Michigan House Bills 4518 And 4594-4596 Of 2009

March 5, 2009, Introduced by Reps. Johnson and Meadows and referred to the Committee on Judiciary. A bill to amend 1931 PA 328, entitled "The Michigan penal code," (MCL 750.1 to 750.568) by adding section 506b. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1

SEC. 506B. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN

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THIS ACT, AN INDIVIDUAL WHO WAS LESS THAN 18 YEARS OF AGE AT THE

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TIME HE OR SHE COMMITTED A CRIME SHALL NOT BE SENTENCED TO

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IMPRISONMENT FOR LIFE WITHOUT PAROLE ELIGIBILITY FOR THAT CRIME.

HOUSE BILL No. 4518

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Enacting section 1. This amendatory act does not take effect

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unless all of the following bills of the 95th Legislature are

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enacted into law:

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(a) House Bill No. 4594.

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(b) House Bill No. 4595.

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HOUSE BILL No. 4518

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(c) House Bill No. 4596.

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March 17, 2009, Introduced by Reps. Warren, Smith, Donigan, Scripps, Robert Jones, Miller, Leland, Tlaib, Johnson, Jackson, Young, Durhal, Bettie Scott, Sheltrown, Cushingberry, Haugh, Roberts and Meadows and referred to the Committee on Judiciary. A bill to amend 1927 PA 175, entitled "The code of criminal procedure," by amending sections 1 and 1b of chapter IX (MCL 769.1 and 769.1b), section 1 as amended by 1999 PA 87 and section 1b as amended by 1998 PA 520. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: CHAPTER IX

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HOUSE BILL No. 4594

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Sec. 1. (1) A judge of a court having jurisdiction may

3

pronounce judgment against and pass sentence upon a person

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convicted of an offense in that court. The sentence shall not

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exceed the sentence prescribed by law. The EXCEPT AS PROVIDED IN

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SUBSECTION (15), THE court shall sentence a juvenile convicted of

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any of the following crimes in the same manner as an adult:

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HOUSE BILL No. 4594

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(a) Arson of a dwelling in violation of section 72 of the Michigan penal code, 1931 PA 328, MCL 750.72. (b) Assault with intent to commit murder in violation of section 83 of the Michigan penal code, 1931 PA 328, MCL 750.83. (c) Assault with intent to maim in violation of section 86 of the Michigan penal code, 1931 PA 328, MCL 750.86. (d) Attempted murder in violation of section 91 of the Michigan penal code, 1931 PA 328, MCL 750.91. (e) Conspiracy to commit murder in violation of section 157a of the Michigan penal code, 1931 PA 328, MCL 750.157a. (f) Solicitation to commit murder in violation of section 157b of the Michigan penal code, 1931 PA 328, MCL 750.157b. (g) First degree murder in violation of section 316 of the Michigan penal code, 1931 PA 328, MCL 750.316. (h) Second degree murder in violation of section 317 of the Michigan penal code, 1931 PA 328, MCL 750.317. (i) Kidnapping in violation of section 349 of the Michigan penal code, 1931 PA 328, MCL 750.349.

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(j) First degree criminal sexual conduct in violation of

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section 520b of the Michigan penal code, 1931 PA 328, MCL 750.520b.

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(k) Armed robbery in violation of section 529 of the Michigan penal code, 1931 PA 328, MCL 750.529. (l) Carjacking in violation of section 529a of the Michigan penal code, 1931 PA 328, MCL 750.529a. (2) A person convicted of a felony or of a misdemeanor

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punishable by imprisonment for more than 92 days shall not be

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sentenced until the court has examined the court file and has

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determined that the person's fingerprints have been taken.

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(3) Unless a juvenile is required to be sentenced in the same

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manner as an adult under subsection (1), a judge of a court having

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jurisdiction over a juvenile shall conduct a hearing at the

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juvenile's sentencing to determine if the best interests of the

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public would be served by placing the juvenile on probation and

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committing the juvenile to an institution or agency described in

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the youth rehabilitation services act, 1974 PA 150, MCL 803.301 to

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803.309, or by imposing any other sentence provided by law for an

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adult offender. Except as provided in subsection SUBSECTIONS (5)

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AND (15), the court shall sentence the juvenile in the same manner

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as an adult unless the court determines by a preponderance of the

13

evidence that the interests of the public would be best served by

14

placing the juvenile on probation and committing the juvenile to an

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institution or agency described in the youth rehabilitation

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services act, 1974 PA 150, MCL 803.301 to 803.309. The rules of

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evidence do not apply to a hearing under this subsection. In making

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the determination required under this subsection, the judge shall

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consider all of the following, giving greater weight to the

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seriousness of the alleged offense and the juvenile's prior record

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of delinquency:

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(a) The seriousness of the alleged offense in terms of

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community protection, including, but not limited to, the existence

24

of any aggravating factors recognized by the sentencing guidelines,

25

the use of a firearm or other dangerous weapon, and the impact on

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any victim.

27

(b) The juvenile's culpability in committing the alleged

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offense, including, but not limited to, the level of the juvenile's

2

participation in planning and carrying out the offense and the

3

existence of any aggravating or mitigating factors recognized by

4

the sentencing guidelines.

5

(c) The juvenile's prior record of delinquency including, but

6

not limited to, any record of detention, any police record, any

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school record, or any other evidence indicating prior delinquent

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behavior.

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(d) The juvenile's programming history, including, but not

10

limited to, the juvenile's past willingness to participate

11

meaningfully in available programming.

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(e) The adequacy of the punishment or programming available in the juvenile justice system.

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(f) The dispositional options available for the juvenile.

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(4) With the consent of the prosecutor and the defendant, the

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court may waive the hearing required under subsection (3). If the

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court waives the hearing required under subsection (3), the court

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may place the juvenile on probation and commit the juvenile to an

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institution or agency described in the youth rehabilitation

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services act, 1974 PA 150, MCL 803.301 to 803.309, but shall not

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impose any other sentence provided by law for an adult offender.

