HB-4101, As Passed House, March 7, 2018

SUBSTITUTE FOR

HOUSE BILL NO. 4101

     A bill to amend 1953 PA 232, entitled

"Corrections code of 1953,"

by amending section 35 (MCL 791.235), as amended by 2012 PA 24.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 35. (1) The release of a prisoner on parole shall must be

granted solely upon the initiative of the parole board. The parole

board may grant a parole without interviewing the prisoner.

However, beginning January 26, 1996, the parole board may grant a

parole without interviewing the prisoner only if, after evaluating

the prisoner according to the parole guidelines, the parole board

determines that the prisoner has a high probability of being

paroled and the parole board therefore intends to parole the

prisoner. Except as provided in subsection (2), a prisoner shall

must not be denied parole without an interview before 1 member of

the parole board. The interview shall must be conducted at least 1

month before the expiration of the prisoner's minimum sentence less

applicable good time and disciplinary credits for a prisoner

eligible for good time and disciplinary credits, or at least 1

month before the expiration of the prisoner's minimum sentence for

a prisoner subject to disciplinary time. The parole board shall

consider any statement made to the parole board by a crime victim

under the William Van Regenmorter crime victim's rights act, 1985

PA 87, MCL 780.751 to 780.834, or under any other provision of law.

The parole board shall not consider any of the following factors in

making a parole determination:

     (a) A juvenile record that a court has ordered the department

to expunge.

     (b) Information that is determined by the parole board to be

inaccurate or irrelevant after a challenge and presentation of

relevant evidence by a prisoner who has received a notice of intent

to conduct an interview as provided in subsection (4). This

subdivision applies only to presentence investigation reports

prepared before April 1, 1983.

     (2) Beginning January 26, 1996, if, If, after evaluating a

prisoner according to the parole guidelines, the parole board

determines that the prisoner has a low probability of being paroled

and the parole board therefore does not intend to parole the

prisoner, the parole board is not required to interview the

prisoner before denying parole to the prisoner.

     (3) The parole board may consider but shall not base a

determination to deny parole solely on either of the following:

     (a) A prisoner's marital history.

     (b) Prior arrests not resulting in conviction or adjudication

of delinquency.

     (4) If an interview is to be conducted, the prisoner shall

must be sent a notice of intent to conduct an interview at least 1

month before the date of the interview. The notice shall must state

the specific issues and concerns that shall will be discussed at

the interview and that may be a basis for a denial of parole. A

denial of parole shall must not be based on reasons other than

those stated in the notice of intent to conduct an interview except

for good cause stated to the prisoner at or before the interview

and in the written explanation required by subsection (12). This

subsection does not apply until April 1, 1983.(20).

     (5) Except for good cause, the parole board member conducting

the interview shall not have cast a vote for or against the

prisoner's release before conducting the current interview. Before

the interview, the parole board member who is to conduct the

interview shall review pertinent information relative to the notice

of intent to conduct an interview.

     (6) A prisoner may waive the right to an interview by 1 member

of the parole board. The waiver of the right to be interviewed

shall must be given not more than 30 days after the notice of

intent to conduct an interview is issued and shall be made must be

in writing. During the interview held pursuant to a notice of

intent to conduct an interview, the prisoner may be represented by

an individual of his or her choice. The representative shall must

not be another prisoner or an attorney. A prisoner is not entitled

to appointed counsel at public expense. The prisoner or

representative may present relevant evidence in support of release.

     (7) At least 90 days before the expiration of the prisoner's

minimum sentence less applicable good time and disciplinary credits

for a prisoner eligible for good time or disciplinary credits, or

at least 90 days before the expiration of the prisoner's minimum

sentence for a prisoner subject to disciplinary time, or the

expiration of a 12-month continuance for any prisoner, or at the

request of the parole board for a prisoner being considered for

parole under subsection (10), a parole eligibility report shall

must be prepared by appropriate institutional staff. The parole

eligibility report shall be considered is pertinent information for

purposes of subsection (5). The report shall must include all of

the following:

     (a) A statement of all major misconduct charges of which the

prisoner was found guilty and the punishment served for the

misconduct.

     (b) The prisoner's work and educational record while confined.

     (c) The results of any physical, mental, or psychiatric

examinations of the prisoner that may have been performed.

     (d) Whether the prisoner fully cooperated with the state by

providing complete financial information as required under section

3a of the state correctional facility reimbursement act, 1935 PA

253, MCL 800.403a.

     (e) Whether the prisoner refused to attempt to obtain

identification documents under section 34c, if applicable.

     (f) For a prisoner subject to disciplinary time, a statement

House Bill No. 4101 as amended March 7, 2018

of all disciplinary time submitted for the parole board's

consideration under section 34 of 1893 PA 118, MCL 800.34.

     (8) The preparer of the report shall not include a

recommendation as to release on parole.

     (9) Psychological evaluations performed at the request of the

parole board to assist it in reaching a decision on the release of

a prisoner may be performed by the same person who provided the

prisoner with therapeutic treatment, unless a different person is

requested by the prisoner or parole board.

     (10) [TheExcept for a prisoner who was convicted under section

 316 or 520b of the Michigan penal code, 1931 PA 328, MCL 750.316 and 750.520b, the] parole board may grant a medical parole for a

prisoner determined to be physically or mentally incapacitated.

medically frail. A decision to grant a medical parole shall must be

initiated upon the recommendation of the bureau of health care

services. and shall be reached only after a review of the medical,

institutional, and criminal records of the prisoner.If the bureau

of health care services believes that the prisoner is medically

frail, the bureau shall utilize 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 to the bureau. The parole board, in consultation with the

bureau of health care services, shall determine whether the

prisoner is medically frail. If the parole board determines that a

prisoner is medically frail and is going to be considered for

parole under this subsection, the parole board shall provide the

notice and medical records required under section 34(19). Unless

the prosecutor of the county from which the prisoner was committed

files a motion under section 34(20), the parole board may grant

House Bill No. 4101 as amended March 7, 2018

parole to a prisoner who is determined to be medically frail. The

requirements of sections 33(1)(b), (c), (d), and (f), 33b, and

34(1), (2), (3), (4),[(7),] (8), (14), (15), (16),[(17),] and (18) do not

apply

to a parole granted under this subsection.

