In re Elias
| Decision Date | 01 November 2011 |
| Docket Number | Docket No. 300113. |
| Citation | 811 N.W.2d 541,294 Mich.App. 507 |
| Court | Court of Appeal of Michigan — District of US |
| Parties | In re Parole of ELIAS. |
OPINION TEXT STARTS HERE
Eric J. Smith, Prosecuting Attorney, Joshua D. Abbott and Kerry Ange, Assistant Prosecuting Attorneys, for the Macomb County Prosecutor.
State Appellate Defender (by Susan M. Meinberg), Detroit, for Michelle Elias.
Bill Schuette, Attorney General, John J. Bursch, Solicitor General, and H. Steven Langschwager, Assistant Attorney General, for the Parole Board.
Before: MARKEY, P.J., and SAAD and GLEICHER, JJ.
The Michigan Parole Board (the Board) granted Michelle Elias parole after she had served approximately 25 years of a 20– to 40–year sentence. The Macomb County Prosecutor objected to Elias's release and sought leave in the circuit court to appeal the Board's parole decision. The circuit court ruled that the Board abused its discretion by granting Elias parole and found that substantial and compelling reasons supported her continued incarceration. We conclude that the circuit court invaded the Board's authority and substituted its judicial judgment for that of the Board. Specifically, the Board fully adhered to the statutes, regulations, and internal procedures governing parole decisions, thoroughly reviewed the facts and circumstances before paroling Elias, and granted parole based on objective scoring strongly supporting Elias's paroled release. Because the circuit court overstepped the bounds of judicial review, we reverse and reinstate the Board's grant of parole.
There is scant published caselaw analyzing the multipart mechanics of Michigan's current parole process. Consequently, circuit courts lack useful precedent when called upon to review the propriety of a parole decision. We take this opportunity to explain the elements culminating in a parole decision and offer guidance to circuit courts confronted with a parole-decision challenge.
The Legislature created the Parole Board as part of the Michigan Department of Corrections (DOC). MCL 791.231a. The Board consists of 10 members serving staggered terms. Id. 1 A prisoner sentenced to a term of years comes under the jurisdiction of the Board when he or she has served the minimum sentence, adjusted for any good time or disciplinary credits. MCL 791.233(1)(b) through (d); MCL 791.234(1) through (5). Several months before the prisoner's earliest release date, a DOC staff member must conduct an in-depth evaluation of the prisoner in order to advise the Board. A prison staff member prepares for the Board's review a “Parole Eligibility Report” (PER) summarizing the “prisoner's prior record, adjustment and other information[.]” DOC Policy Directive 06.05.103, p. 1; 2 see also MCL 791.235(7). In preparing a PER, the staff member interviews the prisoner and gathers vital documentation, such as the results of any mental-health examinations and evaluations from prison programs. DOC Policy Directive 06.05.103, ¶¶ I, M, p. 2. The PER “shall contain information as required by MCL 791.235” 3 and any other information requested by the Board for its review. Id. at ¶ O, p. 2. Prison officials submit the PER to the Board's “Case Preparation Unit,” along with the contents of the prisoner's central file. The unit uses the PER and file documents to score the prisoner's parole guidelines. DOC Policy Directive 06.05.100, ¶ D, p. 1.
Statutorily mandated parole guidelines form the backbone of the parole-decision process. As described by this Court in In re Parole of Johnson, 219 Mich.App. 595, 599, 556 N.W.2d 899 (1996), “[t]he parole guidelines are an attempt to quantify the applicable factors that should be considered in a parole decision” and are “intended to inject more objectivity and uniformity into the process in order to minimize recidivism and decisions based on improper considerations such as race.” The Legislature directed that the DOC refine the statutory guidelines by developing more detailed regulations “to assist the [Board] in making release decisions that enhance the public safety.” MCL 791.233e(1). The DOC has fulfilled this command by promulgating detailed regulations and adopting policies and procedures consistent with the regulations.
In MCL 791.233e(2) and (3) the Legislature enumerated both mandatory and permissive factors for parole guidelines to be incorporated in the DOC's more comprehensive regulatory scheme:
(2) In developing the parole guidelines, the [DOC] shall consider factors including, but not limited to, the following:
(a) The offense for which the prisoner is incarcerated at the time of parole consideration.
(b) The prisoner's institutional program performance.
(c) The prisoner's institutional conduct.
(d) The prisoner's prior criminal record....
(e) Other relevant factors as determined by the [DOC], if not otherwise prohibited by law.
(3) In developing the parole guidelines, the [DOC] may consider both of the following factors:
(a) The prisoner's statistical risk screening.
(b) The prisoner's age.
Pursuant to this legislative mandate, the DOC promulgated regulations outlining certain factors for the Board to consider when making a parole decision:
(2) The [Board] may consider all of the following factors in determining whether parole is in the best interests of society and public safety:
(a) The prisoner's criminal behavior, including all of the following:
(i) The nature and seriousness of the offenses for which the prisoner is currently serving.