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(5) If a juvenile is convicted of a violation or conspiracy to

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commit a violation of section 7403(2)(a)(i) of the public health

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code, 1978 PA 368, MCL 333.7403, the court shall determine whether

25

the best interests of the public would be served by imposing the

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sentence provided by law for an adult offender, by placing the

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individual on probation and committing the individual to an

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institution or agency under subsection (3), or by imposing a

2

sentence of imprisonment for any term of years but not less than 25

3

years. If the court determines by clear and convincing evidence

4

that the best interests of the public would be served by imposing a

5

sentence of imprisonment for any term of years but not less than 25

6

years, the court may impose that sentence. In making its

7

determination, the court shall use the criteria specified in

8

subsection (3).

9

(6) The court shall state on the record the court's findings

10

of fact and conclusions of law for the probation and commitment

11

decision or sentencing decision made under subsection (3). If a

12

juvenile is committed under subsection (3) to an institution or

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agency described in the youth rehabilitation services act, 1974 PA

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150, MCL 803.301 to 803.309, a transcript of the court's findings

15

shall be sent to the family independence agency DEPARTMENT OF HUMAN

16

SERVICES or county juvenile agency, as applicable.

17

(7) If a juvenile is committed under subsection (3) or (4) to

18

an institution or agency described in the youth rehabilitation

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services act, 1974 PA 150, MCL 803.301 to 803.309, the written

20

order of commitment shall contain a provision for the reimbursement

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to the court by the juvenile or those responsible for the

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juvenile's support, or both, for the cost of care or service. The

23

amount of reimbursement ordered shall be reasonable, taking into

24

account both the income and resources of the juvenile and those

25

responsible for the juvenile's support. The amount may be based

26

upon the guidelines and model schedule prepared under section 18(6)

27

of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL

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712A.18. The reimbursement provision applies during the entire

2

period the juvenile remains in care outside the juvenile's own home

3

and under court supervision. The court shall provide for the

4

collection of all amounts ordered to be reimbursed, and the money

5

collected shall be accounted for and reported to the county board

6

of commissioners. Collections to cover delinquent accounts or to

7

pay the balance due on reimbursement orders may be made after a

8

juvenile is released or discharged from care outside the juvenile's

9

own home and under court supervision. Twenty-five percent of all

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amounts collected pursuant to an order entered under this

11

subsection shall be credited to the appropriate fund of the county

12

to offset the administrative cost of collections. The balance of

13

all amounts collected pursuant to an order entered under this

14

subsection shall be divided in the same ratio in which the county,

15

state, and federal government participate in the cost of care

16

outside the juvenile's own home and under county, state, or court

17

supervision. The court may also collect benefits paid by the

18

government of the United States for the cost of care of the

19

juvenile. Money collected for juveniles placed with or committed to

20

the family independence agency DEPARTMENT OF HUMAN SERVICES or a

21

county juvenile agency shall be accounted for and reported on an

22

individual basis. In cases of delinquent accounts, the court may

23

also enter an order to intercept state tax refunds or the federal

24

income tax refund of a child, parent, guardian, or custodian and

25

initiate the necessary offset proceedings in order to recover the

26

cost of care or service. The court shall send to the person who is

27

the subject of the intercept order advance written notice of the

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proposed offset. The notice shall include notice of the opportunity

2

to contest the offset on the grounds that the intercept is not

3

proper because of a mistake of fact concerning the amount of the

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delinquency or the identity of the person subject to the order. The

5

court shall provide for the prompt reimbursement of an amount

6

withheld in error or an amount found to exceed the delinquent

7

amount.

8 9

(8) If the court appoints an attorney to represent a juvenile, an order entered under this section may require the juvenile or

10

person responsible for the juvenile's support, or both, to

11

reimburse the court for attorney fees.

12

(9) An order directed to a person responsible for the

13

juvenile's support under this section is not binding on the person

14

unless an opportunity for a hearing has been given and until a copy

15

of the order is served on the person, personally or by first-class

16

mail to the person's last known address.

17

(10) If a juvenile is placed on probation and committed under

18

subsection (3) or (4) to an institution or agency described in the

19

youth rehabilitation services act, 1974 PA 150, MCL 803.301 to

20

803.309, the court shall retain jurisdiction over the juvenile

21

while the juvenile is on probation and committed to that

22

institution or agency.

23

(11) If the court has retained jurisdiction over a juvenile

24

under subsection (10), the court shall conduct an annual review of

25

the services being provided to the juvenile, the juvenile's

26

placement, and the juvenile's progress in that placement. In

27

conducting this review, the court shall examine the juvenile's

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annual report prepared under section 3 of the juvenile facilities

2

act, 1988 PA 73, MCL 803.223. The court may order changes in the

3

juvenile's placement or treatment plan including, but not limited

4

to, committing the juvenile to the jurisdiction of the department

5

of corrections, based on the review.

6

(12) If an individual who is under the court's jurisdiction

7

under section 4 of chapter XIIA of the probate code of 1939, 1939

8

PA 288, MCL 712A.4, is convicted of a violation or conspiracy to

9

commit a violation of section 7403(2)(a)(i) of the public health

10

code, 1978 PA 368, MCL 333.7403, the court shall determine whether

11

the best interests of the public would be served by imposing the

12

sentence provided by law for an adult offender or by imposing a

13

sentence of imprisonment for any term of years but not less than 25

14

years. If the court determines by clear and convincing evidence

15

that the best interests of the public would be served by imposing a

16

sentence of imprisonment for any term of years but not less than 25

17

years, the court may impose that sentence. In making its

18

determination, the court shall use the criteria specified in

19

subsection (3) to the extent they apply.

20

(13) If the defendant is sentenced for an offense other than a

21

listed offense as defined in section 2(d)(i) 2(E)(i) to (ix) (x) and

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(xi) (xii) to (xiii) (xiv) of the sex offenders registration act, 1994

23

PA 295, MCL 28.722, the court shall determine if the offense is a

24

violation of a law of this state or a local ordinance of a

25

municipality of this state that by its nature constitutes a sexual

26

offense against an individual who is less than 18 years of age. If

27

so, the conviction is for a listed offense as defined in section

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2(d)(x) 2(E)(xi) of the sex offenders registration act, 1994 PA 295,

2

MCL 28.722, and the court shall include the basis for that

3

determination on the record and include the determination in the

4

judgment of sentence.

