HOUSE BILL No. 5928

November 6, 2014, Introduced by Rep. Haveman and referred to the Committee on Appropriations.

A bill to amend 1927 PA 175, entitled

"The code of criminal procedure,"

by amending sections 1a, 1l, 34, and 35 of chapter IX (MCL 769.1a,

769.1l, 769.34, and 769.35), section 1a as amended by 2009 PA 27,

section 1l as added by 2005 PA 325, section 34 as amended by 2002 PA

666, and section 35 as added by 1998 PA 317, and by adding sections

32a and 33a to chapter IX.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

CHAPTER IX

Sec. 1a. (1) As used in this section:

(a) "Crime victim services commission" means that term as

described in section 2 of 1976 PA 223, MCL 18.352.

(b) "Victim" means an individual who suffers direct or

threatened physical, financial, or emotional harm as a result of

the commission of a felony, misdemeanor, or ordinance violation.

For purposes of subsections (2), (3), (6), (8), (9), and (13),

victim includes a sole proprietorship, partnership, corporation,

association, governmental entity, or any other legal entity that

suffers direct physical or financial harm as a result of a felony,

misdemeanor, or ordinance violation.

(2) Except as provided in subsection (8), when sentencing a

defendant convicted of a felony, misdemeanor, or ordinance

violation, the court shall order, in addition to or in lieu of any

other penalty authorized by law or in addition to any other penalty

required by law, that the defendant make full restitution to any

victim of the defendant's course of conduct that gives rise to the

conviction or to the victim's estate.

(3) If a felony, misdemeanor, or ordinance violation results

in damage to or loss or destruction of property of a victim of the

felony, misdemeanor, or ordinance violation or results in the

seizure or impoundment of property of a victim of the felony,

misdemeanor, or ordinance violation, the order of restitution may

require that the defendant do 1 or more of the following, as

applicable:

(a) Return the property to the owner of the property or to a

person designated by the owner.

(b) If return of the property under subdivision (a) is

impossible, impractical, or inadequate, pay an amount equal to the

greater of subparagraph (i) or (ii), less the value, determined as of

the date the property is returned, of that property or any part of

the property that is returned:

(i) The fair market value of the property on the date of the

damage, loss, or destruction. However, if the fair market value of

the property cannot be determined or is impractical to ascertain,

then the replacement value of the property shall be utilized in

lieu of the fair market value.

(ii) The fair market value of the property on the date of

sentencing. However, if the fair market value of the property

cannot be determined or is impractical to ascertain, then the

replacement value of the property shall be utilized in lieu of the

fair market value.

(4) If a felony, misdemeanor, or ordinance violation results

in physical or psychological injury to a victim, the order of

restitution may require that the defendant do 1 or more of the

following, as applicable:

(a) Pay an amount equal to the cost of actual medical and

related professional services and devices relating to physical and

psychological care.

(b) Pay an amount equal to the cost of actual physical and

occupational therapy and rehabilitation.

income loss suffered by the victim as a result of the felony,

misdemeanor, or ordinance violation.

(d) Pay an amount equal to the cost of psychological and

medical treatment for members of the victim's family that has been

incurred as a result of the felony, misdemeanor, or ordinance

violation.

(e) Pay an amount equal to the cost of actual homemaking and

child care expenses incurred as a result of the felony,

misdemeanor, or ordinance violation.

(5) If a felony, misdemeanor, or ordinance violation resulting

in bodily injury also results in the death of a victim, the order

of restitution may require that the defendant pay an amount equal

to the cost of actual funeral and related services.

(6) If the victim or the victim's estate consents, the order

of restitution may require that the defendant make restitution in

services in lieu of money.

(7) If the victim is deceased, the court shall order that the

restitution be made to the victim's estate.

