Appendix 6
Reprieves, commutations or pardons: MCLA § 791.244; MCL § 816
Michigan Compiled Laws Annotated
Chapter 791. Department of Corrections
Department of Corrections
Chapter III. Bureau of Pardons and Paroles; Parole Board
Copr. West Group 1997. All rights reserved.
Current through P.A. 1997, No. 25
791.244. Reprieves, commutations, or pardons; interviews, application or initiation; parole board duties; review, investigation, public hearing, notice to victim, recommendations; public record
Sec. 44. (1) Subject to the constitutional authority of the governor to grant reprieves, commutations, and pardons, 1 member of the parole board shall interview a prisoner serving a sentence for murder in the first degree or a sentence of imprisonment for life without parole at the conclusion of 10 calendar years and there after as determined appropriate by the parole board, but not later than every 5 years until such time as the prisoner is granted a reprieve, commutation, or pardon by the governor, or is deceased. The interview schedule prescribed in this subsection applies to all prisoners to whom this section is applicable, whether sentenced before, on, or after the effective date of the 1992 amendatory act that amended this subsection.
(2) Upon is own initiation or, or upon receipt of any application for, a reprieve, commutation, or pardon, the parole board shall do all of the following, as applicable:
(a) Not more than 60 days after receipt of an application, conduct a review to determine whether the application for a reprieve, commutation, or pardon has merit.
(b) Deliver either the written documentation of the initiation of the original application with the parole board's determination regarding merit, to the governor and retain a copy of each in its file, pending an investigation and hearing.
(c) Within 10 days after initiation, or after determining that an application has merit, forward to the sentencing judge and to the prosecuting attorney of the county having original jurisdiction of the case, or their successors in office, a written notice of the filing of the application or initiation, together with copies of the application or initiation, any supporting affidavits, and a brief summary of the case. Within 30 days after receipt of notice of the filing of any application or initiation, the sentencing judge and the prosecuting attorney, or their successors in office, may file information at their disposal, together with any objections, in writing, which they may desire to interpose. If the sentencing judge and the prosecuting attorney, or their successors in office, do not respond within 30 days, the parole board shall proceed on the application or initiation.
(d) If an application or initiation for commutation is based on physical or mental incapacity, direct the bureau of health care services to evaluate the condition of the prisoner and report on that condition. If the bureau of health care services determines that the prisoner is physically or mentally incapacitated the bureau shall appoint 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. These reports are protected by the doctor-patient privilege of confidentiality, except that these reports shall be provided to the governor for his or her review.
(e) Within 270 days after initiation by the parole board or receipt of an application that the parole board has determined to have merit pursuant to subdivision (a), make a full investigation and determination on whether or not to proceed to a public hearing.
(f) Conduct a public hearing not later than 90 days after making a decision to proceed with consideration of a recommendation for the granting of a reprieve, commutation, or pardon. The public hearing shall be held before a formal recommendation is transmitted to the governor. One member of the parole board who will be involved in the formal recommendation may conduct the hearing, and the public shall be represented by the attorney general or a member of the attorney general's staff.
(g) At least 30 days before conducting the public hearing, provide written notice of the public hearing by mail to the attorney general, the sentencing trial judge, and the prosecuting attorney, or their successors in office, and each victim who requests notice pursuant to the crime victim's rights act, Act No. 87 of the Public Acts of 1985, being sections 780.751 to 780.834 of the Michigan Compiled Laws.
(h) Conduct the public hearing pursuant to the rules promulgated by the department. Except as otherwise provided in this subdivision, any person having information in connection with the pardon, commutation, or reprieve shall be sworn as a witness. A person who is a victim shall be given an opportunity to address and be questioned by the parole board at the hearing or to submit written testimony for the hearing. In hearing testimony, the parole board shall give liberal construction to any technical rules of evidence.
(i) Transmit its formal recommendation to the governor.
(j) Make all data in its files available to the governor if the parole board recommends the granting of a reprieve, commutation, or pardon.
(3) Except for medical records protected by the doctor-patient privilege of confidentiality, the files of the parole board in cases under this section shall be matters of public record.
CREDIT(S)
1997 Electronic Update
Amended by P.A.1982, No. 314, § 1, Imd. Eff. Oct. 15; P.A.1992, No. 181, § 1, Imd. Eff. Sept. 22, 1992.