5

(14) When sentencing a person convicted of a misdemeanor

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involving the illegal delivery, possession, or use of alcohol or a

7

controlled substance or a felony, the court shall examine the

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presentence investigation report and determine if the person being

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sentenced is licensed or registered under article 15 of the public

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health code, 1978 PA 368, MCL 333.16101 to 333.18838. The court

11

shall also examine the court file and determine if a report of the

12

conviction upon which the person is being sentenced has been

13

forwarded to the department of consumer and industry services as

14

provided in section 16a. If the report has not been forwarded to

15

the department of consumer and industry services ENERGY, LABOR, AND

16

ECONOMIC GROWTH, the court shall order the clerk of the court to

17

immediately prepare and forward the report as provided in section

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16a.

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(15) THE COURT SHALL NOT SENTENCE AN INDIVIDUAL WHO WAS LESS

20

THAN 18 YEARS OF AGE WHEN THE CRIME WAS COMMITTED TO IMPRISONMENT

21

FOR LIFE WITHOUT PAROLE ELIGIBILITY.

22

Sec. 1b. (1) If a juvenile is placed on probation and

23

committed under section 1(3) or (4) of this chapter to an

24

institution or agency described in the youth rehabilitation

25

services act, 1974 PA 150, MCL 803.301 to 803.309, the court shall

26

conduct a review hearing to determine whether the juvenile has been

27

rehabilitated and whether the juvenile presents a serious risk to

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public safety. If the court determines that the juvenile has not

2

been rehabilitated or that the juvenile presents a serious risk to

3

public safety, jurisdiction over the juvenile shall be continued or

4

the court may commit the juvenile to the department of corrections

5

as provided in this section. In making this determination, the

6

court shall consider the following:

7 8 9 10

(a) The extent and nature of the juvenile's participation in education, counseling, or work programs. (b) The juvenile's willingness to accept responsibility for prior behavior.

11

(c) The juvenile's behavior in his or her current placement.

12

(d) The juvenile's prior record and character and his or her

13 14 15 16

physical and mental maturity. (e) The juvenile's potential for violent conduct as demonstrated by prior behavior. (f) The recommendations of the institution or agency charged

17

with the juvenile's care for the juvenile's release or continued

18

custody.

19 20 21

(g) Other information the prosecuting attorney or juvenile may submit. (2) A review hearing shall be scheduled and held unless

22

adjourned for good cause as near as possible to, but before, the

23

juvenile's nineteenth birthday. If the institution or agency to

24

which the juvenile was committed believes that the juvenile has

25

been rehabilitated and that the juvenile does not present a serious

26

risk to public safety, that institution or agency may petition the

27

court to conduct a review hearing at any time before the juvenile

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becomes 19 years of age or, if the court has continued jurisdiction

2

under subsection (1), at any time before the juvenile becomes 21

3

years of age.

4

(3) Not less than 14 days before a review hearing is to be

5

conducted, the prosecuting attorney, juvenile, and, if addresses

6

are known, the juvenile's parent or guardian shall be notified. The

7

notice shall state that the court may extend jurisdiction over the

8

juvenile and shall advise the juvenile and the juvenile's parent or

9

guardian of the right to legal counsel. If legal counsel has not

10

been retained or appointed to represent the juvenile, the court

11

shall appoint legal counsel and may assess the cost of providing

12

counsel as costs against the juvenile or those responsible for the

13

juvenile's support, or both, if the persons to be assessed are

14

financially able to comply.

15

(4) The institution or agency charged with the care of the

16

juvenile shall prepare commitment reports as provided in section 5

17

of the juvenile facilities act, 1988 PA 73, MCL 803.225, for use by

18

the court at a review hearing held under this section.

19

(5) The court shall conduct a final review of the juvenile's

20

probation and commitment under section 1(3) or (4) of this chapter

21

not less than 3 months before the end of the period that the

22

juvenile is on probation and committed to the institution or

23

agency. If the court determines at this review that the best

24

interests of the public would be served by imposing any other

25

sentence provided by law for an adult offender, the court may,

26

EXCEPT AS PROVIDED IN SUBSECTION (8), impose the sentence. In

27

making its determination, the court shall consider the criteria

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specified in subsection (1) and all of the following criteria:

2

(a) The effect of treatment on the juvenile's rehabilitation.

3

(b) Whether the juvenile is likely to be dangerous to the

4 5 6 7

public if released. (c) The best interests of the public welfare and the protection of public security. (6) Not less than 14 days before a final review hearing under

8

subsection (5) is to be conducted, the prosecuting attorney,

9

juvenile, and, if addresses are known, the juvenile's parent or

10

guardian shall be notified. The notice shall state that the court

11

may impose a sentence upon the juvenile under subsection (5) and

12

shall advise the juvenile and the juvenile's parent or guardian of

13

the right to legal counsel. If legal counsel has not been retained

14

or appointed to represent the juvenile, the court shall appoint

15

legal counsel and may assess the cost of providing counsel as costs

16

against the juvenile or those responsible for the juvenile's

17

support, or both, if the persons to be assessed are financially

18

able to comply.

19

(7) After a sentence is imposed under subsection (1) or (5),

20

the juvenile shall receive credit for the period of time served on

21

probation and committed to an agency or institution under section

22

1(3) or (4) of this chapter.

23

(8) THE COURT SHALL NOT SENTENCE AN INDIVIDUAL WHO WAS LESS

24

THAN 18 YEARS OF AGE WHEN THE CRIME WAS COMMITTED TO IMPRISONMENT

25

FOR LIFE WITHOUT PAROLE ELIGIBILITY.

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March 17, 2009, Introduced by Reps. Scripps, Meadows, Warren, Robert Jones, Tlaib, Miller, Johnson, Jackson, Young, Durhal, Bettie Scott, Smith, Sheltrown, Cushingberry, Haugh and Roberts and referred to the Committee on Judiciary. A bill to amend 1939 PA 288, entitled "Probate code of 1939," by amending sections 2d and 18 of chapter XIIA (MCL 712A.2d and 712A.18), section 2d as amended by 1998 PA 478 and section 18 as amended by 2004 PA 475. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: CHAPTER XIIA

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HOUSE BILL No. 4595

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Sec. 2d. (1) In a petition or amended petition alleging that a

3

juvenile is within the court's jurisdiction under section 2(a)(1)

4

of this chapter for a specified juvenile violation, the prosecuting

5

attorney may designate the case as a case in which the juvenile is

6

to be tried in the same manner as an adult. An amended petition

7

making a designation under this subsection shall be filed only by

8

leave of the court.