(8) The court shall order restitution to the crime victim

services commission or to any individuals, partnerships,

corporations, associations, governmental entities, or other legal

entities that have compensated the victim or the victim's estate

for a loss incurred by the victim to the extent of the compensation

paid for that loss. The court shall also order restitution for the

costs of services provided to persons or entities that have

provided services to the victim as a result of the felony,

misdemeanor, or ordinance violation. Services that are subject to

restitution under this subsection include, but are not limited to,

shelter, food, clothing, and transportation. However, an order of

restitution shall require that all restitution to a victim or a

victim's estate under the order be made before any restitution to

any other person or entity under that order is made. The court

shall not order restitution to be paid to a victim or victim's

estate if the victim or victim's estate has received or is to

receive compensation for that loss, and the court shall state on

the record with specificity the reasons for its action. If an

entity entitled to restitution under this subsection for

compensating the victim or the victim's estate cannot or refuses to

be reimbursed for that compensation, the restitution paid for that

entity shall be deposited by the state treasurer in the crime

victim's rights fund created under section 4 of 1989 PA 196, MCL

780.904, or its successor fund.

(9) Any amount paid to a victim or a victim's estate under an

order of restitution shall be set off against any amount later

recovered as compensatory damages by the victim or the victim's

estate in any federal or state civil proceeding and shall reduce

the amount payable to a victim or a victim's estate by an award

from the crime victim services commission made after an order of

restitution under this section.

(10) If not otherwise provided by the court under this

subsection, restitution shall be made immediately. However, the

court may require that the defendant make restitution under this

section within a specified period or in specified installments.

(11) If the defendant is placed on probation or paroled or the

court imposes a conditional sentence under section 3 of this

chapter, any restitution ordered under this section shall be a

condition of that probation, parole, or sentence. The court may

revoke probation or impose imprisonment under the conditional

sentence and the parole board may revoke parole if the defendant

fails to comply with the order and if the defendant has not made a

good-faith effort to comply with the order. In determining whether

to revoke probation or parole or impose imprisonment, the court or

parole board shall consider the defendant's employment status,

earning ability, and financial resources, the willfulness of the

defendant's failure to pay, and any other special circumstances

that may have a bearing on the defendant's ability to pay.

(12) A defendant who is required to pay restitution and who is

not in willful default of the payment of the restitution may at any

time petition the sentencing judge or his or her successor to

modify the method of payment. If the court determines that payment

under the order will impose a manifest hardship on the defendant or

his or her immediate family, the court may modify the method of

payment.

(13) An order of restitution entered under this section

remains effective until it is satisfied in full. An order of

restitution is a judgment and lien against all property of the

defendant for the amount specified in the order of restitution. The

lien may be recorded as provided by law. An order of restitution

may be enforced by the prosecuting attorney, a victim, a victim's

estate, or any other person or entity named in the order to receive

the restitution in the same manner as a judgment in a civil action

or a lien.

(14) Notwithstanding any other provision of this section, a

defendant shall not be imprisoned, jailed, or incarcerated for a

violation of probation or parole or otherwise for failure to pay

restitution as ordered under this section unless the court or

parole board determines that the defendant has the resources to pay

the ordered restitution and has not made a good-faith effort to do

so.

(15) In each case in which payment of restitution is ordered

as a condition of probation, the probation officer assigned to the

case shall review the case not less than twice yearly to ensure

that restitution is being paid as ordered. The final review shall

be conducted not less than 60 days before the probationary period

expires. If the probation officer determines that restitution is

not being paid as ordered, the probation officer shall file a

written report of the violation with the court on a form prescribed

by the state court administrative office. The report shall include

a statement of the amount of the arrearage and any reasons for the

arrearage known by the probation officer. The probation officer

shall immediately provide a copy of the report to the prosecuting

attorney. If a motion is filed or other proceedings are initiated

to enforce payment of restitution and the court determines that

restitution is not being paid or has not been paid as ordered by

the court, the court shall promptly take action necessary to compel

compliance.