     (11) The following conditions apply to a parole granted under

subsection (10):

     (a) A prisoner must only be released on parole under

subsection (10) if he or she agrees to all of the following:

     (i) His or her placement, or, if the prisoner is unable to

consent because of the prisoner's physical or mental health

condition, an individual legally entitled to agree to the

prisoner's placement agrees that the prisoner be placed in a

medical facility approved by the parole board where medical care

and treatment can be provided.

     (ii) To the release of his or her medical records that are

directly relevant to the condition or conditions rendering the

prisoner medically frail to the prosecutor and sentencing or

successor judge of the county from which the prisoner was committed

before the parole board determines whether or not to grant the

prisoner parole under subsection (10).

     (iii) An independent medical exam if sought by the prosecutor

of the county from which the prisoner was committed as provided

under section 34(20).[If possible, this independent medical exam must

 occur at a facility of the department. The reasonable costs of this independent medical exam must be paid for by the department.]

     (b) The parolee shall adhere to the terms of his or her parole

for the length of his or her parole term.

     (c) The parole must be for a term not less than the time

necessary to reach the prisoner's earliest release date.

     (d) A parolee who violates the terms of his or her parole or

is determined to no longer meet the definition of medically frail

may be transferred to a setting more appropriate for the medical

needs of the parolee or be subject to the parole violation process

under sections 38, 39, 39a, and 40a as determined by the parole

board and the department.

     (e) The parolee must only be placed in a medical facility that

agrees to accept the parolee and that is agreed upon by the parolee

as described in subdivision (a)(i).

     (12) The parolee or an individual legally entitled to agree to

the parolee's placement under subsection (11)(a)(i) shall

immediately inform the parole board if any of the following occur:

     (a) The parolee is no longer eligible for care at the medical

facility at which he or she was placed.

     (b) The parolee must be moved to another location for medical

care.

     (c) The parolee is no longer at the medical facility approved

by the parole board.

     (d) The parolee no longer needs the level of care that

resulted in the parolee's placement at the medical facility.

     (13) The parole board shall immediately notify the prosecutor

for the county in which the offender was convicted and the

sentencing or successor judge if the parolee is no longer eligible

for care or no longer needs the level of care for which the

prisoner was placed at the medical facility.

     (14) The department shall not retain authority over the

medical treatment plan for a prisoner granted parole under

subsection (10) and a prisoner granted parole under subsection (10)

must have full patient rights at the medical facility where he or

she is placed.

     (15) The department and the parole board shall ensure that the

placement and terms and conditions of a parole granted under

subsection (10) do not violate any other state or federal

regulations.

     (16) A medical facility housing prisoners granted parole under

subsection (10) must be operated in a manner that ensures the

safety of the residents of the medical facility.

     (17) A parolee granted parole under subsection (10) and placed

in a medical facility has the same patient rights and

responsibilities as any other individual who is a resident of or

has been admitted to the medical facility.

     (18) The process for a parole determination under subsection

(10) does not change or affect any of the rights afforded to a

victim under the William Van Regenmorter crime victim's rights act,

1985 PA 87, MCL 780.751 to 780.834.

(19) (11) The department shall submit a petition to the

appropriate court under section 434 of the mental health code, 1974

PA 258, MCL 330.1434, for any prisoner being paroled or being

released after serving his or her maximum sentence whom the

department considers to be a person requiring treatment. The parole

board shall require mental health treatment as a special condition

of parole for any parolee whom the department has determined to be

a person requiring treatment whether or not the petition filed for

that prisoner is granted by the court. As used in this subsection,

"person requiring treatment" means that term as defined in section

401 of the mental health code, 1974 PA 258, MCL 330.1401.

(20) (12) When the parole board makes a final determination

not to release a prisoner, the prisoner shall must be provided with

a written explanation of the reason for denial and, if appropriate,

specific recommendations for corrective action the prisoner may

take to facilitate release.

(21) (13) This section does not apply to the placement on

parole of a person in conjunction with special alternative

incarceration under section 34a(7).

     (22) As used in this section:

(a) "Activities of daily living" means basic personal care and

everyday activities as described in 42 CFR 441.505, including, but

not limited to, tasks such as eating, toileting, grooming,

dressing, bathing, and transferring from 1 physical position to

another, including, but not limited to, moving from a reclining

position to a sitting or standing position.

     (b) "Medical facility" means a hospital, hospice, nursing

home, or other housing accommodation providing medical treatment

suitable to the condition or conditions rendering the prisoner

medically frail.

     (c) "Medically frail" describes an individual who is a minimal

threat to society as a result of his or her medical condition, who

has received a risk score of low on a validated risk assessment,

whose recent conduct in prison indicates he or she is unlikely to

engage in assaultive conduct, whose ability to perform 2 or more

activities of daily living is significantly impaired, and who may

have limited mobility and ability to transfer from 1 physical

position to another as the result of 1 or more of the following

conditions from which the individual is not expected to recover:

     (i) A disabling mental disorder, including dementia,

Alzheimer's, or a similar degenerative brain disorder.

     (ii) A serious and complex medical condition.

     (iii) A physical disability.

     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. 4102 of the 99th Legislature is enacted into

law.