<General Materials (GM) - References, Annotations, or Tables>
HISTORICAL AND STATUTORY NOTES
1997 Electronic Update
1982 Amendment. Rewrote the section.
1992 Legislation
The 1992 amendment rewrote this section, which prior thereto read:
"Subject to the constitutional authority of the governor to grant reprieves, commutations, and pardons, 1 member of the parole board shall interview a prisoner serving a sentence for murder in the first degree at the conclusion of 4 calendar years and biennially thereafter until such times as the prisoner is granted a reprieve, commutation, or pardon by the governor, or is deceased. Upon receipt of any application for reprieve, commutation, or pardon, the parole board shall:
"(a) Deliver the original application to the governor and retain a copy in its file, pending investigation and hearing.
"(b) Within 10 days after receipt of any application, forward to the sentencing judge and to the prosecuting attorney of the county having original jurisdiction of the case, or their successors in office, a written notice of the filing of the application, together with copies of the application, the supporting affidavits, and a brief summary of the case. Within 30 days after receipt of notice of the filing of any application, the sentencing judge and the prosecuting attorney, or their successors in office, may file information at their disposal, together with any objections, in writing, which they may desire to interpose. If the sentencing judge and the prosecuting attorney, or their successors in office, do not respond within 30 days, the parole board shall proceed on the application.
"(c) In all cases where a commutation application is based on physical or mental incapacity, direct the office of health care to evaluate the condition of the prisoner and report on that condition. If the office of health care determines that the applicant is physically or mentally incapacitated, the office shall appoint 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. These reports are protected by the doctor-patient privilege of confidentiality, except that the reports shall be provided to the governor for review.
"(d) In all cases where the parole board initiated or the applicant applies for a reprieve, commutation, or pardon, the parole board shall conduct a public hearing not later than 90 days after making a decision to proceed with consideration of a recommendation for executive clemency. The public hearing must be held before a formal recommendation of executive clemency is made. One member of the parole board may conduct the hearing, and the public shall be represented by the attorney general or a member of the attorney general's staff.
"(e) At least 5 days before a public hearing, written notice of the public hearing shall be transmitted by mail to the attorney general, the sentencing trial judge, and the prosecuting attorney, or their successors in office.
"(f) A public hearing shall be conducted pursuant to the rules promulgated by the department. Any person having information in connection with any application for pardon, commutation, or reprieve, shall be sworn as a witness. In hearing testimony, the parole board shall give liberal construction to any technical rules of evidence.
"(g) If an application has been made for executive clemency, the parole board shall make a full investigation and determination on whether or not to proceed to a public hearing within 270 days of receipt of the application. If the parole board recommends executive clemency, it shall make all data in its files available to the governor. Except for medical records protected by the doctor-patient privilege of confidentiality, the files of the parole board in these cases shall be matters of public record."
1982 Main Volume
Source:
P.A.1953, No. 232, § 44, Eff. Oc. 2.
C.L.1948, § 791.244.
C.L.1970, § 791.244.
Prior Laws:
P.A.1937, No. 255, c.3, § 14.
P.A.1947, 2nd Ex.Sess., No. 4, § 42.
C.L.1948, § 791.42
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CONSTITUTIONAL PROVISIONS
1982 Main Volume
Article 5, § 14, provides:
"The governor shall have power to grant reprieves, commutations and pardons after convictions for all offenses, except cases of impeachment, upon such conditions and limitations as he may direct, subject to procedures and regulations prescribed by law. He shall inform the legislature annually of each reprieve, commutation and pardon granted, stating reasons therefor."
CROSS REFERENCES
Victims of crime, notice of public hearing regarding reprieve, commutation or pardon, see § 780.769.
MICHIGAN ADMINISTRATIVE CODE
1997 Electronic Update
For Rules and Regulations, see Rules 791.1101 et seq., 791.7701 et seq., Michigan Administrative Code.
LAW REVIEW COMMENTARIES
Duties of prosecutor. John T. Hammond, 51 Mich.St.B.J. 40 (1972).
Executive pardons in the courts. 21 Mich.L.Rev. 683 (1923).
LIBRARY REFERENCES
1982 Main Volume
Pardon and Parole 7, 12, 13.
C.J.S. Pardon and Parole § 4,13, 30 to 38, 43, 44, 47 to 53, 59.
M.L.P. Criminal Law § 718.
UNITED STATES SUPREME COURT
Preparoled conditional supervision, due process protections, see Young v. Harper, 1997, 117 S.Ct.1148.
NOTES OF DECISION
In general 1
Hearing 2
Validity 1/2
1/2. Validity
The 1992 amendments to Michigan's parole laws governing frequency of parole review hearings violated ex post facto clause as applied retroactively to inmates who committed their crimes and were convicted between 1982 and 1992 and received sentences of mandatory life, parolable life, or long indeterminate sentences; under statute in effect at times inmates were convicted, inmates were to be interviewed after four years, and then every two years thereafter, while amendments changed schedule to ten years and five years thereafter, and there was sufficient nexus between parole hearings and parole eligibility under Michigan parole system that amendments could be considered to create sufficient risk of increased punishment, even though parole board retained discretion to schedule hearing more frequently and even though hearing was not required in order for inmate to be eligible for parole. Shabazz v. Gabry, E.D.Mich.1995, 900 F.Supp. 118, affirmed in part, reversed in part.