9

(2) In a petition alleging that a juvenile is within the

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HOUSE BILL No. 4595

HOUSE BILL No. 4595

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court's jurisdiction under section 2(a)(1) of this chapter for an

2

offense other than a specified juvenile violation, the prosecuting

3

attorney may request that the court designate the case as a case in

4

which the juvenile is to be tried in the same manner as an adult.

5

The court may designate the case following a hearing if it

6

determines that the best interests of the juvenile and the public

7

would be served by the juvenile being tried in the same manner as

8

an adult. In determining whether the best interests of the juvenile

9

and the public would be served, the court shall consider all of the

10

following factors, giving greater weight to the seriousness of the

11

alleged offense and the juvenile's prior delinquency record than to

12

the other factors:

13

(a) The seriousness of the alleged offense in terms of

14

community protection, including, but not limited to, the existence

15

of any aggravating factors recognized by the sentencing guidelines,

16

the use of a firearm or other dangerous weapon, and the impact on

17

any victim.

18

(b) The juvenile's culpability in committing the alleged

19

offense, including, but not limited to, the level of the juvenile's

20

participation in planning and carrying out the offense and the

21

existence of any aggravating or mitigating factors recognized by

22

the sentencing guidelines.

23

(c) The juvenile's prior record of delinquency including, but

24

not limited to, any record of detention, any police record, any

25

school record, or any other evidence indicating prior delinquent

26

behavior.

27

(d) The juvenile's programming history, including, but not

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limited to, the juvenile's past willingness to participate

2

meaningfully in available programming.

3 4

(e) The adequacy of the punishment or programming available in the juvenile justice system.

5

(f) The dispositional options available for the juvenile.

6

(3) If a case is designated under this section, the case shall

7

be set for trial in the same manner as the trial of an adult in a

8

court of general criminal jurisdiction unless a probable cause

9

hearing is required under subsection (4).

10

(4) If the petition in a case designated under this section

11

alleges an offense that if committed by an adult would be a felony

12

or punishable by imprisonment for more than 1 year, the court shall

13

conduct a probable cause hearing not later than 14 days after the

14

case is designated to determine whether there is probable cause to

15

believe the offense was committed and whether there is probable

16

cause to believe the juvenile committed the offense. This hearing

17

may be combined with the designation hearing under subsection (2)

18

for an offense other than a specified juvenile offense. A probable

19

cause hearing under this section is the equivalent of the

20

preliminary examination in a court of general criminal jurisdiction

21

and satisfies the requirement for that hearing. A probable cause

22

hearing shall be conducted by a judge other than the judge who will

23

try the case if the juvenile is tried in the same manner as an

24

adult.

25

(5) If the court determines there is probable cause to believe

26

the offense alleged in the petition was committed and probable

27

cause to believe the juvenile committed the offense, the case shall

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be set for trial in the same manner as the trial of an adult in a

2

court of general criminal jurisdiction.

3

(6) If the court determines that an offense did not occur or

4

there is not probable cause to believe the juvenile committed the

5

offense, the court shall dismiss the petition. If the court

6

determines there is probable cause to believe another offense was

7

committed and there is probable cause to believe the juvenile

8

committed that offense, the court may further determine whether the

9

case should be designated as a case in which the juvenile should be

10

tried in the same manner as an adult as provided in subsection (2).

11

If the court designates the case, the case shall be set for trial

12

in the same manner as the trial of an adult in a court of general

13

criminal jurisdiction.

14

(7) If a case is designated under this section, the

15

proceedings are criminal proceedings and shall afford all

16

procedural protections and guarantees to which the juvenile would

17

be entitled if being tried for the offense in a court of general

18

criminal jurisdiction. A plea of guilty or nolo contendere or a

19

verdict of guilty shall result in entry of a judgment of

20

conviction. The conviction shall have the same effect and

21

liabilities as if it had been obtained in a court of general

22

criminal jurisdiction.

23

(8) Following a judgment of conviction, the court shall enter

24

a disposition or impose a sentence authorized under section

25

18(1)(n) 18(1)(M) of this chapter.

26 27

(9) As used in this section, "specified juvenile violation" means any of the following:

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(a) A violation of section 72, 83, 86, 89, 91, 316, 317, 349,

2

520b, 529, 529a, or 531 of the Michigan penal code, 1931 PA 328,

3

MCL 750.72, 750.83, 750.86, 750.89, 750.91, 750.316, 750.317,

4

750.349, 750.520b, 750.529, 750.529a, and 750.531.

5

(b) A violation of section 84 or 110a(2) of the Michigan penal

6

code, 1931 PA 328, MCL 750.84 and 750.110a, if the juvenile is

7

armed with a dangerous weapon. As used in this subdivision,

8

"dangerous weapon" means 1 or more of the following:

9 10 11

(i) A loaded or unloaded firearm, whether operable or inoperable. (ii) A knife, stabbing instrument, brass knuckles, blackjack,

12

club, or other object specifically designed or customarily carried

13

or possessed for use as a weapon.

14

(iii) An object that is likely to cause death or bodily injury

15

when used as a weapon and that is used as a weapon or carried or

16

possessed for use as a weapon.

17

(iv) An object or device that is used or fashioned in a manner

18

to lead a person to believe the object or device is an object or

19

device described in subparagraphs (i) to (iii).

20

(c) A violation of section 186a of the Michigan penal code,

21

1931 PA 328, MCL 750.186a, regarding escape or attempted escape

22

from a juvenile facility, but only if the juvenile facility from

23

which the juvenile escaped or attempted to escape was 1 of the

24

following:

25

(i) A high-security or medium-security facility operated by the

26

family independence agency DEPARTMENT OF HUMAN SERVICES or a county

27

juvenile agency.

