A few years ago, there were fifteen members appointed by then-Governor Granholm to comprise the “Parole and Commutation Board and Executive Clemency Advisory Council”.  The Board facilitated the parole review process at an improved rate and had the effect of reducing the population of prisoners within the Michigan Department of Corrections.  Coinciding with an increased number of paroles being granted was an increasing amount of appeals by prosecutors of Parole Board decisions.  Prisoners often find themselves facing this litigation alone.  Though the Attorney General represents the Parole Board in defending the parole decision, the Attorney General does not represent the inmate.  This month’s feature article was written by Susan Meinberg of the State Appellate Defender Office, a highly experienced Assistant Appellate Defender who has successfully defended several prosecutor-based appeals of Parole Board decisions to grant parole on behalf of inmates when the State Appellate Defender Office is appointed to the case by the Circuit Court.  Though Governor Snyder abolished the former Parole and Commutation Board by Executive Order1, and created the current 10-member Parole Board comprised of appointees designated by the Michigan Department of Corrections, appeals of parole board decisions continue.

The Editor

Michigan Court Rule 7.104(D) and Michigan Compiled Laws §791.234(11) allow the prosecutor and the victim to appeal a decision by the Parole Board to grant parole to a prisoner.  Prior to 2009, there were few appeals filed by prosecutors.  However, in 2009 parole appeals by prosecutors began to spike, especially in Oakland, Macomb and Berrien counties.  Most of these appeals are filed before the prisoner is released on parole, and the Circuit Court generally grants the prosecutor’s motion to stay parole, pending the court’s decision on the prosecutor’s appeal.  See Mich. Ct. R. 7.104(D)(2)(c)(iii)(B); Mich. Ct. R. 7.105(G).
 
 
 
Mich. Ct. R. 7.104(D) provides that a timely application for leave to appeal must be filed in the Circuit Court within 28 days after the Parole Board mails the Notice of Action to the prosecutor and the victim (if the victim has requested notification).2  A delayed application for leave to appeal can be filed within six months. See Mich. Ct. R. 7.104(D)(2)(b).

 The Circuit Court is required to determine whether to grant leave to appeal within 28 days after the application is filed.  Mich. Ct. R. 7.104(D)(3)b).  Prior to the hearing date, the Attorney General representing the Parole Board moves for intervenor status in most of these cases.

 The prisoner may respond to the application by counsel or in propria persona. Mich. Ct. R. 7.104(D)(2)(c)(iii). Prisoners responding pro se should be careful, as prosecutors will comb the pro se response for indicia that the prisoner still does not accept responsibility or express remorse.  Even an attempt at “lawyering,” i.e. “Defendant was allegedly convicted of second-degree murder,” will cause the prosecutor to insist the prisoner does not accept responsibility or have the requisite remorse.

 In some courtrooms, the judge appoints counsel to represent a prisoner who has either written in to request counsel or filed a motion to appoint counsel.  In other cases, when the appeal reaches the Michi-gan Supreme Court, that Court has ordered that counsel be appointed to represent the prisoner.  See In re Parole of Philip Joseph Paquette, 489 Mich. 982 (2011). The issue of whether the Circuit Court has the discretion to appoint counsel if deemed necessary is currently pending in the Court of Appeals.  See Prosecutor v. Ronald Wynn Hill, CA #301364.  Oral arguments in Hill were held on January 5, 2012.

 If the Circuit Court grants leave to appeal, the appellant’s brief is due within 28 days after the certified MDOC record is filed.  The appellee’s brief is due within 21 days after service of the appellant’s brief.  Mich. Ct. R. 7.104(D)(4)(d).  Under Mich. Ct. R. 7.104(D)(5), the burden of proof is on the appellant to show that the Parole Board’s decision was:

(a) in violation of the Michigan Constitution, a statute, an administrative rule, or a written agency regulation that is exempted from promulgation pursuant to M.C.L. §24.207, or

(b) a clear abuse of discretion.

In a parole context, an abuse of discretion occurs when the trial court’s decision “falls outside the range of reasonable and principled outcomes.” In re Parole of Michelle Elias, ___ Mich. App. ___ (CA #300113, 11/1/2011).3  The reviewing court “may not substitute its judgment for that of the Parole Board.” Hopkins v. Michigan Parole Board, 237 Mich. App. 629, 633 (1999). The Board has exclusive jurisdiction and discretion to parole a prisoner.  Morales v. Michigan Parole Board, 260 Mich. App. 29, 48 (2003).

Under M.C.L. §791.233(1)(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.  The record of appeal that is to be considered consists of the Central Office file at the Department of Cor-rections and any other documents considered by the Parole Board in reaching its decision. Mich. Ct. R. 7.104(D)(4)(c).  Any attempts by the prosecutor to ex-pand the record should be the subject of a motion to strike.

