Bill Text: MI HB4102 | 2017-2018 | 99th Legislature | Engrossed

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Bill Title: Corrections; parole; corrections code of 1953; amend to implement medically frail parole. Amends secs. 33, 33b & 34 of 1953 PA 232 (MCL 791.233 et seq.). TIE BAR WITH: HB 4101'17

Spectrum: Partisan Bill (Republican 1-0)

Status: (Engrossed - Dead) 2018-05-17 - Referred To Committee Of The Whole With Substitute S-1 [HB4102 Detail]

Download: Michigan-2017-HB4102-Engrossed.html

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HB-4102, As Passed House, March 7, 2018

 

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 4102

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1953 PA 232, entitled

 

"Corrections code of 1953,"

 

by amending sections 33 and 34 (MCL 791.233 and 791.234), section

 

33 as amended by 2017 PA 14 and section 34 as amended by 2017 PA

 

265.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 33. (1) The grant of a parole is subject to all of the

 

following conditions:

 

     (a) A prisoner must not be given liberty on parole until the

 

board has reasonable assurance, after consideration of all of the

 

facts and circumstances, including the prisoner's mental and social

 

attitude, that the prisoner will not become a menace to society or

 

to the public safety.

 

     (b) Except as provided in section 34a and section 35(10), a

 

parole must not be granted to a prisoner other than a prisoner

 

subject to disciplinary time until the prisoner has served the

 

minimum term imposed by the court less allowances for good time or

 

special good time to which the prisoner may be entitled by statute,

 

except that a prisoner other than a prisoner subject to

 

disciplinary time is eligible for parole before the expiration of

 

his or her minimum term of imprisonment whenever if the sentencing

 

judge, or the judge's successor in office, gives written approval

 

of the parole of the prisoner before the expiration of the minimum

 

term of imprisonment.

 

     (c) Except as provided in section 34a and section 35(10), and

 

notwithstanding the provisions of subdivision (b), a parole must

 

not be granted to a prisoner other than a prisoner subject to

 

disciplinary time sentenced for the commission of a crime described

 

in section 33b(a) to (cc) until the prisoner has served the minimum

 

term imposed by the court less an allowance for disciplinary

 

credits as provided in section 33(5) of 1893 PA 118, MCL 800.33. A

 

prisoner described in this subdivision is not eligible for special

 

parole.

 

     (d) Except as provided in section 34a and section 35(10), a

 

parole must not be granted to a prisoner subject to disciplinary

 

time until the prisoner has served the minimum term imposed by the

 

court.

 

     (e) A prisoner must not be released on parole until the parole

 

board has satisfactory evidence that arrangements have been made

 

for such honorable and useful employment as the prisoner is capable

 

of performing, for the prisoner's education, or for the prisoner's

care if the prisoner is mentally or physically ill or

 

incapacitated.

 

     (f) A Except as provided in section 35(10), a prisoner whose

 

minimum term of imprisonment is 2 years or more must not be

 

released on parole unless he or she has either earned a high school

 

diploma or a high school equivalency certificate. The director of

 

the department may waive the restriction imposed by this

 

subdivision as to any prisoner who is over the age of 65 or who was

 

gainfully employed immediately before committing the crime for

 

which he or she was incarcerated. The department may also waive the

 

restriction imposed by this subdivision as to any prisoner who has

 

a learning disability, who does not have the necessary proficiency

 

in English, or who for some other reason that is not the fault of

 

the prisoner is unable to successfully complete the requirements

 

for a high school diploma or a high school equivalency certificate.

 

If the prisoner does not have the necessary proficiency in English,

 

the department shall provide English language training for that

 

prisoner necessary for the prisoner to begin working toward the

 

completion of the requirements for a high school equivalency

 

certificate. This subdivision applies to prisoners sentenced for

 

crimes committed after December 15, 1998. In providing an

 

educational program leading to a high school diploma or a high

 

school equivalency certificate, the department shall give priority

 

to prisoners sentenced for crimes committed on or before December

 

15, 1998.

 

     (2) Paroles-in-custody to answer warrants filed by local or

 

out-of-state agencies, or immigration officials, are permissible if

an accredited agent of the agency filing the warrant calls for the

 

prisoner to be paroled in custody.

