HB-5079, As Passed House, May 4, 2016

SUBSTITUTE FOR

HOUSE BILL NO. 5079

A bill to amend 1953 PA 232, entitled

"Corrections code of 1953,"

by amending sections 33, 33b, and 34 (MCL 791.233, 791.233b, and

791.234), section 33 as amended by 1998 PA 320, section 33b as

amended by 2010 PA 94, and section 34 as amended by 2010 PA 353.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

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

following:

(a) A prisoner shall 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 shall 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 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.

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

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 shall 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 shall 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 shall not be

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

diploma or earned its equivalent in the form of a general education

development (GED) 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 of corrections 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 general education development

certificate. If the prisoner does not have the necessary

proficiency in English, the department of corrections shall provide

English language training for that prisoner necessary for the

prisoner to begin working toward the completion of the requirements

for a general education development certificate. This subdivision

applies to prisoners sentenced for crimes committed after December

15, 1998. In providing an educational program leading to a high

school degree or general education development 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) Pursuant to the administrative procedures act of 1969,

1969 PA 306, MCL 24.201 to 24.328, the parole board may promulgate

rules not inconsistent with this act with respect to conditions to

be imposed upon prisoners paroled under this act.

Sec. 33b. A Except for a prisoner granted parole under section

35(10), a person convicted and sentenced for the commission of any

of the following crimes other than a prisoner subject to

disciplinary time is not eligible for parole until the person 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, and is not eligible for special parole:

(a) Section 13 of the Michigan penal code, 1931 PA 328, MCL

750.13.

(b) Section 14 of the Michigan penal code, 1931 PA 328, MCL

750.14.

328, MCL 750.72, 750.73, and 750.75.

(d) Section ~~80,~~ 82, 83, 84, 86, 87, 88, 89, or 90 of the

Michigan penal code, 1931 PA 328, MCL ~~750.80,~~ 750.82, 750.83,

750.84, 750.86, 750.87, 750.88, 750.89, and 750.90, or former

~~section 85~~ section 80 or 85 of that act.

(e) Section 91 or 92 of the Michigan penal code, 1931 PA 328,

MCL 750.91 and 750.92.

(f) Section 110, 112, or 116 of the Michigan penal code, 1931

PA 328, MCL 750.110, 750.112, and 750.116.

(g) Section 135 , or 136b(2) ~~, or 136b(3)~~ or (3) of the

Michigan penal code, 1931 PA 328, MCL 750.135 and 750.136b, or

former section 136a of that act.

(h) Section 158 of the Michigan penal code, 1931 PA 328, MCL

750.158.

(i) Section 160 of the Michigan penal code, 1931 PA 328, MCL

750.160.

(j) Former section 171 of the Michigan penal code, 1931 PA

328.

(k) Section 196 of the Michigan penal code, 1931 PA 328, MCL

750.196, or former section 194 of that act.

(l) Section 204, 207, 209, or 213 of the Michigan penal code,

1931 PA 328, MCL 750.204, 750.207, 750.209, and 750.213, or former

section 205, 206 or 208 of that act.

(m) Section 224, 226, or 227 of the Michigan penal code, 1931

PA 328, MCL 750.224, 750.226, and 750.227.

(n) Section 316, 317, 319, 321, 322, 323, 327, 328, or 329 of

the Michigan penal code, 1931 PA 328, MCL 750.316, 750.317,

750.319, 750.321, 750.322, 750.323, 750.327, 750.328, and 750.329.

(o) Former section 333 of the Michigan penal code, 1931 PA

328.

(p) Section 338, 338a, or 338b of the Michigan penal code,

1931 PA 328, MCL 750.338, 750.338a, and 750.338b, or former section

341 of that act.

(q) Section 349, 349a, or 350 of the Michigan penal code, 1931

PA 328, MCL 750.349, 750.349a, and 750.350.

(r) Section 357 of the Michigan penal code, 1931 PA 328, MCL

750.357.

(s) Section 386 or 392 of the Michigan penal code, 1931 PA

328, MCL 750.386 and 750.392.

(t) Section 397 or 397a of the Michigan penal code, 1931 PA

328, MCL 750.397 and 750.397a.

(u) Section 436 of the Michigan penal code, 1931 PA 328, MCL

750.436.

(v) Section 511 of the Michigan penal code, 1931 PA 328, MCL

750.511, or former section 517 of that act.

