HB-5931, As Passed House, December 4, 2014
SUBSTITUTE FOR
HOUSE BILL NO. 5931
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 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.
(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 pursuant to under
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, which shall 1969
PA 306, MCL 24.201 to
24.328,
that prescribe the parole guidelines. The
department shall
submit
the proposed rules to the joint committee on administrative
House Bill No. 5931 (H-2) as amended December 4, 2014
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 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.
[(7)] In order to facilitate the efficient
administration of the department and not to create a liberty
interest or expectation of parole, it is presumed that a prisoner
who either scores high probability of release on the parole
guidelines or a prisoner under the custody of the department and
serving a sentence for a controlled substance offense or
nonassaultive offense who scores high or medium probability of
release on the parole guidelines will not be a menace to society or
the public safety and will be released upon service of the minimum
sentence. Substantial and compelling reasons for departure include,
but are not limited to, the following circumstances:
(a) The prisoner has an institutional misconduct score lower
than -1.
(b) There is objective evidence of harm to a victim that was
House Bill No. 5931 (H-2) as amended December 4, 2014
not available for consideration at the time of sentencing, or that
the prisoner has threatened to harm another person if released.
(c) The prisoner has a pending felony charge or detainer.
(d) The prisoner has been identified in the combined DNA index
system and linked to an unadjudicated criminal violation. However,
the prisoner shall be notified that he or she may request
additional DNA testing to confirm or refute a codis match.
(e) The release of the prisoner would otherwise be barred by
law.
[
]
(8) In deciding whether to release a prisoner who scores
average probability of release on the parole guidelines, the parole
board shall consider the absence or presence of the circumstances
listed in subsection [(7)].
(9) A prisoner who has been denied release upon first
eligibility shall be subsequently reviewed as follows:
(a) If the prisoner scored high or average probability of
release, subsequent reviews shall be annual.
(b) If the prisoner scored low probability of release,
House Bill No. 5931 (H-2) as amended December 4, 2014
subsequent reviews shall be every 2 years until a score of average
probability is attained.
(10) The parole board may defer a release upon the service of
the prisoner's minimum sentence under subsection [(7)] for up to 4
months to allow the prisoner to complete a treatment program that
is reasonably necessary to reduce the risk to public safety from
the prisoner's release.
[(11) Subsections (7) to (10) as added by the amendatory act that added this subsection apply only to prisoners transferred to the custody of the department on or after the effective date of the amendatory act that added this subsection, except for prisoners serving a life sentence or a sentence for a violation of section 83, 84, 86, 88, 89, 110a, 145n, 317, 321, 349, 349a, 350, 397, 462e, 520b, 520c, 520d, 520g, 529, or 529a of the Michigan penal code, 1931 PA 328, MCL 750.83, 750.84, 750.86, 750.88, 750.89, 750.110a, 750.145n, 750.317, 750.321, 750.349, 750.349a, 750.350, 750.397, 750.462e, 750.520b, 750.520c, 750.520d, 750.520g, 750.529, and 750.529a. Subsections (7) to (10) as added by the amendatory act that added this subsection do not apply to prisoners in the custody of the department and serving any sentence before the effective date of the amendatory act that added this subsection.
(12)] (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 and the
criminal justice policy commission any proposed revisions to the
administrative rules that the department considers appropriate
after conducting the review.
Sec. 35. (1) The release of a prisoner on parole shall 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 not be denied parole without an
interview before 1 member of the parole board. The interview shall
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 be
sent a notice of intent to conduct an interview at least 1 month
before the date of the interview. The notice shall state the
specific issues and concerns that shall 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 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.
(c) The results of any physical, mental, or psychiatric
examinations of the prisoner that may have been performed.
(d) The results on any validated risk assessment instruments.
(e) (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.
(f) (e)
Whether the prisoner refused to
attempt to obtain
identification documents under section 34c, if applicable.
(g) (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.
(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 be initiated upon on the
recommendation of the bureau of health care services and shall 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).