BillCam

HOUSE BILL No. 5377

January 10, 2018, Introduced by Reps. Kesto, Chang, Lucido, Howell, Glenn and Pagel and referred to the Committee on Law and Justice.

A bill to amend 1953 PA 232, entitled

"Corrections code of 1953,"

by amending sections 33e and 35 (MCL 791.233e and 791.235), section

33e as added by 1992 PA 181 and section 35 as amended by 2012 PA

24.

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) and that shall to govern

the exercise of the parole board's discretion pursuant to under

sections 34 and 35 as to the release of prisoners on parole under

this act. The purpose of the parole guidelines shall be is to

assist the parole board in making objective, evidence-based release

decisions that enhance the public safety.

(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.

(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 pursuant to under

the administrative procedures act of 1969, Act No. 306 of the

Public Acts of 1969 PA 306, being sections MCL 24.201 to 24.328, of

the Michigan Compiled Laws, which shall that 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.

(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 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, and shall not

use subjective reasons such as a lack of insight, insufficient

remorse, or an inadequate parole plan 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 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 control.

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 prior to completion.

(i) The release of the prisoner is otherwise barred by law.

(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) The parole board shall conduct a review of a prisoner,

except for prisoners serving a life sentence, who has been denied

parole as follows:

(a) If the prisoner scored high or average probability of

parole, conduct a review not less than annually.

(b) If the prisoner scored low probability of parole, conduct

a review not less than every 2 years until a score of high or

average probability of parole is attained.

(10) (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.

(11) 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 and the

criminal justice policy commission created under section 32a of

chapter IX of the code of criminal procedure, 1927 PA 175, MCL

769.32a, 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.

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.

(12) The department shall immediately advise the standing

committees of the senate and house of representatives having

jurisdiction of corrections issues and the criminal justice policy

commission described in subsection (11) of any changes made to the

scoring of the parole guidelines after the effective date of the

amendatory act that added this subsection, including a change in

the number of points that define "high probability of parole".

(13) Subsections (6), (7), and (8) as amended or added by the

amendatory act that added this subsection apply only to prisoners

whose controlling offense was committed on or after the effective

date of the amendatory act that added this subsection. Subsections

(7) and (8) do not apply to a prisoner serving a life sentence,

regardless of the date of his or her controlling offense.

Sec. 35. (1) The release of a prisoner on parole shall must be

granted solely upon the initiative of the parole board. There is no

entitlement to parole. The parole board may grant a parole without

interviewing the prisoner. However, beginning January 26, 1996,

the parole board may grant a parole without interviewing the

prisoner only if, after evaluating the prisoner according to the

parole guidelines, the parole board determines that the prisoner

has a high probability of being paroled and the parole board

therefore intends to parole the prisoner. Except as provided in

subsection (2), a prisoner shall must not be denied parole without

an interview before 1 member of the parole board. The interview

shall must be conducted at least 1 month before the expiration of

the prisoner's minimum sentence less applicable good time and

disciplinary credits for a prisoner eligible for good time and

disciplinary credits, or at least 1 month before the expiration of

the prisoner's minimum sentence for a prisoner subject to

disciplinary time. The parole board shall consider any statement

made to the parole board by a crime victim under the William Van

Regenmorter crime victim's rights act, 1985 PA 87, MCL 780.751 to

780.834, or under any other provision of law. The parole board

shall not consider any of the following factors in making a parole

determination:

(a) A juvenile record that a court has ordered the department

to expunge.

(b) Information that is determined by the parole board to be

inaccurate or irrelevant after a challenge and presentation of

relevant evidence by a prisoner who has received a notice of intent

to conduct an interview as provided in subsection (4). This

subdivision applies only to presentence investigation reports

prepared before April 1, 1983.

(2) Beginning January 26, 1996, if, If, after evaluating a

prisoner according to the parole guidelines, the parole board

determines that the prisoner has a low probability of being paroled

and the parole board therefore does not intend to parole the

prisoner, the parole board is not required to interview the

prisoner before denying parole to the prisoner.

(3) The parole board may consider but shall not base a

determination to deny parole solely on either of the following:

(a) A prisoner's marital history.

