing committees of the senate and house of representatives having jurisdiction of corrections issues of any changes made to the scoring of the parole guidelines after December 12, 2018, including a change in the number of points that define "high probability of parole".
(14) Subsections (6), (7), and (8), as amended or added by 2018 PA 339, apply only to prisoners whose controlling offense was committed on or after December 12, 2018. Subsections (7) and (8) do not apply to a prisoner serving a life sentence, regardless of the date of his or her the prisoner's controlling offense.
Sec. 34. (1) Except for a prisoner granted parole under section 35(10) or 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 the prisoner was convicted, less good time and disciplinary credits, if applicable.
(2) Except for a prisoner granted parole under section 35(10) or 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 the prisoner was convicted.
(3) Except for a prisoner granted parole under section 35(10), 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 must be added to compute the new maximum term under this subsection, and discharge must 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) Except for a prisoner granted parole under section 35(10), 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 must be added to compute the new maximum term under this subsection, and discharge must 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 the prisoner 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 Except as provided under sections 27a to 27h of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.27c, 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 or 44a:
(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) Except for a prisoner granted parole under section 35(10), 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 the prisoner 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 attempting 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 attempting 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 must be notified of the upcoming file review at least 30 days before the file review takes place and must 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 must 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 must be given to the sentencing judge, or the judge's successor in office. Parole must not be granted if the sentencing judge files written objections to the granting of the parole within 30 days of receipt of the notice of hearing, but the sentencing judge's written objections bar the granting of parole only if the sentencing judge is still in office in the court before which the prisoner was convicted and sentenced. A sentencing judge's successor in office may file written objections to the granting of parole, but a successor judge's objections must not bar the granting of parole under subsection (7). If written objections are filed by either the sentencing judge or the judge's successor in office, the objections must be made part of the prisoner's file.
(d) A parole granted under subsection (7) must 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 must be returned 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 must 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 the prisoner's choice. The representative must 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)(c).
(10) In determining whether a prisoner convicted of violating, or attempting 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 subsection (19) and 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 must 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 the judge's 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 attempting 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 the defendant's 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) Except for a prisoner granted parole under section 35(10) and notwithstanding subsections (1) and (2), a prisoner convicted of violating, or attempting or conspiring to violate, section 7401(2)(a)(i) or 7403(2)(a)(i) of the public health code, 1978 PA 368, MCL 333.7401 and 333.7403, whose offense occurred before March 1, 2003, and who was sentenced to a term of years, is eligible for parole after serving 20 years of the sentence imposed for the violation if the individual has another serious crime or 17-1/2 years of the sentence if the individual does not have another conviction for a serious crime, or after serving the minimum sentence imposed for that violation, whichever is less.
(14) Except for a prisoner granted parole under section 35(10) and notwithstanding subsections (1) and (2), a prisoner who was convicted of violating, or attempting 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, whose offense occurred before March 1, 2003, and who was sentenced according to those sections as they existed 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.
(15) Except for a prisoner granted parole under section 35(10) and notwithstanding subsections (1) and (2), a prisoner who was convicted of violating, or attempting 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, whose offense occurred before March 1, 2003, and who was sentenced according to those sections as they existed 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.
(16) Except for a prisoner granted parole under section 35(10) and notwithstanding subsections (1) and (2), a prisoner who was convicted of violating, or attempting 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, whose offense occurred before March 1, 2003, who was sentenced according to those sections of law as they existed before March 1, 2003 to consecutive terms of imprisonment for 2 or more violations of section 7401(2)(a) or 7403(2)(a) of the public health code, 1978 PA 368, MCL 333.7401 and 333.7403, 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) of the public health code, 1978 PA 368, MCL 333.7401 and 333.7403. This subsection applies only to sentences imposed for violations of section 7401(2)(a)(iv) or 7403(2)(a)(iv) of the public health code, 1978 PA 368, MCL 333.7401 and 333.7403, and does not apply if the sentence was imposed for a conviction for a new offense committed while the individual was on probation or parole.
(17) Except for a prisoner granted parole under section 35(10) and notwithstanding subsections (1) and (2), a prisoner who was convicted of violating, or attempting or conspiring to violate, section 7401(2)(a)(ii) or (iii) or 7403(2)(a)(ii) or (iii) of the public health code, 1978 PA 368, MCL 333.7401 and 333.7403, who had a prior conviction for a violation of section 7401(2)(a)(ii) or (iii) or 7403(2)(a)(ii) or (iii) of the public health code, 1978 PA 368, MCL 333.7401 and 333.7403, and who was sentenced to life without parole under section 7413(1) of the public health code, 1978 PA 368, MCL 333.7413, according to that section as it existed before March 28, 2018 is eligible for parole after serving 5 years of each sentence imposed for that violation.
(18) The parole board shall provide notice to the prosecuting attorney of the county in which the prisoner was convicted before granting parole to the prisoner under subsection (13), (14), (15), (16), or (17) or under section 35(10). The parole board shall provide the relevant medical records to the prosecuting attorney of the county in which the prisoner was convicted for a prisoner being considered for parole under section 35(10) at the same time the parole board provides the notice required under this subsection. The parole board shall also provide notice to any known victim or, in the case of a homicide, the victim's immediate family, that it is considering a prisoner for parole under section 35(10) at the same time it provides notice to the prosecuting attorney under this subsection.
(19) The prosecuting attorney or victim or, in the case of a homicide, the victim's immediate family, may object to the parole board's decision to recommend parole by filing a motion in the circuit court in the county in which the prisoner was convicted within 30 days of receiving notice under subsection (18). Upon notification under subsection (18) and request by the victim, or, in the case of a homicide, the victim's immediate family, the prosecuting attorney must confer with the victim, or in the case of a homicide, the victim's immediate family, before making a decision regarding whether or not to object to the parole board's determination. A motion filed under this subsection must be heard by the sentencing judge or the judge's successor in office. The prosecuting attorney shall inform the parole board if a motion was filed under this subsection. A prosecutor who files a motion under this subsection may seek an independent medical examination of the prisoner being considered for parole under section 35(10). If an appeal is initiated under this subsection, a subsequent appeal under subsection (11) may not be initiated upon the granting of parole.
(20) Both of the following apply to a hearing conducted on a motion filed under subsection (19):
(a) The prosecutor and the parole board may present evidence in support of or in opposition to the determination that a prisoner is medically frail, including the results of any independent medical examination.
(b) The sentencing judge or the judge's successor shall determine whether the prisoner is eligible for parole as a result of being medically frail.
(21) The decision of the sentencing judge or the judge's successor on a motion filed under subsection (19) is binding on the parole board with respect to whether a prisoner must be considered medically frail or not. However, the decision of the sentencing judge or the judge's successor is subject to appeal by leave to the court of appeals granted to the department, the prosecuting attorney, or the victim or victim's immediate family in the case of a homicide.
(22) As used in this section:
(a) "Medically frail" means that term as defined in section 35(22).
(b) "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.
(c) "State correctional facility" means a facility that houses prisoners committed to the jurisdiction of the department.
Sec. 34e. The department shall provide notice to a prisoner whose minimum term of imprisonment is 10 or more years as provided under section 27b of chapter IX of the code of criminal procedure, 1927 PA 175, 769.27b.
Enacting section 1. This amendatory act does not take effect unless Senate Bill No. 321 of the 102nd Legislature is enacted into law.