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(ii) A high-security facility operated by a private agency

2

under contract with the family independence agency DEPARTMENT OF

3

HUMAN SERVICES or a county juvenile agency.

4 5 6 7 8 9 10 11 12

(d) A violation of section 7401(2)(a)(i) or 7403(2)(a)(i) of the public health code, 1978 PA 368, MCL 333.7401 and 333.7403. (e) An attempt to commit a violation described in subdivisions (a) to (d). (f) Conspiracy to commit a violation described in subdivisions (a) to (d). (g) Solicitation to commit a violation described in subdivisions (a) to (d). (h) Any lesser included offense of an offense described in

13

subdivisions (a) to (g) if the juvenile is alleged in the petition

14

to have committed an offense described in subdivisions (a) to (g).

15

(i) Any other offense arising out of the same transaction as

16

an offense described in subdivisions (a) to (g) if the juvenile is

17

alleged in the petition to have committed an offense described in

18

subdivisions (a) to (g).

19

Sec. 18. (1) If the court finds that a juvenile concerning

20

whom a petition is filed is not within this chapter, the court

21

shall enter an order dismissing the petition. Except as otherwise

22

provided in subsection (10), if the court finds that a juvenile is

23

within this chapter, the court may enter any of the following

24

orders of disposition that are appropriate for the welfare of the

25

juvenile and society in view of the facts proven and ascertained:

26 27

(a) Warn the juvenile or the juvenile's parents, guardian, or custodian and, except as provided in subsection (7), dismiss the

01625'09 a

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7 1

petition.

2

(b) Place the juvenile on probation, or under supervision in

3

the juvenile's own home or in the home of an adult who is related

4

to the juvenile. As used in this subdivision, "related" means an

5

individual who is at least 18 years of age and related to the child

6

by blood, marriage, or adoption, as grandparent, great-grandparent,

7

great-great-grandparent, aunt or uncle, great-aunt or great-uncle,

8

great-great-aunt or great-great-uncle, sibling, stepsibling, nephew

9

or niece, first cousin or first cousin once removed, and the spouse

10

of any of the above, even after the marriage has ended by death or

11

divorce. A child may be placed with the parent of a man whom the

12

court has found probable cause to believe is the putative father if

13

there is no man with legally established rights to the child. This

14

placement of the child with the parent of a man whom the court has

15

found probable cause to believe is the putative father is for the

16

purposes of placement only and is not to be construed as a finding

17

of paternity or to confer legal standing. The court shall order the

18

terms and conditions of probation or supervision, including

19

reasonable rules for the conduct of the parents, guardian, or

20

custodian, if any, as the court determines necessary for the

21

physical, mental, or moral well-being and behavior of the juvenile.

22

The court may order that the juvenile participate in a juvenile

23

drug treatment court under chapter 10A of the revised judicature

24

act of 1961, 1961 PA 236, MCL 600.1060 to 600.1082. The court also

25

shall order, as a condition of probation or supervision, that the

26

juvenile shall pay the minimum state cost prescribed by section 18m

27

of this chapter.

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8 1

(c) If a juvenile is within the court's jurisdiction under

2

section 2(a) of this chapter, or under section 2(h) of this chapter

3

for a supplemental petition, place the juvenile in a suitable

4

foster care home subject to the court's supervision. If a juvenile

5

is within the court's jurisdiction under section 2(b) of this

6

chapter, the court shall not place a juvenile in a foster care home

7

subject to the court's supervision.

8 9

(d) Except as otherwise provided in this subdivision, place the juvenile in or commit the juvenile to a private institution or

10

agency approved or licensed by the department of consumer and

11

industry services for the care of juveniles of similar age, sex,

12

and characteristics. If the juvenile is not a ward of the court,

13

the court shall commit the juvenile to the family independence

14

agency DEPARTMENT OF HUMAN SERVICES or, if the county is a county

15

juvenile agency, to that county juvenile agency for placement in or

16

commitment to such an institution or agency as the family

17

independence agency DEPARTMENT OF HUMAN SERVICES or county juvenile

18

agency determines is most appropriate, subject to any initial level

19

of placement the court designates.

20

(e) Except as otherwise provided in this subdivision, commit

21

the juvenile to a public institution, county facility, institution

22

operated as an agency of the court or county, or agency authorized

23

by law to receive juveniles of similar age, sex, and

24

characteristics. If the juvenile is not a ward of the court, the

25

court shall commit the juvenile to the family independence agency

26

DEPARTMENT OF HUMAN SERVICES or, if the county is a county juvenile

27

agency, to that county juvenile agency for placement in or

01625'09 a

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9 1

commitment to such an institution or facility as the family

2

independence agency DEPARTMENT OF HUMAN SERVICES or county juvenile

3

agency determines is most appropriate, subject to any initial level

4

of placement the court designates. If a child is not less than 17

5

years of age and is in violation of a personal protection order,

6

the court may commit the child to a county jail within the adult

7

prisoner population. In a placement under subdivision (d) or a

8

commitment under this subdivision, except to a state institution or

9

a county juvenile agency institution, the juvenile's religious

10

affiliation shall be protected by placement or commitment to a

11

private child-placing or child-caring agency or institution, if

12

available. Except for commitment to the family independence agency

13

DEPARTMENT OF HUMAN SERVICES or a county juvenile agency, an order

14

of commitment under this subdivision to a state institution or

15

agency described in the youth rehabilitation services act, 1974 PA

16

150, MCL 803.301 to 803.309, or in 1935 PA 220, MCL 400.201 to

17

400.214, the court shall name the superintendent of the institution

18

to which the juvenile is committed as a special guardian to receive

19

benefits due the juvenile from the government of the United States.

20

An order of commitment under this subdivision to the family

21

independence agency DEPARTMENT OF HUMAN SERVICES or a county

22

juvenile agency shall name that agency as a special guardian to

23

receive those benefits. The benefits received by the special

24

guardian shall be used to the extent necessary to pay for the

25

portions of the cost of care in the institution or facility that

26

the parent or parents are found unable to pay.