(b) Prior arrests not resulting in conviction or adjudication

of delinquency.

(4) If an interview is to be conducted, the prisoner shall

must be sent a notice of intent to conduct an interview at least

not less than 1 month before the date of the interview. The notice

shall must state the specific issues and concerns that shall will

be discussed at the interview and that may be a basis for a denial

of parole. A denial of The parole board shall not deny parole shall

not be based on reasons other than those stated in the notice of

intent to conduct an interview except for good cause stated to the

prisoner at or before the interview and in the written explanation

required by subsection (12). This subsection does not apply until

April 1, 1983.

(5) Except for good cause, the parole board member conducting

the interview shall not have cast a vote for or against the

prisoner's release before conducting the current interview. Before

the interview, the parole board member who is to conduct the

interview shall review pertinent information relative to the notice

of intent to conduct an interview.

(6) A prisoner may waive the right to an interview by 1 member

of the parole board. The waiver of the right to be interviewed

shall must be in writing and given not more than 30 days after the

notice of intent to conduct an interview is issued. and shall be

made in writing. During the interview held pursuant to under a

notice of intent to conduct an interview, the prisoner may be

represented by an individual of his or her choice. The

representative shall not be another prisoner or an attorney. A

prisoner is not entitled to appointed counsel at public expense.

The prisoner or representative may present relevant evidence in

support of release.

(7) At least 90 days before the expiration of the prisoner's

minimum sentence less applicable good time and disciplinary credits

for a prisoner eligible for good time or disciplinary credits, or

at least 90 days before the expiration of the prisoner's minimum

sentence for a prisoner subject to disciplinary time, or the

expiration of a 12-month continuance for any prisoner, the

appropriate institutional staff shall prepare a parole eligibility

report. shall be prepared by appropriate institutional staff. The

parole eligibility report shall be is considered pertinent

information for purposes of subsection (5). The report shall must

include all of the following:

(a) A statement of all major misconduct charges of which the

prisoner was found guilty and the punishment served for the

misconduct.

(b) The prisoner's work and educational record while confined.

examinations of the prisoner that may have been performed.

(d) Whether the prisoner fully cooperated with the this state

by providing complete financial information as required under

section 3a of the state correctional facility reimbursement act,

1935 PA 253, MCL 800.403a.

(e) Whether the prisoner refused to attempt to obtain

identification documents under section 34c, if applicable.

(f) For a prisoner subject to disciplinary time, a statement

of all disciplinary time submitted for the parole board's

consideration under section 34 of 1893 PA 118, MCL 800.34.

(g) The result on any validated risk assessment instrument.

(8) The preparer of the report shall not include a

recommendation as to release on parole.

(9) Psychological evaluations performed at the request of the

parole board to assist it in reaching a decision on the release of

a prisoner may be performed by the same person who provided the

prisoner with therapeutic treatment, unless a different person is

requested by the prisoner or parole board.

(10) The parole board may grant a medical parole for a

prisoner determined to be physically or mentally incapacitated. A

decision to grant a medical parole shall must be initiated upon on

the recommendation of the bureau of health care services and shall

must be reached only after a review of the medical, institutional,

and criminal records of the prisoner.

(11) The department shall submit file a petition to the

appropriate court under section 434 of the mental health code, 1974

PA 258, MCL 330.1434, for any prisoner being paroled or being

released after serving his or her maximum sentence whom the

department considers to be a person requiring treatment. The parole

board shall require mental health treatment as a special condition

of parole for any parolee whom the department has determined to be

a person requiring treatment whether or not the petition filed for

that prisoner is granted by the court. As used in this subsection,

"person requiring treatment" means that term as defined in section

401 of the mental health code, 1974 PA 258, MCL 330.1401.

(12) When the parole board makes a final determination not to

release a prisoner, the parole board shall provide the prisoner

shall be provided with a written explanation of the reason for

denial and, if appropriate, specific recommendations for corrective

action the prisoner may take to facilitate release.

(13) This section does not apply to the placement on parole of

a person in conjunction with special alternative incarceration

under section 34a(7).

Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.