Clemency in Michigan
The power to grant commutation rests solely with the Governor. Const. 1963 art. 5 & 14. In Michigan, the Parole Board receives clemency applications, conducts public hearings, and makes formal recommendations to the Governor. The Governor has the power to grant a commutation for any sentence except treason. Commutation is the only release from prison for a person with a non-parolable life sentence. If commutation is granted, a life sentence is first commuted to a term of years. Then the prisoner is paroled from that sentence. 57
Grants of commutation have been rare indeed in Michigan in the last decade. While in the mid-1960s, Governor Romney commuted the sentences of 107 inmates. Twenty years later, Governor Blanchard granted only six commutations -- all but one just before he left office. Governor Engler has granted just five commutations since 1990.
One would like to think that a battered woman's petition for clemency would be approved or denied according to the merits of the woman's case and her prison record. Unfortunately, in Michigan, as elsewhere, it is the composition of the Parole Board and the occurrence of high profile crimes by recent parolees which ultimately determines whether a petitioner is released.
The current Michigan Parole Board has shown itself to be extremely unsympathetic not only to women seeking clemency, but to many prisoners seeking parole. In the late 1980s and early 1990s, about two-thirds of Michigan prisoners who applied for parole were released. 58 In 1995, the Parole Board approved only about half of the appeals it heard. 59 The Parole Board's reluctance to grant parole is causing the Michigan prison population to soar, even when the number of incoming inmates is declining.
Between 1985 and 1995, Michigan's prison population has skyrocketed from 17,744 to 41,112. 60 A report to the Michigan Sentencing Commission states that if the Board continues these parole practices, the prison population will reach 65,000 by the year 2007. That is an increase of 20,000 in ten years. 61
Tight Parole Board control has caused a drastic increase in prison population for two reasons:
1. Michigan's indeterminate sentencing policy allows the Parole Board great power over a prisoner's out-date. 62 Under an indeterminate sentencing system, a sentencing judge gives prisoners a minimum term proportional to the crime committed. The Parole Board then sets the exact amount of time to be served according to post-sentencing factors. The current Parole Board does not assume that the prisoner should be released at the end of the minimum sentence.
2. The current Parole Board revokes parole for minor and technical violations of parole conditions. Critics contend that while the Parole Board's function should be to assess whether a person poses a danger to society, it has, in fact, become a re-sentencing court. 63 This re-sentencing function is especially dangerous since prisoners do not have a right to counsel or to dispute inaccurate information at their hearing.
The Parole Board's reluctance to grant clemency or parole can be traced to an incident in 1992 in which a parolee committed a series of rape-murders. 64 The ensuing public outrage led to formation of a "law and order" Parole Board.
From 1976 to 1992, Parole Board members all had corrections experience and civil service protection. 65 Following the 1992 incident, the Board was stripped of its civil service protection and completely reconstituted. Today, the Director of the Department of Corrections appoints Parole Board members. Stature requires that at least four members have no prior Department of Corrections employment. Thus, the Parole Board has gone "from a professional Board with corrections experience to a 'citizens' board not required to have any experience with prisons or prisoners." 66 (See appendix 7 for an up-to-date list of Parole Board members.) Because the Parole Board may be held politically accountable for the actions of parolees, it may deny parole or clemency to any controversial candidate.
Currently, the Parole Board does not rely on written guidelines in evaluating a prisoner for commutation purposes. 68 The MDOC once used commutation grid scores to determine the number of years a prisoner should serve before it would make a positive recommendation. 69 In 1987, however, the MDOC rescinded this policy. Since then, the Board has considered petitions on a case-by-case basis. To determine priority areas of Parole Board concern, you might look at parole guidelines. 70 When deciding whether to grant parole the Board considers factors such as: the offense for which the prisoner is incarcerated; the prisoner's institutional program; the prisoner's institutional conduct; the prisoner's prior criminal record; the prisoner's statistical risk screening; and the prisoner's age. 71
M.C.L.A. § 791.23 (1)(a) mandates that the Parole Board shall consist of ten members appointed by the Director of MDOC. Members may not be within the state civil service. Members are appointed to terms of four, three, or two years. A member may be re-appointed.