27

(f) Provide the juvenile with medical, dental, surgical, or

01625'09 a

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10 1

other health care, in a local hospital if available, or elsewhere,

2

maintaining as much as possible a local physician-patient

3

relationship, and with clothing and other incidental items the

4

court determines are necessary.

5

(g) Order the parents, guardian, custodian, or any other

6

person to refrain from continuing conduct that the court determines

7

has caused or tended to cause the juvenile to come within or to

8

remain under this chapter or that obstructs placement or commitment

9

of the juvenile by an order under this section.

10

(h) Appoint a guardian under section 5204 of the estates and

11

protected individuals code, 1998 PA 386, MCL 700.5204, in response

12

to a petition filed with the court by a person interested in the

13

juvenile's welfare. If the court appoints a guardian as authorized

14

by this subdivision, it may dismiss the petition under this

15

chapter.

16

(i) Order the juvenile to engage in community service.

17

(j) If the court finds that a juvenile has violated a

18

municipal ordinance or a state or federal law, order the juvenile

19

to pay a civil fine in the amount of the civil or penal fine

20

provided by the ordinance or law. Money collected from fines levied

21

under this subsection shall be distributed as provided in section

22

29 of this chapter.

23

(k) If a juvenile is within the court's jurisdiction under

24

section 2(a)(1) of this chapter, order the juvenile's parent or

25

guardian to personally participate in treatment reasonably

26

available in the parent's or guardian's location.

27

(l) If a juvenile is within the court's jurisdiction under

01625'09 a

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11 1

section 2(a)(1) of this chapter, place the juvenile in and order

2

the juvenile to complete satisfactorily a program of training in a

3

juvenile boot camp established by the family independence agency

4

DEPARTMENT OF HUMAN SERVICES under the juvenile boot camp act, 1996

5

PA 263, MCL 400.1301 to 400.1309, as provided in that act. If the

6

county is a county juvenile agency, however, the court shall commit

7

the juvenile to that county juvenile agency for placement in the

8

program under that act. Upon receiving a report of satisfactory

9

completion of the program from the family independence agency

10

DEPARTMENT OF HUMAN SERVICES, the court shall authorize the

11

juvenile's release from placement in the juvenile boot camp.

12

Following satisfactory completion of the juvenile boot camp

13

program, the juvenile shall complete an additional period of not

14

less than 120 days or more than 180 days of intensive supervised

15

community reintegration in the juvenile's local community. To place

16

or commit a juvenile under this subdivision, the court shall

17

determine all of the following:

18 19 20 21 22 23 24 25

(i) Placement in a juvenile boot camp will benefit the juvenile. (ii) The juvenile is physically able to participate in the program. (iii) The juvenile does not appear to have any mental handicap that would prevent participation in the program. (iv) The juvenile will not be a danger to other juveniles in the boot camp.

26

(v) There is an opening in a juvenile boot camp program.

27

(vi) If the court must commit the juvenile to a county juvenile

01625'09 a

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12 1

agency, the county juvenile agency is able to place the juvenile in

2

a juvenile boot camp program.

3

(m) If the court entered a judgment of conviction under

4

section 2d of this chapter, enter any disposition under this

5

section or, if the court determines that the best interests of the

6

public would be served, impose any sentence upon the juvenile that

7

could be imposed upon an adult convicted of the offense for which

8

the juvenile was convicted, OTHER THAN IMPRISONMENT FOR LIFE

9

WITHOUT PAROLE ELIGIBILITY. If the juvenile is convicted of a

10

violation or conspiracy to commit a violation of section

11

7403(2)(a)(i) of the public health code, 1978 PA 368, MCL 333.7403,

12

the court may impose the alternative sentence permitted under that

13

section if the court determines that the best interests of the

14

public would be served. The court may delay imposing a sentence of

15

imprisonment under this subdivision for a period not longer than

16

the period during which the court has jurisdiction over the

17

juvenile under this chapter by entering an order of disposition

18

delaying imposition of sentence and placing the juvenile on

19

probation upon the terms and conditions it considers appropriate,

20

including any disposition under this section. If the court delays

21

imposing sentence under this section, section 18i of this chapter

22

applies. If the court imposes sentence, it shall enter a judgment

23

of sentence. If the court imposes a sentence of imprisonment, the

24

juvenile shall receive credit against the sentence for time served

25

before sentencing. In determining whether to enter an order of

26

disposition or impose a sentence under this subdivision, the court

27

shall consider all of the following factors, giving greater weight

01625'09 a

TVD

13 1

to the seriousness of the offense and the juvenile's prior record:

2

(i) The seriousness of the offense in terms of community

3

protection, including, but not limited to, the existence of any

4

aggravating factors recognized by the sentencing guidelines, the

5

use of a firearm or other dangerous weapon, and the impact on any

6

victim.

7

(ii) The juvenile's culpability in committing the offense,

8

including, but not limited to, the level of the juvenile's

9

participation in planning and carrying out the offense and the

10

existence of any aggravating or mitigating factors recognized by

11

the sentencing guidelines.

12

(iii) The juvenile's prior record of delinquency including, but

13

not limited to, any record of detention, any police record, any

14

school record, or any other evidence indicating prior delinquent

15

behavior.

16

(iv) The juvenile's programming history, including, but not

17

limited to, the juvenile's past willingness to participate

18

meaningfully in available programming.

19 20

(v) The adequacy of the punishment or programming available in the juvenile justice system.

21

(vi) The dispositional options available for the juvenile.

