Bill Text: MI HB4711 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: Corrections; parole; special parole board to oversee commutation, clemency, and parole violation hearings; create. Amends secs. 6, 39a, 40a, 41, 43, 44, 45 & 46 of 1953 PA 232 (MCL 791.206 et seq.) & adds sec. 31b. TIE BAR WITH: HB 4710'09

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Introduced - Dead) 2009-03-31 - Printed Bill Filed 03/27/2009 [HB4711 Detail]

Download: Michigan-2009-HB4711-Introduced.html

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HOUSE BILL No. 4711

 

March 26, 2009, Introduced by Reps. Smith, Cushingberry and Meadows and referred to the Committee on Judiciary.

 

     A bill to amend 1953 PA 232, entitled

 

"Corrections code of 1953,"

 

by amending sections 6, 39a, 40a, 41, 43, 44, 45, and 46 (MCL

 

791.206, 791.239a, 791.240a, 791.241, 791.243, 791.244, 791.245,

 

and 791.246), section 6 as amended by 2006 PA 172, sections 39a and

 

46 as added by 1982 PA 314, section 40a as amended by 2006 PA 532,

 

and section 44 as amended by 1999 PA 191, and by adding section

 

31b.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 6. (1) The director may promulgate rules pursuant to the

 

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

 

24.328, to provide for all of the following:

 

     (a) The control, management, and operation of the general

 

affairs of the department.

 

     (b) Supervision and control of probationers and probation

 

officers throughout this state.

 

     (c) The manner in which applications for pardon, reprieve,

 

medical commutation, or commutation shall be made to the governor;

 

the procedures for handling applications and recommendations by the

 

parole board and the special parole board; the manner in which

 

paroles shall be considered, the criteria to be used to reach

 

release decisions, the procedures for medical and special paroles,

 

and the duties of the parole board in those matters; interviews on

 

paroles and for the notice of intent to conduct an interview; the

 

entering of appropriate orders granting or denying paroles; the

 

supervision and control of paroled prisoners; and the revocation of

 

parole.

 

     (d) The management and control of state penal institutions,

 

correctional farms, probation recovery camps, and programs for the

 

care and supervision of youthful trainees separate and apart from

 

persons convicted of crimes within the jurisdiction of the

 

department. Except as provided for in section 62(3), this

 

subdivision does not apply to detention facilities operated by

 

local units of government used to detain persons less than 72

 

hours. The rules may permit the use of portions of penal

 

institutions in which persons convicted of crimes are detained. The

 

rules shall provide that decisions as to the removal of a youth

 

from the youthful trainee facility or the release of a youth from

 

the supervision of the department shall be made by the department

 

and shall assign responsibility for those decisions to a committee.

 

     (e) The management and control of prison labor and industry.

 

     (f) The director may promulgate rules providing for the

 

creation and operation of a lifetime electronic monitoring program

 

to conduct electronic monitoring of individuals, who have served

 

sentences imposed for certain crimes, following their release from

 

parole, prison, or both parole and prison.

 

     (2) The director may promulgate rules providing for a parole

 

board structure or special parole board structure consisting of 3-

 

member panels.

 

     (3) The director may promulgate further rules with respect to

 

the affairs of the department as the director considers necessary

 

or expedient for the proper administration of this act. The

 

director may modify, amend, supplement, or rescind a rule.

 

     (4) The director and the corrections commission shall not

 

promulgate a rule or adopt a guideline that does either of the

 

following:

 

     (a) Prohibits a probation officer or parole officer from

 

carrying a firearm while on duty.

 

     (b) Allows a prisoner to have his or her name changed. If the

 

Michigan supreme court rules that this subdivision is violative of

 

constitutional provisions under the first and fourteenth amendments

 

to the United States constitution and article I, sections 2 and 4

 

of the state constitution of 1963, the remaining provisions of the

 

code shall remain in effect.

 

     Sec. 31b. (1) There is established in the department a special

 

parole board consisting of 5 members who shall be appointed by the

 

director.

 

     (2) To be qualified for appointment under this section, a

 

person shall have earned his or her bachelor's degree and shall

 

have at least 5 years' work experience in correctional facility

 

administration, psychiatry, social work, trial law, education, or

 

research in the field of corrections.

 

     (3) A person appointed under this section is an independent

 

contractor paid on an hourly basis.

 

     (4) The chairperson of the special parole board shall be

 

designated by the director. The chairperson of the special parole

 

board is responsible for the administration and operation of the

 

special parole board. The chairperson may conduct interviews and

 

participate in the board's decision-making process.

 

     (5) The special parole board only has jurisdiction over

 

matters described in sections 39a, 40a, 41, 43, 44, and 45.

