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.