(ii) The number and frequency of prior criminal convictions.
(iii) Pending criminal charges.
(iv) Potential for committing further assaultive or property crimes.
(v) Age as it is significant to the likelihood of further criminal behavior.
(b) Institutional adjustment, as reflected by the following:
(i) Performance at work or on school assignments.
(ii) Findings of guilt on major misconduct charges and periods of confinement in administrative segregation.
(iii) Completion of recommended programs.
(iv) Relationships with staff and other prisoners.
(v) Forfeitures or restorations of good time or disciplinary credits.
(c) Readiness for release as shown by the following:
(i) Acquisition of a vocational skill or educational degree that will assist in obtaining employment in the community.
(ii) Job performance in the institution or on work-pass.
(iii) Development of a suitable and realistic parole plan.
(d) The prisoner's personal history and growth, including the following:
(i) Demonstrated willingness to accept responsibility for past behavior.
(ii) Employment history before incarceration.
(iii) Family or community ties.
(e) The prisoner's physical and mental health, ... which would reduce the likelihood that he or she would be able to commit further criminal acts.
(3) The [Board] may consider the prisoner's marital history and prior arrests that did not result in conviction or adjudication of delinquency, but shall not base a denial of parole solely on either of these factors.
* * *
(5) A prisoner being considered for parole shall receive psychological or psychiatric evaluation before the release decision is made if the prisoner has a history of any of the following:
(a) Hospitalization for mental illness within the past 2 years.
(b) Predatory or assaultive sexual offenses.
(c) Serious or persistent assaultiveness within the institution. [Mich Admin Code, R 791.7715(2), (3), and (5).]
Thus, the comprehensive regulatory parole guidelines supplement the legislative guidelines by adding highly specific, objective criteria that must be considered during the parole-decision process.
When scoring the parole guidelines, the Board must consider “all relevant facts and circumstances, including the prisoner's probability of parole as determined by the parole guidelines ... and any crime victim's statement....” Mich. Admin. Code, R 791.7715(1). Under Mich. Admin. Code, R 791.7716(3), the scoring must be based on “the length of time the prisoner has been incarcerated for the offense for which parole is being considered and each of the following factors”:
(a) The nature of the offense(s) for which the prisoner is incarcerated at the time of parole consideration, as reflected by all of the following aggravating and mitigating circumstances:
(i) Use of a weapon or threat of a weapon.
(ii) Physical or psychological injury to a victim.
(iii) Property damage of more than $5,000.00.
(iv) Excessive violence or cruelty to a victim beyond that necessary to commit the offense.
(v) Sexual offense or sexually assaultive behavior.
(vi) Victim transported or held captive beyond that necessary to commit the offense.
(vii) Multiple victims.
(viii) Unusually vulnerable victim, as reflected by age, impairment, or physical disproportionality.
(ix) The prisoner acted as a leader of joint offenders.
(x) The prisoner has been designated as involved in organized crime....
(xi) The prisoner has been designated as being a career criminal....
(xii) The prisoner has been designated as a drug trafficker....
(xiii) The prisoner is serving life or a long indeterminate sentence and is being considered for parole under [MCL 791.234(4) ].
(xiv) The act was a situational crime with low probability of reoccurrence.
(xv) The prisoner's role was minor or peripheral to other joint offenders.
(b) The prisoner's prior criminal record, as reflected by all of the following:
(i) Assaultive misdemeanor convictions that occurred after the prisoner's seventeenth birthday.
(ii) The number of jail and prison sentences imposed.
(iii) The number of felony convictions.
(iv) The number of convictions for assaultive felonies....
(v) The number of prior convictions for sex offenses or sexually motivated crimes.
(vi) The number of...
To continue reading
Request your trial
-
In re Parole of Hill
...victim of the crime may apply for leave to appeal the Board's decision in the circuit court. MCL 791.234(11); In re Parole of Elias, 294 Mich.App. 507, 538, 811 N.W.2d 541 (2011). A prisoner “may respond to the application for leave to appeal through retained counsel or in propria persona, ......
-
People v. Eliason
...examine the severity of the crime, they omit regard for a youthful offender's unique characteristics. See In re Parole of Elias, 294 Mich.App. 507, 512–517, 811 N.W.2d 541 (2011). Uncertain, unpredictable, and unlikely parole does not substitute for factoring in on the “front end” a juvenil......
-
People v. Bennett
...past criminal offenses) and dynamic data (such as the prisoner's evolving attitudes and mental condition)." In re Elias , 294 Mich. App. 507, 520, 811 N.W.2d 541 (2011). TAP is the Transition Accountability Plan, considered "the lynchpin" of the Department of Corrections' reentry programmin......
-
In re Parole of Haeger
...of the prisoner's file, and prepare a summary “Parole Eligibility Report” (PER) to advise the Board. See In re Parole of Elias, 294 Mich.App. 507, 511, 811 N.W.2d 541 (2011), citing DOC Policy Directive 06.05.103, p 1,2 and MCL 791.235(7). Board staff members use this compiled information t......