 

     (3) The parole board may promulgate rules under the

 

administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to

 

24.328, that are not inconsistent with this act with respect to

 

conditions imposed upon prisoners paroled under this act.

 

     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 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 was convicted.

 

     (3) If 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

House Bill No. 4102 as amended March 7, 2018

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) If 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 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.

 

     [                                                        

 

                                                                  

 

                                                                 

House Bill No. 4102 as amended March 7, 2018

                                                      

 

         (6)]A prisoner sentenced to imprisonment for life for [any

either]

 

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.

     (B)](e) [First degree criminal sexual conduct in violation of

section] 520b(2)(c) [(520B)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 for any of the following is not eligible for parole and is otherwise subject to the PROVISIONS of section 44 or 44a:

     (a) a violation of section 16(5) or 18(7) of the michigan penal code, 1931 PA 328, mcl 750.16 and 750.18.

     (b) a violation of chapter xxxiii of the michigan penal code, 1931 pa 328, mcl 750.200 to 750.212a.

     (c) a violation of section 17764(7) of the public health code, 1978 pa 368, mcl 333.17764.

     (d) any other violation for which parole eligibility is expressly denied under state law.]

     (8) (7) A Except for a prisoner granted parole under section

 

35(10), a prisoner sentenced to imprisonment for life, other than a

 

prisoner described in [subsection]SUBSECTIONS (6), (7),] is subject to

the

 

jurisdiction of the parole board and may be placed on parole

 

according to the conditions prescribed in subsection (8) (9) if he

 

or she 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), (13), 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), (13), 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.

 

     (9) (8) A parole granted to a prisoner under subsection (7)

 

(8) 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), (10), 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) (8) 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 shall 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). (8). If written

 

objections are filed by either the sentencing judge or the judge's

 

successor in office, they the objections must be made part of the

 

prisoner's file.

 

     (d) A parole granted under subsection (7) (8) 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) (8) 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) (8) is a public record.

 

     (10) (9) An interview conducted under subsection (8)(a) (9)(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 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).(9)(c).

 

     (11) (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

House Bill No. 4102 as amended March 7, 2018

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.

 

     (12) (11) Except as provided in [subsection (20) 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 shall must be to the circuit court in the county from

 

which the prisoner was committed, by leave of the court.

 

     (13) (12) If the sentencing judge, or his or her successor in

 

office, determines on the record that a prisoner described in

 

subsection (7)(b) (8)(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) (8)(b) or (c) 2-1/2 years earlier

 

than the time otherwise indicated in subsection (7)(b) (8)(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 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.

 

     (14) (13) Notwithstanding 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.

     (15) (14) Notwithstanding 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.

 

     (16) (15) Notwithstanding 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.

 

     (17) (16) Notwithstanding 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.

 

     (18) (17) Notwithstanding 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 the effective date of the

 

amendatory act that added this subsection March 28, 2018 is

 

eligible for parole after serving 5 years of each sentence imposed

 

for that violation.

 

     (19) (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 (18) 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.

 

     (20) 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 (19). If the

 

victim or, in the case of a homicide, the victim's immediate

 

family, objects to the parole board's determination to consider the

 

prisoner for parole under section 35(10), the prosecuting attorney

 

of the county in which the prisoner was convicted shall review the

 

case with the victim or his or her immediate family, as applicable,

 

before filing a motion in the circuit court as provided in this

 

subsection. 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

House Bill No. 4102 as amended March 7, 2018

prisoner being considered for parole under section 35(10).[If an appeal

 is initiated under this subsection, a subsequent appeal under subsection (12) may not be initiated upon the granting of parole.]

 

     (21) Both of the following apply to a hearing conducted on a

 

motion filed under subsection (20):

 

     (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.

 

     (22) The decision of the sentencing judge or the judge's

 

successor on a motion filed under subsection (20) 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 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.[          

 

                                                                 

 

                                                                   

 

                                                                  

 

                                                                   

 

                                                               

 

                                                                   

 

                                     ]

 

     (23) (19) As used in this section:

 

     (a) "Medically frail" means that term as defined in section

 

35(22).

     (b) (a) "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) (b) "State correctional facility" means a facility that

 

houses prisoners committed to the jurisdiction of the department.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.

 

     Enacting section 2. This amendatory act does not take effect

 

unless House Bill No. 4101 of the 99th Legislature is enacted into

 

law.