The Legislature has entrusted to the Parole Board the decision whether to grant or deny parole. M.C.L. §791.234(8).  The decision whether to grant or deny parole is within the Board’s discretion. Hopkins, supra, 632.  The Board’s discretion is limited, however, by statutory guidelines, and whe-ther it abused its discretion must be determined in light of the record and these statutory requirements.  Hopkins, citing In re Parole of Johnson, 219 Mich. App. 595, 598 (1996).

Statutorily mandated parole guidelines form the backbone of the parole decision process. These parole guidelines can be found at 2011 AC, R 791.7716(3).  See also MDOC Policy Directive 06.05.100A.  They are comprehensive and include highly specific, objective criteria including the nature of the offense for which the prisoner is incarcerated, the prisoner’s prior criminal record, the prisoner’s conduct during confinement, the prisoner’s placement on the assaultive and property risk screening scales, the prisoner’s age at the time of parole eligibility, the prisoner’s performance in institution programs and community programs, and the prisoner’s mental health.  After scoring the parole guidelines, a Preliminary Parole Guidelines score is determined. There is a paragraph in the parole guidelines which allows for an adjustment to this preliminary score:

“Prisoners having a Preliminary Parole Guidelines Score of -12 through +03 will have their score adjusted to +04 as a Final Parole Guidelines Score if all of the following conditions exist:

1. Prior criminal record points are 06 or less;

2. Not serving an active CSC sentence;
Conduct variable points are 0 or the prisoner is 45 years of age or older.

The Final Parole Guidelines Score is compared against the Probability of Parole Range Grid to determine the prisoner’s probability of parole range.”

 After applying this adjustment, the Final Parole Guidelines score is reached.  This score is used to fix a probability of parole for each prisoner.  A prisoner who scores +3 or higher is placed in the high probability of parole range.  A prisoner who scores -12 to +2, has an average probability of parole range, and a prisoner who scores -13 or less has a low probability of parole.  See MDOC Policy Directive 06.05.100A, p 10.

The Parole Board is required to follow the recommendation of the guidelines, unless it finds substantial and compelling reasons to deviate there from.  Scholtz v. Michigan Parole Board, 231 Mich. App. 104, 109-110 (1998); In re Parole of Johnson, 219 Mich. App. 595, 598-599 (1995). The Circuit Court “may not substitute its judgment for that of the Parole Board.” Hopkins v. Michigan Parole Board, supra, 633.

When the prisoner is interviewed by a Parole Board member, a Case Summary Report is prepared.  While the Board member conducts the parole interview, he/she is generally using a laptop and inputting notations into a finite electronic space.  A verbatim transcript is not made of the interview.  These shorthand, limited notes can cause conster-nation by the prosecutor and the reviewing court.  A Board member’s short notation that the “prisoner accepts responsibility” and “prisoner expresses remorse” are often viewed by the prosecutor and judge as insufficient to establish these claims.

Under the Michigan Prisoner Re-Entry Initiative (MPRI), a MDOC staff member prepares both a Transition Accountability Plan (TAP) report and a Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) report.  The MDOC and the Parole Board are required to prepare and consider the TAP report which formulates suggestions to assist the prisoner with reentry into society. The COMPAS software is used by the Michigan Department of Corrections in the “Getting Ready” and “Going Home” and “Staying Home” phases.  It is important to note that COMPAS, created by the Northpointe Institute for Public Management, is software that utilizes the evidence-based practice to predict future dangerousness and identify programming necessary to assist in the successful completion of parole. COMPAS is not the same as parole guidelines. It is simply one factor to assist in the design of a successful pre-release and parole program for the identified parolee.

In June 2010, the Court of Appeals issued a decision in Macomb County Prosecutor v. Andrew Paul Osantowski, unpublished, CA #291628, 6/15/2010, which prosecutors repeatedly used in their parole appeals.  The Circuit Court had reversed the Parole Board’s decision claiming that the Board still had to have reasonable assurances that the defendant would not be a menace if paroled.  The Court of Appeals affirmed the Circuit Court’s ruling, finding that in some cases, the MDOC’s diagnostic tools were not enough and that the Department would need more to grant a parole. The Court of Appeals recognized that Mr. Osantowski had some arguments favoring a parole noting:

"In this case, there were many facts and circumstances favoring defendant. Assessments, including the COMPAS assessment, as well as the parole guidelines score, all indicated that parole was warranted. Further, there were indicators that defendant had made significant progress toward rehabilitation while in prison.  He had no misconduct citations, had successfully participated in numerous programs as well as therapy, and had an excellent work record. Further, the board and defendant's therapist determined that he had accepted responsibility for his crimes."

