People v. Hill, Docket No. 253327.

• Decision Date: 12 July 2005
• Docket Number: Docket No. 253327.
• Citation: 705 N.W.2d 139,267 Mich. App. 345
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward HILL, Defendant-Appellant.
• Court: Michigan Supreme Court

705 N.W.2d 139

267 Mich. App. 345

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward HILL, Defendant-Appellant.

Docket No. 253327.

Court of Appeals of Michigan.

Submitted June 7, 2005, at Lansing.

Decided July 12, 2005, at 9:15 a.m.

Released for Publication October 13, 2005.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and David A. King, Senior Assistant Prosecuting Attorney, for the people.

Michigan Clinical Law Program (by Paul D. Reingold), for the defendant. Ann Arbor.

Before: OWENS, P.J., and MARK J. CAVANAGH and NEFF, JJ.

PER CURIAM.

Defendant appeals by delayed leave granted, with the issue "limited to the question whether the parole board's `life means life' policy violates the Ex Post Facto Clause, U.S. Const, art I, § 10, cl 1." After review de novo of this question of law, we conclude that there is no such violation. See People v. Westman, 262 Mich.App. 184, 187, 685 N.W.2d 423 (2004).

Defendant was convicted of armed robbery in 1976. It appears that the sentencing judge gave defendant a choice of sentences, either a term of forty to sixty years' imprisonment or a parolable life term. Apparently, defendant's counsel advised defendant that he would be eligible for release sooner with a life sentence than with the sentence of an indeterminate term of years, and defendant chose the life sentence. That advice was allegedly supported by information from the Michigan Department of Corrections indicating that for most similarly situated offenders, those with a parolable life sentence could be released after serving twelve to fifteen years, while those with a forty-to sixty-year sentence would not be eligible for parole until after serving sixteen years. However, in the years since defendant's sentencing, particularly in 1992, the parole statutes were revised and the parole board was reorganized. Defendant claims that with the reorganization of the parole board in 1992 came a change in philosophy and decision-making policy with regard to the parole consideration given to parolable lifers including the implementation of a "life means life" policy.

On appeal, defendant argues that the application of this "life means life" policy to his sentence violates the federal Ex Post Facto Clause because his punishment has been increased. Defendant claims that this policy change, in practice, effectively rewrites his sentence and essentially eliminates parole for parolable lifers because "the parole board is no longer exercising its discretion in parolable lifer cases. Instead it has adopted a blanket policy, applied retroactively, of almost never releasing parolable lifers, no matter how strong their institutional records or how long their terms of incarceration." We disagree.

The first "lifer law" came into effect in 1941, granting parole eligibility to prisoners sentenced to life in prison for crimes other than first-degree murder after serving ten calendar years. Before its enactment, those life sentences would have to have been served in their entirety unless commuted by the Governor or a pardon was granted. The lifer law has been revised through the years, but at the time of defendant's sentencing, MCL 791.234 provided that he would be subject to the jurisdiction and authority of the parole board after serving ten calendar years. It also appears that at the time of defendant's sentencing, a perception commonly held by legal practitioners, as well as some judges, was that a "parolable life" sentence did not mean life; rather, it meant between twelve and twenty years in prison. See, e.g., People v. Lino (After Remand), 213 Mich.App. 89, 95-98, 539 N.W.2d 545 (1995), overruled by People v. Carson, 220 Mich.App. 662, 673-674, 560 N.W.2d 657 (1996); see, also, Prisons and Corrections Section of the State Bar of Michigan, What should "parolable life" mean? Judges respond to the controversy (March 2002), available at (accessed June 24, 2005). In fact, defendant's sentencing judge also believed that a parolable life sentence was less harsh than a long indeterminate term sentence because of the earlier opportunity for parole. This belief seems to have been somewhat supported by parole data; for example, from 1941 through 1974, 416 parole-eligible lifers were paroled, averaging twelve a year.

However, it appears that there was a change in parole practice, because from 1975 through 1992 only sixty-five parole-eligible lifers were paroled, for an average of less than four a year. In 1992, the parole board was restructured, both in number and composition, and it continued the practice of the prior seventeen years in granting fewer paroles. "The primary goal of the reorganization was to increase public safety by minimizing the number of dangerous and assaultive prisoners being placed on parole." Michigan Parole Board website, Introduction (accessed June 24, 2005). In a 1997 status report, then Michigan Department of Corrections Director Kenneth L. McGinnis, stated:

To reinforce public confidence in Michigan's penal system, Gov. John Engler in 1992 ordered an overhaul of the Parole Board and the way in which paroles were granted. The intent of the overhaul was to make Michigan's communities safer by making more criminals serve more time and keeping many more locked up for as long as possible.

* * *

Among the most important differences since the overhaul is a Parole Board that is much less willing to release criminals who complete their minimum sentences — and much less willing to release criminals at all, forcing many to serve their maximum sentences. [Michigan Department of Corrections, Five years after: An analysis of the Michigan parole board since 1992 (September 1997).]

On September 28, 1999, the chairperson of the parole board, Stephen Marschke, testified before the Legislature in support of proposed legislation¹ to amend the life law to eliminate the mandatory interview requirement. His written testimony stated:

It has been a long standing philosophy of the Michigan Parole Board that a life sentence means just that — life in prison. Of course, there are exceptions and parole may be appropriate under certain circumstances. The process to handle parole for a prisoner serving a life sentence is when a majority of the parole board votes to send that case to a public hearing. It is the parole board's belief that something exceptional must occur which would cause the parole board to request the sentencing judge or Governor to set aside a life sentence. Good behavior is expected and is not in and of itself grounds for parole.

And, in 2001, in prepared materials distributed at a judicial conference, representatives of the parole board stated:

"There are some who believe a life sentence equates to a number of years of confinement; i.e....