Bill Text: MI HB4021 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: Corrections; prisoners; commutation hearings and procedures; expedite for prisoners who are terminally ill. Amends secs. 35 & 44 of 1953 PA 232 (MCL 791.235 & 791.244).

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2009-01-27 - Printed Bill Filed 01/23/2009 [HB4021 Detail]

Download: Michigan-2009-HB4021-Introduced.html

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HOUSE BILL No. 4021

 

January 22, 2009, Introduced by Rep. Rick Jones and referred to the Committee on Judiciary.

 

     A bill to amend 1953 PA 232, entitled

 

"Corrections code of 1953,"

 

by amending sections 35 and 44 (MCL 791.235 and 791.244), section

 

35 as amended by 1998 PA 315 and section 44 as amended by 1999 PA

 

191.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

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

 

granted solely upon the initiative of the parole board. The parole

 

board may grant a parole without interviewing the prisoner.

 

However, beginning on the date on which the administrative rules

 

prescribing parole guidelines pursuant to section 33e(5) take

 

effect 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 on the date on which the administrative rules

 

prescribing the parole guidelines take effect pursuant to section

 

33e(5) January 26, 1996, 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 shall is not be 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 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 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 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. This subsection does not apply

 

until April 1, 1983.

 

     (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, a parole

 

eligibility report shall be prepared by appropriate institutional

 

staff. The parole eligibility report shall be considered pertinent

 

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

 

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) Whether the prisoner fully cooperated with the 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) For a prisoner subject to disciplinary time, a statement

 

of all disciplinary time submitted for the parole board's

 

consideration pursuant to 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 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. This subsection does not preclude

 

a prisoner from seeking a commutation based on physical or mental

 

incapacity under section 44.

 

     (11) The department shall submit 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 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).

 

     Sec. 44. (1) Subject to the constitutional authority of the

 

governor to grant reprieves, commutations, and pardons, 1 member of

 

the parole board shall interview a prisoner serving a sentence for

 

murder in the first degree or a sentence of imprisonment for life

 

without parole at the conclusion of 10 calendar years and

 

thereafter as determined appropriate by the parole board, until

 

such time as the prisoner is granted a reprieve, commutation, or

 

pardon by the governor, or is deceased. The interview schedule

 

prescribed in this subsection applies to all prisoners to whom this

 

section is applicable, regardless of when they were sentenced.

 

     (2) Upon its own initiation of, or upon receipt of any

 

application for, a reprieve, commutation, or pardon, the parole

 

board shall do all of the following, as applicable:

 

     (a) Not more than 60 days after receipt of an application,

 

conduct a review to determine whether the application for a

 

reprieve, commutation, or pardon has merit.

 

     (b) Deliver either the written documentation of the initiation

 

or the original application with the parole board's determination

 

regarding merit, to the governor and retain a copy of each in its

 

file, pending an investigation and hearing.

 

     (c) Within 10 days after initiation, or after determining that

 

an application has merit, forward to the sentencing judge and to

 

the prosecuting attorney of the county having original jurisdiction

 

of the case, or their successors in office, a written notice of the

 

filing of the application or initiation, together with copies of

 

the application or initiation, any supporting affidavits, and a

 

brief summary of the case. Within 30 days after receipt of notice

 

of the filing of any application or initiation, the The sentencing

 

judge and the prosecuting attorney, or their successors in office,

 

may file information at their disposal, together with any

 

objections, in writing, which they may desire to interpose. A

 

response from a sentencing judge or prosecuting attorney must be

 

filed within 10 days after he or she received the written notice in

 

the case of a proposed commutation based on physical or mental

 

incapacity as provided in subdivision (d) or within 30 days after

 

he or she received the written notice in the case of any other

 

proposed commutation. If the sentencing judge and the prosecuting

 

attorney, or their successors in office, do not respond within 30

 

days the applicable time period, the parole board shall proceed on

 

the application or initiation.

 

     (d) If an application or initiation for commutation is based

 

on physical or mental incapacity, direct the bureau of health care

 

services to evaluate the condition of the prisoner and report on

 

that condition. If the bureau of health care services determines

 

that the prisoner is physically or mentally incapacitated, the

 

bureau shall appoint a specialist in the appropriate field of

 

medicine, who is not employed by the department, to evaluate the

 

condition of the prisoner and to report on that condition. These

 

reports are protected by the doctor-patient privilege of

 

confidentiality, except that these reports shall be provided to the

 

governor for his or her review.

 

     (e) Within 270 days after initiation by the parole board or

 

receipt of an application that the parole board has determined to

 

have merit pursuant to subdivision (a), make a full investigation

 

and determination on whether or not to proceed to a public hearing.

 

     (f) Conduct Except as otherwise provided in subsection (3),

 

conduct a public hearing not later than 90 days after making a

 

decision to proceed with consideration of a recommendation for the

 

granting of a reprieve, commutation, or pardon. The public hearing

 

shall be held before a formal recommendation is transmitted to the

 

governor. One member of the parole board who will be involved in

 

the formal recommendation may conduct the hearing, and the public

 

shall be represented by the attorney general or a member of the

 

attorney general's staff.

 

     (g) At least 30 days before Before conducting the public

 

hearing, provide written notice of the public hearing by mail to

 

the attorney general, the sentencing trial judge, and the

 

prosecuting attorney, or their successors in office, and each

 

victim who requests notice pursuant to the William Van Regenmorter

 

crime victim's rights act, 1985 PA 87, MCL 780.751 to 780.834. If

 

the public hearing is being conducted for a proposed commutation

 

based on physical or mental incapacity as provided in subdivision

 

(d), the written notice shall be provided at least 10 days before

 

the public hearing and may be provided simultaneously with the

 

notice required under subdivision (c). For all other public

 

hearings for proposed commutations, the written notice shall be

 

provided at least 30 days before the public hearing.

 

     (h) Conduct the public hearing pursuant to the rules

 

promulgated by the department. Except as otherwise provided in this

 

subdivision, any person having information in connection with the

 

pardon, commutation, or reprieve shall be sworn as a witness. A

 

person who is a victim shall be given an opportunity to address and

 

be questioned by the parole board at the hearing or to submit

 

written testimony for the hearing. In hearing testimony, the parole

 

board shall give liberal construction to any technical rules of

 

evidence.

 

     (i) Transmit its formal recommendation to the governor.

 

     (j) Make all data in its files available to the governor if

 

the parole board recommends the granting of a reprieve,

 

commutation, or pardon.

 

     (3) Notwithstanding subsection (2), a public hearing is not

 

required for a proposed commutation based on physical or mental

 

incapacity under subsection (2)(d) if both medical reports prepared

 

pursuant to subsection (2)(d) give the prisoner a life expectancy

 

of 6 months or less and if the parole board gives written notice of

 

the proposed commutation to the attorney general, the sentencing

 

judge, and the prosecuting attorney, or their successors in office,

 

and each victim who requests notice pursuant to the William Van

 

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

 

780.834. The written notice shall request a written response within

 

10 days as to the proposed commutation and may be made

 

simultaneously with the notice required under subsection (2)(c).

 

Any written responses shall be forwarded to the governor with the

 

parole board's final recommendation and shall be matters of public

 

record. This subsection does not apply to a prisoner serving a

 

sentence for a listed offense as defined in section 2 of the sex

 

offenders registration act, 1994 PA 295, MCL 28.722.

 

     (4) (3) Except for medical records protected by the doctor-

 

patient privilege of confidentiality, the files of the parole board

 

in cases under this section shall be are matters of public record.