 The Court of Appeals panel in Osantowski, however, found that as a whole, the Board had not carried its duty.  The Court of Appeals stated:

"Nonetheless, we find that the parole board relied too heavily on defendant's conduct while incarcerated. It failed to consider the nature of defendant's crimes and recent assessments of defendant's mental health. The individual factors on the COMPAS assessment are particularly troubling, especially given the initial potential for a horrific crime. Having threatened to murder numerous people, it was of concern that the initial overall COMPAS assessment, even though changed shortly thereafter, indicated that defendant had a medium risk of recidivism. Given the substantial danger to public safety, a medium risk of recidivism would not be acceptable. Moreover, the therapy termination report also indicated that, although there were positive indicators to the contrary, there were concerns with reoffending.
The parole board did conclude in the subsequent COMPAS report that the risk of recidivism was low. But given the extreme nature of defendant's crimes, the COMPAS score of eight for current violence, ten for criminal thinking observation, nine for depression and mental health, and eight for cognitive/behavioral/psychological were cause for considerable concern. So was the indica-tion that a scale score on the cognitive/ behavioral/psychological factor and the depression and mental health factor might warrant a more in-depth mental health assessment. Also, given the implication that defendant's crimes emanated from instability and perhaps depression, a mental health/depression score of nine is disturbing, as is the score of eight for current violence. These isolated scores, even though they did not trigger an overall result that was alarming, were indeed alarming in and of themselves. They refute that there could be any 'reasonable assurance' that defendant would not 'become a menace to society or to the public safety.' M.C.L. §791.233(1)(a)."

Bsed on these facts, the Court of Appeals in Osantowski found that the Parole Board abused its discretion in refusing to depart from the guidelines.

 However, on November 24, 2010, the Michigan Supreme Court reversed the Court of Appeals, stating:

“On order of the Court, the application for leave to appeal the June 15, 2010 judgment of the Court of Appeals is considered and, pursuant to Mich. Ct. R. 7.302(H)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals, and we   REINSTATE the Parole Board decision. The Parole Board did not abuse its discretion in granting parole to the defendant. The decision to grant parole was based on evaluation of objective criteria established by Michigan Department of Corrections policy directives that were required by statute, and was within the range of principled outcomes.” Macomb County Prosecutor v. Osantowski, 488 Mich. 952 (2010)

Prior to November 2011, published case law in this area was scant.  On November 1, 2011, the Court of Appeals issued two lengthy opinions which sought to give guidance to the Circuit Courts.  See In re Parole of Michelle Elias, ___ Mich. App. ___ (2011) and People v. Raymond Haeger, ___ Mich. App. ___ (2011). Both opinions were written by Judge Gleicher and joined by Judge Markey and Judge Saad.

In Elias, the Court of Appeals set forth a comprehensive review of the mechanics of the parole process in Michigan and detailed the proper bounds of appellate review of challenges to a parole decision.  The Court made it clear that the standard of review is the Babcock4 abuse of discretion standard, that the Circuit Court may not invade the Parole Board’s authority, and that the Circuit Court may not substitute its judicial judgment for that of the Board.  At the time Ms. Elias was granted parole in 2010, she had been denied parole on four prior occasions.  She had a parole guidelines score of +15, which placed her in the high probability of parole category. She had received 37 major misconduct tickets over the course of her 25 years of imprisonment.  The Court of Appeals found

The Board did not abuse its discretion, nor did it violate the Constitution, any statute, rule or regulation in granting parole to Elias. Elias had a parole guidelines score of 15 points, placing her in the high probability of parole category. Accordingly, the Board was required to grant parole absent substantial and compelling reasons to depart from that de-cision. After personally interviewing Elias and fully reviewing Elias's file, including a multi-tude of reports prepared specifically for the Board's consideration, the Board found no sub-stantial and compelling reason to depart from the parole guidelines. This decision fell within the principled range of outcomes based on the record evidence.  Elias, supra, slip op, p 19.

The Court of Appeals in Elias gave the following guidance with regard to substantial and compelling reasons for departure in the parole context:

Under the parole guidelines, however, the Board “is not held to a requirement of absolute objectivity.” Killebrew v. Dep't of Corrections, 237 Mich. App. 650, 655; 604 NW2d 696 (1999). Rather, the Board must consider “all of the facts and circumstances, including the prisoner's mental and social attitude.” M.C.L. §791.233(1)(a). “An evaluation of a prisoner's mental and social attitude involves a subjective determination for which the parole guidelines cannot account.” Killebrew, 237 Mich. App. at 655. As the Legislature has directed the Board to consider certain subjective factors in making a parole decision, reliance on the objective analytical process underlying Babcock's definition of “substantial and compelling” reasons for a sentencing departure would be misplaced. The Board may identify reasons “that keenly or irresistibly grab [ ][its] attention” and are “of considerable worth in deciding” whether it should deny parole to a prisoner who was otherwise assessed as having a high chance of parole. See Babcock, 469 Mich. at 258. And, if those substantial and compelling reasons also qualify as “objective and verifiable,” a reviewing court would be more apt to affirm the Board's decision. See Macomb Co. Prosecutor v. Osantowski, 488 Mich. 952; 790 NW2d 687 (2010) (reinstating the Board's grant of parole because it “was based on evaluation of objective criteria established by [MDOC] policy directives that were required by statute, and was within the range of principled outcomes,” and reversing an un-published opinion of this Court to the contrary). See also Johnson, 219 Mich. App. at 600–601 (holding that parole was improperly granted where the objective factors weighed almost exclusively in favor of denial, and the Board appeared to rely solely on the subjective opinion of one Board member who had inter-viewed the prisoner).  Elias, supra, slip op, pp 21-22.