(w) Section 520b, 520c, 520d, or 520g of the Michigan penal

code, 1931 PA 382, MCL 750.520b, 750.520c, 750.520d, and 750.520g.

(x) Section 529, 529a, 530, or 531 of the Michigan penal code,

1931 PA 328, MCL 750.529, 750.529a, 750.530, and 750.531.

(y) Section 544 of the Michigan penal code, 1931 PA 328, MCL

750.544, or former section 545a of that act.

(z) Former section 2 of 1950 (Ex Sess) PA 38.

(aa) Former section 6 of 1952 PA 117.

(bb) Section 1, 2, or 3 of 1968 PA 302, MCL 752.541, 752.542,

and 752.543.

(cc) Section 7401(2)(a) ~~, 7401(2)(b),~~ or (b) or 7402(2)(a) ,

~~or 7402(2)(b)~~ or (b) of the public health code, 1978 PA 368, MCL

333.7401 and 333.7402.

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

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 shall be added to

compute the new maximum term under this subsection, and discharge

shall 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 shall be added to compute the new

maximum term under this subsection, and discharge shall 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.

(6) A prisoner sentenced to imprisonment for life for any of

the following is ~~not~~ eligible for parole under section 35(10) only

and is ~~instead~~ otherwise subject to the provisions of section 44:

(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.

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.

(e) First degree criminal sexual conduct in violation of

section 520b(2)(c) 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) 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 (6), is subject to the

jurisdiction of the parole board and may be placed on parole

according to the conditions prescribed in subsection (8) 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), 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.

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.

(8) A parole granted to a prisoner under subsection (6) who is

eligible under section 35(10) or under subsection (7) 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), 1 member of the

parole board shall interview the prisoner. The interview schedule

prescribed in this subdivision applies to all prisoners to whom

subsection (6) or (7) 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 be notified of the upcoming file

review at least 30 days before the file review takes place and

shall be allowed to submit written statements or documentary

evidence for the parole board's consideration in conducting the

file review.

which a public hearing is not required, a decision to grant or deny

parole to the prisoner shall 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 shall be given

to the sentencing judge, or the judge's successor in office, and

parole shall not be granted if the sentencing judge, or the judge's

successor in office, files written objections to the granting of

the parole within 30 days of receipt of the notice of hearing. The

written objections shall be made part of the prisoner's file.

(d) A parole granted under subsection (6) or (7) shall 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 Except for a

parole granted under section 35(10) for which a public hearing is

not required, a parole granted under subsection (7) is not valid

until the transcript of the record is filed with the attorney

general whose certification of receipt of the transcript shall be

returnable 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 (6) or (7) is a public

record.

(9) An interview conducted under subsection (8)(a) is subject

to both of the following requirements:

(a) The prisoner shall 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 shall 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)(b).~~(8)(c).

(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.

(i) Whether the individual was a principal administrator,

organizer, or leader of an entity that the individual knew or had

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.

(11) Except as provided in 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

be to the circuit court in the county from which the prisoner was

committed, by leave of the court.

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

office, determines on the record that a prisoner described in

subsection (7)(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) or (c) 2-1/2 years earlier than the

time otherwise indicated in subsection (7)(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.

(13) ~~Notwithstanding~~ Except for a prisoner granted parole

under section 35(10), and notwithstanding subsections (1) and (2),

~~an individual~~ 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.

(14) ~~Notwithstanding~~ Except for a prisoner granted parole

under section 35(10), and notwithstanding subsections (1) and (2),

~~an individual~~ 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.

(15) ~~Notwithstanding~~ Except for a prisoner granted parole

under section 35(10), and notwithstanding subsections (1) and (2),

~~an individual~~ 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.

(16) ~~Notwithstanding~~ Except for a prisoner granted parole

under section 35(10), and notwithstanding subsections (1) and (2),

~~an individual~~ 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.

(17) The parole board shall provide notice to the prosecuting

attorney of the county in which the ~~individual~~ prisoner was

convicted before granting parole to the ~~individual~~ prisoner under

subsection (13), (14), (15), or (16).

(18) As used in this section:

(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.

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

prisoners committed to the jurisdiction of the department.

Enacting section 1. This amendatory act does not take effect

unless House Bill No. 5078 of the 98th Legislature is enacted into

law.