People v. Lessard, Docket Nos. 7103
| Decision Date | 27 February 1970 |
| Docket Number | 7735,No. 2,Docket Nos. 7103,2 |
| Citation | 22 Mich.App. 342,177 N.W.2d 208 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert LESSARD, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leonard SCHULTZ, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Charles J. Porter, Bloomfield Hills, for Robert Lessard.
Douglas A. Chartrand, Pontiac, for Leonard Schultz.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas G. Plunkett, Jr., Pros. Atty., for appellee.
Before LESINSKI, C.J., and McGREGOR and V. J. BRENNAN, JJ.
On January 17, 1969, defendant Leonard Schultz was convicted by a jury of indecent liberties with a minor child. 1 On February 13, 1969, he was sentenced to a term of nine years, 364 Days to ten years in prison. On January 13, 1969, defendant Robert Lessard pled guilty to attempted breaking and entering with intent to commit felony or larceny. 2 On February 13, 1969, he was sentenced to a term of four years, 364 days to five years in prison. Since both defendants question the validity of an indeterminate sentence where the minimum term is set one day less than the maximum, we have consolidated the cases on appeal.
On the day that both defendants were sentenced, the trial judge, Circuit Court Judge Arthur Moore, announced a new sentencing policy. On May 28, 1969, during a hearing on a motion for new trial brought by defendant Lessard's co-defendant, Judge Moore articulated his policy: 3
'For five years I gave every person who had to be incarcerated in prison the very lowest minimum, which is set by statute, which is one year. And I advised the Corrections Department that I expected them to use their full discretion and release people whenever in their judgment the safety of society and the corrective treatment had been adequate for that individual. And I attempted to employ indeterminate sentence in its fullest extent for that reason.
'Now my experience * * * was that they paid no attention to their obligation to release when they found that correction had taken effect, and that the public was protected, but instead they pursued the same policy concering my effort to have full indeterminate sentence as they did with every other judge who used his prerogative of setting his sentencing date judgment on minimum imprisonment as an absolute. * * * 'I have a great deal of respect for the Corrections Department * * * and perhaps there are many reasons why they did what they did, but the long and short of the story is, * * * was they made no differential between my effort to give fully indeterminate sentence and the efforts of other judges to set a hard and fast minimum. And I resented it because I thought, I still believe that indeterminate sentence, with the wisdom of the psychologists, the psychiatrists, the corrective authorities, the social workers, and so forth, who ought to be attached to a prison system if it is going to be a corrective system, I then believed and I still believe that that skill of professional people should be used, instead of the present skill of a lawyer at the time of sentencing, who knows nothing about the future except as he guesses at it as to the future behavior or the future risk of a specific individual.
'That was the purpose, that was my disappointment. * * * I have advised the Corrections Department in relation to all my cases, that I will welcome their recommending earlier releases in any case and that I will cause some skilled people to review the matter based upon what they then know and what they then can tell us, and what they know about it originally, and will not stand in the way of an earlier release if it is a scientifically advisable release.
'What I am saying is, therefore, that your respondent here may be released at any time short of the minimum term providing the Corrections Department set the matter in motion after they have reviewed the matter and believe he is a creditable risk to society and a reformed individual sufficiently so that he will not likely be a danger to society.
'Now this gives your respondent in my judgment under the total statutes of the State, a better opportunity for earlier release and for what might truthfully be termed real indeterminate sentence, than the past policies of the Corrections Department and the policies of the Judges of this State whereby they eliminate this possibility of earlier release and stand by the minimum sentence of the Judge as the very earliest period for release less good time and special good time.
'Now one other thing. The records of the Corrections Department in the last few years, not this year, indicated that the failures of respondents on parole are in all cases above ten percent and in some cases running as high as forty, fifty, or sixty percent, and that there is no rhyme or reason as to release based upon probability of failure of sentence in specific types of cases.
'For instance, by and large the people who, commit murder are exceptionally good risks on parole, yet they are invariably detained far beyond any scientifically advised need or corrective treatment or longer detention. Unless we revert to the antiquated and I hope discontinued policy of punishing people for the purpose of punishing.
'On the other hand, the persons who steal cars invariably repeat to a high degree and should probably be kept in prison for many years beyond the period of sentence available, otherwise I would say that perhaps half of them are going to repeat and injure society later and the records so show.
'Now I mention all this because I think it is my duty and my job as a sentencing judge to be aware of these matters and try to do exactly what you in your good judgment as an excellent lawyer have tried to do for your individual client. The only thing is, I think I have a broader responsibility than you do, and it applies to every individual.
'It is for this reason that I believe the policy which I have established of advising the Corrections Department that they may release at any time on their recommendation, providing they gain my support and furnish some scientific reasons or case history or background information which I can review with the help of some experts here, including our local Probation Department and the policy that I have established, that I will follow their recommendation provided there is no obvious abuse of discretion in that regard and providing there are reasons for it and I think this comes nearer to the purpose of indeterminate sentence than the present existing policy carried on by the Corrections Department now.'
It is claimed that this policy contravenes the spirit and intent of the indeterminate sentence law, M.C.L.A. § 769.8 (Stat.Ann.1954 Rev. § 28.1080), by failing to consider individual factors as bearing on the length of the minimum sentence:
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