22

(2) An order of disposition placing a juvenile in or

23

committing a juvenile to care outside of the juvenile's own home

24

and under state, county juvenile agency, or court supervision shall

25

contain a provision for reimbursement by the juvenile, parent,

26

guardian, or custodian to the court for the cost of care or

27

service. The order shall be reasonable, taking into account both

01625'09 a

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14 1

the income and resources of the juvenile, parent, guardian, or

2

custodian. The amount may be based upon the guidelines and model

3

schedule created under subsection (6). If the juvenile is receiving

4

an adoption support subsidy under sections 115f to 115m of the

5

social welfare act, 1939 PA 280, MCL 400.115f to 400.115m, the

6

amount shall not exceed the amount of the support subsidy. The

7

reimbursement provision applies during the entire period the

8

juvenile remains in care outside of the juvenile's own home and

9

under state, county juvenile agency, or court supervision, unless

10

the juvenile is in the permanent custody of the court. The court

11

shall provide for the collection of all amounts ordered to be

12

reimbursed and the money collected shall be accounted for and

13

reported to the county board of commissioners. Collections to cover

14

delinquent accounts or to pay the balance due on reimbursement

15

orders may be made after a juvenile is released or discharged from

16

care outside the juvenile's own home and under state, county

17

juvenile agency, or court supervision. Twenty-five percent of all

18

amounts collected under an order entered under this subsection

19

shall be credited to the appropriate fund of the county to offset

20

the administrative cost of collections. The balance of all amounts

21

collected under an order entered under this subsection shall be

22

divided in the same ratio in which the county, state, and federal

23

government participate in the cost of care outside the juvenile's

24

own home and under state, county juvenile agency, or court

25

supervision. The court may also collect from the government of the

26

United States benefits paid for the cost of care of a court ward.

27

Money collected for juveniles placed by the court with or committed

01625'09 a

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15 1

to the family independence agency DEPARTMENT OF HUMAN SERVICES or a

2

county juvenile agency shall be accounted for and reported on an

3

individual juvenile basis. In cases of delinquent accounts, the

4

court may also enter an order to intercept state or federal tax

5

refunds of a juvenile, parent, guardian, or custodian and initiate

6

the necessary offset proceedings in order to recover the cost of

7

care or service. The court shall send to the person who is the

8

subject of the intercept order advance written notice of the

9

proposed offset. The notice shall include notice of the opportunity

10

to contest the offset on the grounds that the intercept is not

11

proper because of a mistake of fact concerning the amount of the

12

delinquency or the identity of the person subject to the order. The

13

court shall provide for the prompt reimbursement of an amount

14

withheld in error or an amount found to exceed the delinquent

15

amount.

16

(3) An order of disposition placing a juvenile in the

17

juvenile's own home under subsection (1)(b) may contain a provision

18

for reimbursement by the juvenile, parent, guardian, or custodian

19

to the court for the cost of service. If an order is entered under

20

this subsection, an amount due shall be determined and treated in

21

the same manner provided for an order entered under subsection (2).

22

(4) An order directed to a parent or a person other than the

23

juvenile is not effective and binding on the parent or other person

24

unless opportunity for hearing is given by issuance of summons or

25

notice as provided in sections 12 and 13 of this chapter and until

26

a copy of the order, bearing the seal of the court, is served on

27

the parent or other person as provided in section 13 of this

01625'09 a

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16 1 2

chapter. (5) If the court appoints an attorney to represent a juvenile,

3

parent, guardian, or custodian, the court may require in an order

4

entered under this section that the juvenile, parent, guardian, or

5

custodian reimburse the court for attorney fees.

6

(6) The office of the state court administrator, under the

7

supervision and direction of the supreme court, shall create

8

guidelines that the court may use in determining the ability of the

9

juvenile, parent, guardian, or custodian to pay for care and any

10

costs of service ordered under subsection (2) or (3). The

11

guidelines shall take into account both the income and resources of

12

the juvenile, parent, guardian, or custodian.

13

(7) If the court finds that a juvenile comes under section 30

14

of this chapter, the court shall order the juvenile or the

15

juvenile's parent to pay restitution as provided in sections 30 and

16

31 of this chapter and in sections 44 and 45 of the WILLIAM VAN

17

REGENMORTER crime victim's rights act, 1985 PA 87, MCL 780.794 and

18

780.795.

19

(8) If the court imposes restitution as a condition of

20

probation, the court shall require the juvenile to do either of the

21

following as an additional condition of probation:

22 23 24 25 26 27

(a) Engage in community service or, with the victim's consent, perform services for the victim. (b) Seek and maintain paid employment and pay restitution to the victim from the earnings of that employment. (9) If the court finds that the juvenile is in intentional default of the payment of restitution, a court may, as provided in

01625'09 a

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17 1

section 31 of this chapter, revoke or alter the terms and

2

conditions of probation for nonpayment of restitution. If a

3

juvenile who is ordered to engage in community service

4

intentionally refuses to perform the required community service,

5

the court may revoke or alter the terms and conditions of

6

probation.

7

(10) The court shall not enter an order of disposition for a

8

juvenile offense as defined in section 1a of 1925 PA 289, MCL

9

28.241a, or a judgment of sentence for a conviction until the court

10

has examined the court file and has determined that the juvenile's

11

fingerprints have been taken and forwarded as required by section 3

12

of 1925 PA 289, MCL 28.243, and as required by the sex offenders

13

registration act, 1994 PA 295, MCL 28.721 to 28.732 28.736. If a

14

juvenile has not had his or her fingerprints taken, the court shall

15

do either of the following:

16

(a) Order the juvenile to submit himself or herself to the

17

police agency that arrested or obtained the warrant for the

18

juvenile's arrest so the juvenile's fingerprints can be taken and

19

forwarded.

20 21 22

(b) Order the juvenile committed to the sheriff's custody for taking and forwarding the juvenile's fingerprints. (11) Upon final disposition, conviction, acquittal, or

23

dismissal of an offense within the court's jurisdiction under

24

section 2(a)(1) of this chapter, using forms approved by the state

25

court administrator, the clerk of the court entering the final

26

disposition, conviction, acquittal, or dismissal shall immediately

27

advise the department of state police of that final disposition,

01625'09 a

TVD

18 1

conviction, acquittal, or dismissal as required by section 3 of

2

1925 PA 289, MCL 28.243. The report to the department of state

3

police shall include information as to the finding of the judge or

4

jury and a summary of the disposition or sentence imposed.

5

(12) If the court enters an order of disposition based on an

6

act that is a juvenile offense as defined in section 1 of 1989 PA

7

196, MCL 780.901, the court shall order the juvenile to pay the

8

assessment as provided in that act. If the court enters a judgment

9

of conviction under section 2d of this chapter for an offense that

10

is a felony, serious misdemeanor, or specified misdemeanor as

11

defined in section 1 of 1989 PA 196, MCL 780.901, the court shall

12

order the juvenile to pay the assessment as provided in that act.