(16) If a defendant who is ordered to pay restitution under

this section is remanded to the jurisdiction of the department of

corrections, the court shall provide a copy of the order of

restitution to the department of corrections when the defendant is

ordered remanded to the department's jurisdiction.

(17) It is the intent of the legislature that the Michigan

supreme court implement measurement of restitution assessment and

collection as a court performance measure for circuit courts and

district courts.

Sec. 1l. If a prisoner under the jurisdiction of the department

of corrections has been ordered to pay any sum of money as

described in section 1k and the department of corrections receives

an order from the court on a form prescribed by the state court

administrative office, the department of corrections shall deduct

50% of the funds received by the prisoner in a month over $50.00

and promptly forward a payment to the court as provided in the

order when the amount exceeds $100.00, or the entire amount if the

prisoner is paroled, is transferred to community programs, or is

discharged on the maximum sentence. The department of corrections

shall give an order of restitution under section 20h of the

corrections code of 1953, 1953 PA 232, MCL 791.220h, or the William

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

to 780.834, priority over an order received under this section. The

department of corrections shall track and report prisoner

restitution collection as a performance measure.

Sec. 32a. (1) A criminal justice policy commission is created

in the legislative council. Before March 1, 2015, the governor

shall appoint the commission members described in subdivisions (d)

to (m). The commission consists of the all of the following

members:

(a) Two individuals who are members of the senate, consisting

of the chairperson and the minority vice-chairperson of the senate

judiciary committee or the chairperson's or minority vice-

chairperson's designee, who must be members of that committee.

(b) Two individuals who are members of the house of

representatives, consisting of the chairperson and the minority

vice-chairperson of the house of representatives judiciary

committee or the chairperson's or minority vice-chairperson's

designee, who must be members of that committee.

crime victims.

(d) One individual who is a circuit court judge, appointed

from a list of 3 names submitted by the Michigan judges

association.

(e) One individual who is a district court judge, appointed

from a list of 3 names submitted by the Michigan district judges

association.

(f) One individual who represents the prosecuting attorneys of

this state, appointed from a list of 3 names submitted by the

prosecuting attorneys association of Michigan.

(g) One individual who represents criminal defense attorneys,

appointed from a list of 3 names submitted by the criminal defense

attorneys of Michigan.

(h) One individual appointed from a list of 3 names submitted

by the Michigan sheriff's association.

(i) One individual appointed from a list of 3 names submitted

by the director of the Michigan department of corrections.

(j) One individual who represents advocates of alternatives to

incarceration.

(k) One individual who is a mental health expert.

(l) One individual appointed from a list of 3 names submitted

by the Michigan association of counties.

(m) One individual who represents community corrections

agencies.

(2) The governor shall designate 1 member of the criminal

justice policy commission as chairperson.

(3) Except as otherwise provided in this subsection, the

commission members shall be appointed for terms of 4 years. Of the

members first appointed under subsection (1)(c) to (m), 4 members

shall serve for 2 years, 4 members shall serve for 3 years, and 3

members shall serve for 4 years. The members of the commission

appointed under subsection (1)(a) and (b) shall be appointed for

terms of 2 years.

(4) A vacancy on the commission caused by the expiration of a

term or a resignation or death shall be filled in the same manner

as the original appointment. A member appointed to fill a vacancy

caused by a resignation or death shall be appointed for the balance

of the unexpired term.

(5) A commission member shall not receive a salary for being a

commission member but shall be reimbursed for his or her

reasonable, actual, and necessary expenses incurred in the

performance of his or her duties as a commission member.

(6) The commission may establish subcommittees that may

consist of individuals who are not members of the commission,

including, but not limited to, experts in matters of interest to

the commission.

(7) The commission's business shall be conducted at public

meetings held in compliance with the open meetings act, 1976 PA

267, MCL 15.261 to 15.275.

(8) A quorum consists of a majority of the members of the

sentencing commission. All commission business shall be conducted

by not less than a quorum.