 

     (6) The special parole board created under this section is

 

abolished 5 years after the effective date of the amendatory act

 

that added this section, or the date on which the number of

 

prisoners who are imprisoned beyond their earliest release date is

 

reduced to 10% of the total prisoner population, whichever occurs

 

first. Upon its abolition, any reference in section 39a, 40a, 41,

 

43, 44, 45, or 46 to the special parole board shall be considered

 

to be a reference to the board responsible for paroles generally.

 

     Sec. 39a. (1) Within 10 days after an arrest for an alleged

 

violation of parole, the parolee shall be entitled to a preliminary

 

hearing conducted by or on behalf of the special parole board to

 

determine whether there is probable cause to believe that the

 

conditions of parole have been violated or a fact-finding hearing

 

held pursuant to section 40a.

 

     (2) Prior to the preliminary hearing, the accused parolee

 

shall be given written notice of the charges, time, place, and

 

purpose of the preliminary hearing.

 

     (3) At the preliminary hearing, the accused parolee is

 

entitled to the following rights:

 

     (a) Disclosure of the evidence against him or her.

 

     (b) The right to testify and present relevant witnesses and

 

documentary evidence.

 

     (c) The right to confront and cross-examine adverse witnesses

 

unless the person conducting the preliminary hearing finds on the

 

record that a witness may be subjected to risk of harm if his or

 

her identity is revealed.

 

     (4) A preliminary hearing may be postponed beyond the 10-day

 

time limit on the written request of the parolee, but shall not be

 

postponed by the department.

 

     (5) If a preliminary hearing is not held pursuant to

 

subsection (1), an accused parolee shall be given written notice of

 

the charges against him or her, the time, place and purpose of the

 

fact-finding hearing and a written summary of the evidence to be

 

presented against him or her.

 

     (6) If a preliminary hearing is not held pursuant to

 

subsection (1), an accused parolee may not be found guilty of a

 

violation based on evidence that was not summarized in the notice

 

provided pursuant to subsection (5) except for good cause stated on

 

the record and included in the written findings of fact provided to

 

the parolee.

 

     Sec. 40a. (1) After a prisoner is released on parole, the

 

prisoner's parole order is subject to revocation at the discretion

 

of the special parole board for cause as provided in this section.

 

     (2) If a paroled prisoner who is required to register pursuant

 

to the sex offenders registration act, 1994 PA 295, MCL 28.721 to

 

28.736, willfully violates that act, the special parole board shall

 

revoke the parole. If a prisoner convicted of violating or

 

conspiring to violate section 7401(2)(a)(i) or (ii) or 7403(2)(a)(i)

 

or (ii) of the public health code, 1978 PA 368, MCL 333.7401 and

 

333.7403, is released on parole and violates or conspires to

 

violate article 7 of the public health code, 1978 PA 368, MCL

 

333.7101 to 333.7545, and that violation or conspiracy to violate

 

is punishable by imprisonment for 4 or more years, or commits a

 

violent felony during his or her release on parole, parole shall be

 

revoked.

 

     (3) Within 45 days after a paroled prisoner has been returned

 

or is available for return to a state correctional facility under

 

accusation of a parole violation other than conviction for a felony

 

or misdemeanor punishable by imprisonment under the laws of this

 

state, the United States, or any other state or territory of the

 

United States, the prisoner is entitled to a fact-finding hearing

 

on the charges before 1 member of the special parole board or an

 

attorney hearings officer designated by the chairperson of the

 

special parole board. The fact-finding hearing shall be conducted

 

only after the accused parolee has had a reasonable amount of time

 

to prepare a defense. The fact-finding hearing may be held at a

 

state correctional facility or at or near the location of the

 

alleged violation.

 

     (4) If, before a fact-finding hearing begins, the accused

 

parolee alleges that he or she is indigent and requests that an

 

attorney be appointed to represent him or her, the special parole

 

board member or attorney hearings officer who will conduct the

 

hearing shall determine whether the accused parolee is indigent. If

 

the accused parolee is determined to be indigent, the special

 

parole board member or hearings officer shall cause the appointment

 

of an attorney to represent the accused parolee at the fact-finding

 

hearing. The cost of the appointed attorney shall be paid from the

 

department's general operating budget.

 

     (5) An accused parolee shall be given written notice of the

 

charges against him or her and the time, place, and purpose of the

 

fact-finding hearing. At the fact-finding hearing, the accused

 

parolee may be represented by a retained attorney or an attorney

 

appointed under subsection (4) and is entitled to the following

 

rights:

 

     (a) Full disclosure of the evidence against him or her.

 

     (b) To testify and present relevant witnesses and documentary

 

evidence.