Although the prosecutors and some Circuit Courts rely heavily on the circumstances of the sentencing offense, the Court of Appeals in Elias addressed the weight of the different factors:

The prosecutor and the circuit court mistakenly assume that unchangeable factors related to past events, such as the sentencing offense, must be given greater consideration when formulating a COMPAS risk assessment and in scoring the parole guidelines. Nothing in the statutes, regulations, or COMPAS guidelines supports that assumption. Rather, the Board must also look to the prisoner's rehabilitation and evolution throughout her incarceration. Giving the various static and dynamic factors similar weight allows the Board to effectuate both the punitive and rehabilitative features of the corrections system.  Elias, supra, slip op, p 22.

 Finally, the Court in Elias gave the following guidance with regard to previous parole denials:

We also disagree with the circuit court's conclusion that the current Parole Board panel abused its discretion because it reached a different result based on the same evidence placed before previous panels. As already noted, the Board could, within its discretion, determine that Elias had improved her overall outlook since the 2006 preparation of the AOT report and the 2008 preparation of the COMPAS and TAP reports. Moreover, we do not find the presence of conflicting information in the reports to be dispositive. In other con-texts, this Court has repeatedly determined that there is no abuse of discretion when a court or fact finder is faced with conflicting in-formation and makes a reasonable and principled decision regarding which side to believe. See, e.g., People v. Wybrecht, 222 Mich. App. 160, 173; 564 NW2d 903 (1997) (“[A] sentence is not invalid because probation agents and a defendant's psychologists use un-disputed facts to draw conflicting conclusions about the defendant's character.”). The current Parole Board panel read the conflicting state-ments regarding whether Elias had accepted responsibility for killing Barczynski. A mem-ber of the current panel also interviewed Elias and was able to update information repre-sented in those reports. The Board's determi-nation that Elias had accepted responsibility for her acts is supported by evi-dence in the record, and the Board did not abuse its discretion in granting parole based on that evidence.  Elias, supra, slip op, pp 23-24.

The same Court of Appeals panel also issued a published opinion in People v. Haeger, supra.  This opinion addresses the Parole Board’s failure to comply with the regulatory provisions of 2011 AC, R 791.7715(5), which mandates the following:

(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.

The Court of Appeals in Haeger faulted the Board for not having a complete record and for violating its regulatory duty to defer its decision until Mr. Haeger submitted to a psychological or psychiatric evaluation.

 Finally, there are some panels in the Court of Appeals that deny leave to appeal when the prisoner and the Board appeal the Circuit Court’s decision.  Prisoners should then appeal to the Michigan Supreme Court.  In Elias, the Court of Appeals initially denied leave to appeal when Ms. Elias and the Parole Board appealed the Circuit Court’s decision.  However, when Ms. Elias appealed to the Michigan Supreme Court, her case was remanded back to the Court of Appeals for consideration as on leave granted.  In re Parole of Michelle Elias, 488 Mich. 1034 (2011).  In Paquette, the Court of Appeals also initially denied leave to appeal.  However, after the Board and Mr. Paquette appealed to the Michigan Supreme Court, his case was remanded to the Court of Appeals as on leave granted and for SADO to be appointed as counsel. In re Parole of Philip Joseph Paquette, 489 Mich. 982 (2011).  In an unpublished opinion released on November 29, 2011, the Court of Appeals reversed the Circuit Court and affirmed the Parole Board’s grant of parole. In re Parole of Philip Joseph Paquette, unpublished, CA #301140, 11/29/2011.

Susan M. Meinberg
Assistant Defender
State Appellate Defender Office

Endnotes

1.  Executive Order 2011-3, effective April 15, 2011.

2.  This civil appeal is not given to the sentencing judge, but is blind drawn.

3.  Previous opinions described the abuse of discretion standard in parole cases as “where an unprejudiced person, considering the facts on which the decisionmaker acted, would say there is no justification or excuse for the ruling.” In re Parole of Glover (After Remand), 241 Mich. App. 127, 129 (2000).

4.  People v. Babcock, 469 Mich. 247, 269 (2003).

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