(9) A writing prepared, owned, used, in the possession of, or

retained by the commission in the performance of an official

function shall be made available to the public in compliance with

the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.

(10) The legislative council shall provide the commission with

suitable office space, staff, and necessary equipment.

Sec. 33a. (1) The criminal justice policy commission shall do

all of the following:

(a) Collect, prepare, analyze, and disseminate information

regarding state and local sentencing and release policies and

practices for felonies and the use of prisons and jails.

(b) Collect and analyze information concerning how misdemeanor

sentences and the detention of defendants pending trial affect

local jails.

the sentencing guidelines in achieving the purposes set forth in

subdivision (f).

(d) In cooperation with the department of corrections,

collect, analyze, and compile data and make projections regarding

the populations and capacities of state and local correctional

facilities, the impact of the sentencing guidelines and other laws,

rules, and policies on those populations and capacities, and the

effectiveness of efforts to reduce recidivism. Measurement of

recidivism shall include, as applicable, analysis of all of the

following:

(i) Rearrest rates, resentence rates, and return to prison

rates.

(ii) One-, 2-, and 3-year intervals after exiting prison or

jail and after entering probation.

(iii) The statewide level, and by locality and discrete program,

to the extent practicable.

(e) In cooperation with the state court administrator,

collect, analyze, and compile data regarding the effect of

sentencing guidelines on the caseload, docket flow, and case

backlog of the trial and appellate courts of this state.

(f) Develop modifications to the sentencing guidelines. Any

modifications to the sentencing guidelines shall accomplish all of

the following:

(i) Provide for the protection of the public.

(ii) Consider offenses involving violence against a person or

serious and substantial pecuniary loss as more severe than other

offenses.

(iii) Be proportionate to the seriousness of the offense and the

offender's prior criminal record.

(iv) Reduce sentencing disparities based on factors other than

offense characteristics and offender characteristics and ensure

that offenders with similar offense and offender characteristics

receive substantially similar sentences.

(v) Specify the circumstances under which a term of

imprisonment is proper and the circumstances under which

intermediate sanctions are proper.

(vi) Establish sentence ranges for imprisonment that are within

the minimum and maximum sentences allowed by law for the offenses

to which the ranges apply.

(vii) Maintain separate sentence ranges for convictions under

the habitual offender provisions in sections 10, 11, 12, and 13 of

this chapter, which may include as an aggravating factor, among

other relevant considerations, that the accused has engaged in a

pattern of proven or admitted criminal behavior.

(viii) Establish sentence ranges that the commission considers

appropriate.

(ix) Consider the necessity for local corrections system

capacity and maintain funding to ensure that capacity.

(g) Consider the suitability and impact of offense variable

scoring with regard to physical and psychological injury to victims

and victims' families.

(2) In developing modifications to the sentencing guidelines,

the commission shall submit to the legislature a prison and jail

impact report relating to any modifications to the sentencing

guidelines. The report shall include the projected impact on total

capacity of state and local correctional facilities.

(3) Modifications to sentencing guidelines shall include

recommended intermediate sanctions for each case in which the upper

limit of the recommended minimum sentence range is 18 months or

less.

(4) The commission may recommend modifications to any law,

administrative rule, or policy that affects sentencing or the use

and length of incarceration. The recommendations shall reflect all

of the following policies:

(a) To render sentences in all cases within a range of

severity proportionate to the gravity of offenses, the harms done

to crime victims, and the blameworthiness of offenders.

(b) When reasonably feasible, to achieve offender

rehabilitation, general deterrence, incapacitation of dangerous

offenders, restoration of crime victims and communities, and

reintegration of offenders into the law-abiding community.

achieve the applicable purposes in subdivisions (a) and (b).

(d) To preserve judicial discretion to individualize sentences

within a framework of law.

(e) To produce sentences that are uniform in their reasoned

pursuit of the purposes in subsection (1).