Procedure for application, interviews, review, investigation, and public hearing are set forth in M.C.L.A.. § 791.244. (See Appendix 6.) A brief summary follows:
1. One member of the Parole Board should automatically interview a prisoner serving a non-parolable life sentence after ten years. 72 Subsequent interviews will be conducted as deemed appropriate by the Board, but not later than every five years until which time as the prisoner is granted a reprieve, commutation, or pardon by the Governor, or is deceased. 73 PLEASE NOTE: Senate bill 873, proposed on February 10, 1998 would eliminate the "every five year" requirement and leave all the interviews after the initial ten year interview up to the discretion of the Parole Board.
Alternatively, an inmate may initiate the clemency process by submitting a written petition to the Parole Board containing the information required by R 791.7760. (See Appendix 5.) Applications for pardons, reprieves, and commutations must be filed with the Parole Board on forms provided therefor by the Parole Board. 74 (See Appendix 1 for application form).
2. Not more than 60 days after receipt of an application the Parole Board must conduct a review to determine whether the petition has merit. 75 The Board will deliver to the Governor either written documentation of initiation or the prisoner's original application with the Parole Boards' decision, pending an investigation and hearing. Favorable action requires a majority vote by the entire Board.
3. If there is a favorable vote, the Board member who initiated interest in the prisoner requests a PER, a psychological report, and a medical report. 76 If that member decides to proceed, within ten days the Board will send a lifer survey report to the sentencing court and prosecuting attorney for comment. 77 The sentencing judge and the prosecuting attorney, or their successors in office, have 30 days to file information at their disposal or objections, in writing.
4. Within 270 days after receipt of an application that the Parole Board has determined to have merit, the Board will make a full investigation and determination on whether to proceed to a public hearing.
5. Not later than 90 days after making a decision to proceed, a public hearing will be held. At least 30 days before the public hearing, the Parole Board will provide written notice of the hearing by mail to the Attorney General, the sentencing trial judge, the prosecuting attorney or his successor, and each victim who requests notice pursuant to the Crime Victim's Rights Act. 78
6. The hearing will be conducted by one member of the Parole Board. The public is represented by the Attorney General or a member of the Attorney General's staff.
7. The applicant has a right to be present, to testify, and to be represented by counsel. The amended statute provides a victim the opportunity to address and be questioned by the Parole Board at the hearing or to submit written testimony for the hearing. 79 In hearing testimony, the Parole Board shall give liberal construction to any technical rules of evidence. 80
8. In the event that the Board approves a recommendation by a majority vote, the Board will send its formal recommendation, along with a transcript of the hearing and a summary of the case to the Governor. 81 If granted, the Governor will sign a commutation of sentence.
57. Sandra Girard. 175 Michigan Prison Sentences: A Guide for Defense Attorneys. Michigan Appellate Assigned Counsel System: Lansing (1996).
58. Edward Walsh. "Growing Graying Inmate Population Taxing Prisons." The Washington Post. July 5, 1996 p. A01.
60. Stuart Friedman. "Michigan Parole Board: A Smoldering Volcano." 77 Michigan Bar Journal. No. 22.
65. See: Girard at 152.
66. See: Friedman at 184.
67. See: Appendix 6 for relevant statutory law.
68. See: Girard at 175.
69. Id. at 175 n. 90.
70. See M.C.L.A. § 791.233.
72. See: M.C.L.A. § 791.244
73. The previous rule provided for interview at the conclusion of five years, and every two years thereafter.
74. See: M.C.L.A. § 791.243.
75. See: M.C.L.A. § 791.244(a).
76. See: 791.244(2)(d) for special provisions where commutation is based on physical or mental incapacity.
77. See: M.C.L.A. § 791.244(c).
78. The provision requiring notice to victims' families was added as part of the 1992 amendment.
79. See: M.C.L.A. § 791.244(h).
80. See: M.C.L.A. § 791.244(2)(h).
81. See: M.C.L.A. § 791.244(i).