The 1992 amendments to Michigan's parole laws governing frequency of parole review hearings did not violate ex post facto clause as applied to inmates who committed their crimes and were convicted between 1977 and 1982 and received mandatory life sentences or inmates who committed their crimes and were convicted prior to 1977 and received mandatory life, parolable life, or long indeterminate sentences; at time inmates were convicted, frequency of hearings was determined by internal policies and procedures of corrections department or parole board rather than by statute or administrative regulation, and such policies and procedures were not "laws" within meaning of ex post facto clause. Shabazz v. Gabry, E.D.Mich.1995, 900 F. Supp. 118, affirmed in part, reversed in part.
1. In general
Denial of judicial review of parole board's decision denying inmate consideration for parole did not violate inmate's due process rights under federal or state law. Shields v. Department of Corrections (1983) 340 N.W.2d 95, 128 Mich.App. 380.
This section governing procedure for processing application for reprieve, commutation or pardon does not require hearing before the Parole Board upon every application for commutation of sentence. Berry v. Department of Corrections (1982) 324 N.W.2d 65, 117 Mich.App. 494.
Since inmate's complaint challenged the defendant agencies' interpretation of this section governing procedure for processing application for reprieve, commutation or pardon, and since rule (1979 AC, R 791.7760) incorporates this section by reference, complaint sought determination of applicability of this rule, even though it was not specifically cited in complaint, and thus trial court had jurisdiction to issue declaratory judgment under § 24.264 of the Administrative Procedure Act (§ 24.201 et seq.). Berry v. Department of Corrections (1982) 324 N.W.2d 65, 117 Mich.App. 494.
2. Hearing
Parole board's determination that defendant would be given meaningful parole consideration after having served 20 years of his sentence, and board's decision to continue investigation into granting defendant parole, did not entitle defendant to public hearing outlined in statute, as requirement of public hearing did not establish right for defendant but, rather, established restriction on authority of parole board; statute did not establish public hearing to ensure that a prisoner was fully considered for parole, but established public hearing as means of preventing parole board from granting parole without full consideration of facts involved. Middleton v. Parole Bd. (1995) 528 N.W.2d 791, 208 Mich.App. 563.
Parole board is under no obligation to hold public hearing unless it initially determines that it desires to parole prisoner, in which case public hearing must be held before parole may be granted; prisoner has no right to public hearing absent parole board's decision to hold one. Middleton v. Parole Bd. (1995) 528 N.W.2d 791, 208 Mich.App. 563.
Parole board did not create contractual obligation to conduct public hearing by informing defendant that it would give meaningful parole consideration after defendant served 20 years of his sentence, or by investigating in detail prospects of parole. Middleton v. Parole Bd. (1995) 528 N.W.2d 791, 208 Mich.App. 563.
M.C.L.A 791.244
MI ST 791.244
CHAPTER 25
PARDON, PAROLE, AND COMMUTATION OF SENTENCE
Research References
Text References:
Callaghan's Mich Dig, Pardons and Paroles
Legal Periodicals:
Girard, Prosecution Appeals of Decisions to Parole - A Different Perspective, 73 Mich BJ 2:188 (1994)
Dagher & Margosian, Life Means Life: Parole Rarely Granted on Nonmandatory Life Terms, 73 Mich BJ 1184 (1994)
Annotation References:
Pardon as restoring public office or license or eligibility therefor, 58 ALR3d 1191.
Prejudicial effect of statement of prosecutor as to possibility of pardon or paroled, 16 ALR3d 1137.
Prejudicial effect of statement or instruction of court as to possibility of parole or pardon, 12 ALR3d 832.
Validity of statutes prohibiting or restricting parole, probation, or suspension of sentence in cases of violent crimes, 100 ALR3d 431.
Acquittal in criminal proceeding as precluding revocation of parole on same charge, 76 ALR3d 578.
Prejudicial effect of statement of prosecutor as to possibility of pardon or parole, 16 ALR3d 1137.
Prejudicial effect of statement or instruction of court as to possibility of parole or pardon, 12 ALR3d 832.
Form References:
18A Am Jur Pl & Pr Forms (Rev), Pardon and Parole
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§ 815. Constitutional provisions
§ 816. Pardons, commutations, and reprieves - Statutory provisions.
§ 816.50 --Infringement on executive power of clemency.§ 817. Requisites and effect§ 818. Parole --Statutory provisions
§ 818.50 --Notice to victim.