(f) To eliminate inequities in sentencing and length of

incarceration across population groups.

(g) To encourage the use of intermediate sanctions.

(h) To ensure that adequate resources are available for

carrying out sentences imposed and that rational priorities are

established for the use of those resources.

(i) To promote research on sentencing policy and practices,

including assessments of the effectiveness of criminal sanctions as

measured against their purposes.

(j) To increase the transparency of the sentencing and

corrections system, its accountability to the public, and the

legitimacy of its operations.

(5) The commission shall submit any recommended modifications

to the sentencing guidelines or to other laws, administrative

rules, or policies to the senate majority leader, the speaker of

the house of representatives, and the governor.

(6) By December 1, 2015, the commission shall submit to the

legislature, the governor, and the Michigan supreme court a report

on the implementation of legislative policies adopted in 2014

affecting the criminal justice system. The report shall include,

but not be limited to, all of the following:

(a) Education of practitioners on changes in legislative

policy.

(b) The length of probation supervision terms imposed.

sanctions probation.

(d) The number of noncompliance, risk, and major risk

sanctions imposed on the probation population.

(e) Noncompliance and risk sanctions imposed on the parole

supervision population.

(f) Parole guideline decisions.

(g) Victim restitution collection data in the courts and the

department of corrections.

(h) Implementation of revisions to the community corrections

act, 1988 PA 511, MCL 791.401 to 791.414.

Sec. 34. (1) The sentencing guidelines promulgated by order of

the Michigan supreme court do not apply to felonies enumerated in

part 2 of chapter XVII committed on or after January 1, 1999.

(2) Except as otherwise provided in this subsection or for a

departure from the appropriate minimum sentence range provided for

under subsection (3), the minimum sentence imposed by a court of

this state for a felony enumerated in part 2 of chapter XVII

committed on or after January 1, 1999 shall be within the

appropriate sentence range under the version of those sentencing

guidelines in effect on the date the crime was committed. Both of

the following apply to minimum sentences under this subsection:

(a) If a statute mandates a minimum sentence for an individual

sentenced to the jurisdiction of the department of corrections, the

court shall impose sentence in accordance with that statute.

Imposing a mandatory minimum sentence is not a departure under this

section. If a statute mandates a minimum sentence for an individual

sentenced to the jurisdiction of the department of corrections and

the statute authorizes the sentencing judge to depart from that

minimum sentence, imposing a sentence that exceeds the recommended

sentence range but is less than the mandatory minimum sentence is

not a departure under this section. If the Michigan vehicle code,

1949 PA 300, MCL 257.1 to 257.923, mandates a minimum sentence for

an individual sentenced to the jurisdiction of the department of

corrections and the Michigan vehicle code, 1949 PA 300, MCL 257.1

to 257.923, authorizes the sentencing judge to impose a sentence

that is less than that minimum sentence, imposing a sentence that

exceeds the recommended sentence range but is less than the

mandatory minimum sentence is not a departure under this section.

(b) The court shall not impose a minimum sentence, including a

departure, that exceeds 2/3 of the statutory maximum sentence.

(3) A court may depart from the appropriate sentence range

established under the sentencing guidelines set forth in chapter

XVII if the court has a substantial and compelling reason for that

departure and states on the record the reasons for departure. All

of the following apply to a departure:

(a) The court shall not use an individual's gender, race,

ethnicity, alienage, national origin, legal occupation, lack of

employment, representation by appointed legal counsel,

representation by retained legal counsel, appearance in propria

persona, or religion to depart from the appropriate sentence range.

(b) The court shall not base a departure on an offense

characteristic or offender characteristic already taken into

account in determining the appropriate sentence range unless the

court finds from the facts contained in the court record, including

the presentence investigation report, that the characteristic has

been given inadequate or disproportionate weight.