 

     (c) To confront and cross-examine adverse witnesses unless the

 

person conducting the fact-finding hearing finds on the record that

 

a witness is subject to risk of harm if his or her identity is

 

revealed.

 

     (d) To present other relevant evidence in mitigation of the

 

charges.

 

     (6) A fact-finding hearing may be postponed for cause beyond

 

the 45-day time limit on the written request of the parolee, the

 

parolee's attorney, or, if a postponement of the preliminary parole

 

violation hearing required under section 39a has been granted

 

beyond the 10-day time limit, by the special parole board.

 

     (7) The director or a deputy director designated by the

 

director shall be notified in writing if the preliminary parole

 

violation hearing is not conducted within the 10-day time limit,

 

and the hearing shall be conducted as soon as possible. The

 

director or a deputy director designated by the director shall be

 

notified in writing if the fact-finding hearing is not conducted

 

within the 45-day time limit, and the hearing shall be conducted as

 

soon as possible. A parolee held in custody shall not be released

 

pending disposition of either hearing.

 

     (8) If the evidence presented is insufficient to support the

 

allegation that a parole violation occurred, the parolee shall be

 

reinstated to parole status.

 

     (9) If the special parole board member or hearings officer

 

conducting the fact-finding hearing determines from a preponderance

 

of the evidence that a parole violation has occurred, the special

 

parole board member or hearings officer shall present the relevant

 

facts to the special parole board and make a recommendation as to

 

the disposition of the charges.

 

     (10) If a preponderance of the evidence supports the

 

allegation that a parole violation occurred, the special parole

 

board may revoke parole, and the parolee shall be provided with a

 

written statement of the findings of fact and the reasons for the

 

determination within 60 30 days after the paroled prisoner has been

 

returned or is available for return to a state correctional

 

facility.

 

     (11) A parolee who is ordered to make restitution under the

 

William Van Regenmorter crime victim's rights act, 1985 PA 87, MCL

 

780.751 to 780.834, or the code of criminal procedure, 1927 PA 175,

 

MCL 760.1 to 777.69, or to pay an assessment ordered under section

 

5 of 1989 PA 196, MCL 780.905, as a condition of parole may have

 

his or her parole revoked by the special parole board if the

 

parolee fails to comply with the order and if the parolee has not

 

made a good faith effort to comply with the order. In determining

 

whether to revoke parole, the special parole board shall consider

 

the parolee's employment status, earning ability, and financial

 

resources, the willfulness of the parolee's failure to comply with

 

the order, and any other special circumstances that may have a

 

bearing on the parolee's ability to comply with the order.

 

     (12) As used in this section, "violent felony" means that term

 

as defined in section 36.

 

     Sec. 41. (1) When the special parole board has determined the

 

a matter under section 40a, it shall enter an order rescinding such

 

parole , or reinstating the original order of parole or shall enter

 

such any other order as it may see fit it considers appropriate.

 

     (2) The rescission period resulting from the first

 

determination of a prisoner's violation of a condition of parole

 

shall not exceed 270 days. The rescission period resulting from the

 

second determination of a prisoner's violation of a condition of

 

parole, or that results from an event other than a violation of a

 

condition of parole, shall not extend beyond a date that is 270

 

days before the expiration of the prisoner's maximum sentence.

 

     Sec. 43. All applications for pardons, reprieves, and

 

commutations shall be filed with the special parole board upon

 

forms provided therefor for that purpose by the special parole

 

board , and shall contain such information, records, and documents

 

as that the special parole board may requires by rule. require.

 

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

 

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

 

the special 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

 

special 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 special

 

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 special 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 sentencing

 

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

 

may file information at their disposal, together with any

 

objections, in writing, which that they may desire to interpose. If

 

the sentencing judge and the prosecuting attorney, or their

 

successors in office, do not respond within 30 days, 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 special parole

 

board or receipt of an application that the special 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 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 special 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 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.

 

     (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 special parole board at the hearing or to

 

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

 

special 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 special parole board recommends the granting of a reprieve,

 

commutation, or pardon.

 

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

 

privilege of confidentiality, the files of the special parole board

 

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

 

     Sec. 45. In the conduct of any hearing or investigation as

 

herein provided in this act, any member of the special parole board

 

may administer the oath to any witness.

 

     Sec. 46. All decisions and recommendations of the parole board

 

or the special parole board required by this act shall be by a

 

majority vote of the parole board or special parole board or a

 

parole board panel or special parole board panel created pursuant

 

to section 6(2).

 

     Enacting section 1. This amendatory act does not take effect

 

unless Senate Bill No.____ or House Bill No. 4710(request no.

 

02240'09 *) of the 95th Legislature is enacted into law.