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