(4) Intermediate sanctions shall be imposed under this chapter

as follows:

(a) If the upper limit of the recommended minimum sentence

range for a defendant determined under the sentencing guidelines

set forth in chapter XVII is 18 months or less, the court shall

impose an intermediate sanction unless the court states on the

record a substantial and compelling reason to sentence the

individual to the jurisdiction of the department of corrections. An

intermediate sanction may include a jail term that does not exceed

the upper limit of the recommended minimum sentence range or 12

months, whichever is less, and a subsequent term of probation

supervision at least equal to the jail term.

(b) If an attempt to commit a felony designated in offense

class H in part 2 of chapter XVII is punishable by imprisonment for

more than 1 year, the court shall impose an intermediate sanction

upon conviction of that offense absent a departure.

exceeds 18 months and the lower limit of the recommended minimum

sentence is 12 months or less, the court shall sentence the

offender as follows absent a departure:

(i) To imprisonment with a minimum term within that range.

(ii) To an intermediate sanction that may include a term of

imprisonment of not more than 12 months and a subsequent term of

probation supervision at least equal to the term of imprisonment.

(5) If a crime has a mandatory determinant penalty or a

mandatory penalty of life imprisonment, the court shall impose that

penalty. This section does not apply to sentencing for that crime.

(6) As part of the sentence, the court may also order the

defendant to pay any combination of a fine, allowable costs, or

applicable assessments. The court shall order payment of

restitution as provided by law.

(7) If the trial court imposes on a defendant a minimum

sentence that is longer or more severe than the appropriate

sentence range, as part of the court's advice of the defendant's

rights concerning appeal, the court shall advise the defendant

orally and in writing that he or she may appeal the sentence as

provided by law on grounds that it is longer or more severe than

the appropriate sentence range.

(8) All of the following shall be part of the record filed for

an appeal of a sentence under this section:

(a) An entire record of the sentencing proceedings.

(b) The presentence investigation report. Any portion of the

presentence investigation report exempt from disclosure by law

shall not be a public record.

in imposing sentence.

(9) An appeal of a sentence under this section does not stay

execution of the sentence.

(10) If a minimum sentence is within the appropriate

guidelines sentence range, the court of appeals shall affirm that

sentence and shall not remand for resentencing absent an error in

scoring the sentencing guidelines or inaccurate information relied

upon in determining the defendant's sentence. A party shall not

raise on appeal an issue challenging the scoring of the sentencing

guidelines or challenging the accuracy of information relied upon

in determining a sentence that is within the appropriate guidelines

sentence range unless the party has raised the issue at sentencing,

in a proper motion for resentencing, or in a proper motion to

remand filed in the court of appeals.

(11) If, upon a review of the record, the court of appeals

finds the trial court did not have a substantial and compelling

reason for departing from the appropriate sentence range, the court

shall remand the matter to the sentencing judge or another trial

court judge for resentencing under this chapter.

(12) Time served on the sentence appealed under this section

is considered time served on any sentence imposed after remand.

Sec. 35. (1) The department of corrections shall operate a

jail reimbursement program that provides funding to counties for

housing felony offenders in county jails who otherwise would have

been sentenced to prison and under both of the following:

(a) Section 4(1)(b) and (c) of chapter XI.

(b) Section 40a of the corrections code of 1953, 1953 PA 232,

MCL 791.240a.

(2) The ~~criteria for reimbursement, including but not limited~~

~~to criteria for determining those offenders who otherwise would~~

~~have been sentenced to prison, and the~~ rate of reimbursement shall

be established in the annual appropriations acts for the department

of corrections and shall not be less than $35.00 per diem per

offender serving a sanction for a parole or probation violation.

The department of corrections shall submit to the legislature a

projected budget to address county expenses for housing felony

offenders in county jails, and the legislature shall fund the

budget as provided by law.

Enacting section 1. This amendatory act does not take effect

unless Senate Bill No. ____ or House Bill No. 5930 (request no.

06303'14) of the 97th Legislature is enacted into law.