§ 819. --Nature and purpose
§ 820. --Status of paroled prisoner.
§ 820.10. --Revocation of parole.
§ 821. Reserved
§ 815. Constitutional provisions
Under the constitution the governor is given the power to grant reprieves, commutations and pardons after conviction for all offenses, except cases of impeachment, on such conditions and limitations as the governor may direct, subject to procedures and regulation prescribed by law. 1 The governor is directed by the constitution to inform the legislature annually of each reprieve, commutation and pardon granted, stating the reasons each was granted. 2
The constitution also sets out that the legislature may provide for indeterminate sentences as a punishment for crimes, and for the detention and release of persons imprisoned or detained on such sentences.3
1. Const 1963, art V, § 14.
2. Const 1963, art V, § 14.
3. Const 1963, art IV, § 45.
§ 816. Pardons, commutations, and reprieves--Statutory provisions
The pardoning power is vested exclusively in the governor under the constitution. 1 The legislature cannot grant a pardon or commute a sentence. 2 Under the constitutional power conferred on the governor to commute sentences the matter of the commutation of a sentence rests entirely on executive clemency. 3 The power conferred on the governor under the constitution to grant pardons is almost unrestricted, and executive clemency is a matter of discretion. 4 It is not a privilege by an official duty lodged in the governor not for the benefit of the convict only but for the welfare of the people who may insist on performance of the duty. 5 The coordinate branches of the government have nothing to do with the pardoning power, except that the legislature may by law provide how application ar to be made and is entitled to a report of actions taken. 6
The Michigan corrections commission consists of six member to be appointed by the governor. 7 Within the department of corrections there is a bureau of field services, under the direction and supervision of a deputy director 8, and a parole board consisting of ten members not subject to the state civil service. 9 Subject to the constitutional powers vested in the executive and judicial departments of the state, the department of corrections has exclusive jurisdiction over pardons and reprieves. 10
All applications for pardons and reprieves must be filed with the parole board on forms provided by the board, and must contain information the board may by rule require. 11 Upon its own initiation or on receipt of any application for a reprieve, commutation, or pardon, the parole board is required to deliver either the written documentation of the initiation or the original application with the board's determination regarding merit to the governor and retain a copy of each in its file pending investigation and hearing. 12 Within 10 days after initiation, or after determining that an application has merit, the board must forward to the sentencing judge and the prosecuting attorney of the county having original jurisdiction of the case a written notice of the filing of the application or initiation, together with copies and any supporting affidavits and a brief summary of the case. Within 30 days after receipt of the notice of the filing, the sentencing judge and prosecuting attorney may file information at their disposal, together with any objections, which they may interpose; if they do not so respond within the 30-day period the parole board is required to proceed on the application or initiation. 13
One member of the parole board is required to conduct a public hearing on all applications before recommending executive clemency. 14 A hearing before the board is not required for every application, but merely when the board is inclined toward recommending clemency. 15
The public must be represented by the attorney general or a staff member. 16 At least 30 days before and public hearing notice must be sent to the attorney general, the sentencing judge, the prosecuting attorney and each victim who requested notice under the Crime Victim's Rights Act. 17 The hearing must be conducted in accordance with rules adopted by the commission at which any person having knowledge to divulge in connection with the application may be sworn as a witness. 18 A person who is a victim is entitled to address and be questioned by the parole board or to give written testimony for the hearing. 19
At the conclusion of the hearing the board must transmit its formal recommendation to the governor. 20 Except for medical records 21 protected by the doctor-patient privilege of confidentiality, the files of the board in all cases are matters of public record. 22
1. Oakland County Prosecutor v. 52nd Dist. Judge, 172 Mich App 557, 432 NW2d 322; People v. Garcia, 118 Mich App 676, 325 NW2d 540; People v. Allen, 79 Mich App 100, 261 NW2d 225.
2. Meyers v. Jackson, 245 Mich 692, 224 NW 356.
3. Meyers v. Jackson, 245 Mich 692, 224 NW 356.
4. Rich v. Chamberlain, 104 Mich 436, 62 NW 584.
5. Rich v. Chamberlain, 104 Mich 436, 62 NW 584.
6. Rich v. Chamberlain, 104 Mich 436, 62 NW 584.
7. MSA § 28.2271-28.2343 MCL § 791.201-791.283.
8. MSA § 28.2301; MCL§ 791.231.
9. MSA § 28.2301; MCL § 791.231a
10. MSA § 28.2274; MCL § 791.204
11. MSA § 28.2313; MCL § 791.243.
12. MSA § 28.2314, subd (2); MCL § 791.244, subd (2).