13

(13) If the court has entered an order of disposition or a

14

judgment of conviction for a listed offense as defined in section 2

15

of the sex offenders registration act, 1994 PA 295, MCL 28.722, the

16

court, the family independence agency DEPARTMENT OF HUMAN SERVICES,

17

or the county juvenile agency shall register the juvenile or accept

18

the juvenile's registration as provided in the sex offenders

19

registration act, 1994 PA 295, MCL 28.721 to 28.732 28.736.

20

(14) If the court enters an order of disposition placing a

21

juvenile in a juvenile boot camp program, or committing a juvenile

22

to a county juvenile agency for placement in a juvenile boot camp

23

program, and the court receives from the family independence agency

24

DEPARTMENT OF HUMAN SERVICES a report that the juvenile has failed

25

to perform satisfactorily in the program, that the juvenile does

26

not meet the program's requirements or is medically unable to

27

participate in the program for more than 25 days, that there is no

01625'09 a

TVD

19 1

opening in a juvenile boot camp program, or that the county

2

juvenile agency is unable to place the juvenile in a juvenile boot

3

camp program, the court shall release the juvenile from placement

4

or commitment and enter an alternative order of disposition. A

5

juvenile shall not be placed in a juvenile boot camp under an order

6

of disposition more than once, except that a juvenile returned to

7

the court for a medical condition, because there was no opening in

8

a juvenile boot camp program, or because the county juvenile agency

9

was unable to place the juvenile in a juvenile boot camp program

10

may be placed again in the juvenile boot camp program after the

11

medical condition is corrected, an opening becomes available, or

12

the county juvenile agency is able to place the juvenile.

13

(15) If the juvenile is within the court's jurisdiction under

14

section 2(a)(1) of this chapter for an offense other than a listed

15

offense as defined in section 2(e)(i) to (ix) (x) and (xi) (xii) to

16

(xiii) (xiv) of the sex offenders registration act, 1994 PA 295, MCL

17

28.722, the court shall determine if the offense is a violation of

18

a law of this state or a local ordinance of a municipality of this

19

state that by its nature constitutes a sexual offense against an

20

individual who is less than 18 years of age. If so, the order of

21

disposition is for a listed offense as defined in section 2(e)(x)

22

2(E)(xi) of the sex offenders registration act, 1994 PA 295, MCL

23

28.722, and the court shall include the basis for that

24

determination on the record and include the determination in the

25

order of disposition.

26 27

(16) The court shall not impose a sentence of imprisonment in the county jail under subsection (1)(m) unless the present county

01625'09 a

TVD

20 1

jail facility for the juvenile's imprisonment would meet all

2

requirements under federal law and regulations for housing

3

juveniles. The court shall not impose the sentence until it

4

consults with the sheriff to determine when the sentence will begin

5

to ensure that space will be available for the juvenile.

6

(17) In a proceeding under section 2(h) of this chapter, this

7

section only applies to a disposition for a violation of a personal

8

protection order and subsequent proceedings.

9

(18) If a juvenile is within the court's jurisdiction under

10

section 2(a)(1) of this chapter, the court shall order the juvenile

11

to pay costs as provided in section 18m of this chapter.

12

(19) A juvenile who has been ordered to pay the minimum state

13

cost as provided in section 18m of this chapter as a condition of

14

probation or supervision and who is not in willful default of the

15

payment of the minimum state cost may petition the court at any

16

time for a remission of the payment of any unpaid portion of the

17

minimum state cost. If the court determines that payment of the

18

amount due will impose a manifest hardship on the juvenile or his

19

or her immediate family, the court may remit all or part of the

20

amount of the minimum state cost due or modify the method of

21

payment.

22

Enacting section 1. This amendatory act does not take effect

23

unless all of the following bills of the 95th Legislature are

24

enacted into law:

25 26 27

(a) Senate Bill No.____ or House Bill No. 4594(request no. 01625'09). (b) Senate Bill No.____ or House Bill No. 4596(request no.

01625'09 a

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21 1 2 3

01625'09 b). (c) Senate Bill No.____ or House Bill No. 4518(request no. 01625'09 c).

01625'09 a

Final Page

TVD

March 17, 2009, Introduced by Reps. Robert Jones, Meadows, Warren, Scripps, Tlaib, Switalski, Miller, Johnson, Jackson, Young, Durhal, Bettie Scott, Smith, Sheltrown, Cushingberry, Haugh and Roberts and referred to the Committee on Judiciary. A bill to amend 1953 PA 232, entitled "Corrections code of 1953," by amending section 34 (MCL 791.234), as amended by 2006 PA 167. THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

HOUSE BILL No. 4596

1

Sec. 34. (1) Except as provided in section 34a, a prisoner

2

sentenced to an indeterminate sentence and confined in a state

3

correctional facility with a minimum in terms of years other than a

4

prisoner subject to disciplinary time is subject to the

5

jurisdiction of the parole board when the prisoner has served a

6

period of time equal to the minimum sentence imposed by the court

7

for the crime of which he or she was convicted, less good time and

8

disciplinary credits, if applicable.

9

(2) Except as provided in section 34a, a prisoner subject to

10

disciplinary time sentenced to an indeterminate sentence and

11

confined in a state correctional facility with a minimum in terms

01625'09 b

TVD

HOUSE BILL No. 4596

HOUSE BILL No. 4596

2 1

of years is subject to the jurisdiction of the parole board when

2

the prisoner has served a period of time equal to the minimum

3

sentence imposed by the court for the crime of which he or she was

4

convicted.

5

(3) If a prisoner other than a prisoner subject to

6

disciplinary time is sentenced for consecutive terms, whether

7

received at the same time or at any time during the life of the

8

original sentence, the parole board has jurisdiction over the

9

prisoner for purposes of parole when the prisoner has served the

10

total time of the added minimum terms, less the good time and

11

disciplinary credits allowed by statute. The maximum terms of the

12

sentences shall be added to compute the new maximum term under this

13

subsection, and discharge shall be issued only after the total of

14

the maximum sentences has been served less good time and

15

disciplinary credits, unless the prisoner is paroled and discharged

16

upon satisfactory completion of the parole.

17

(4) If a prisoner subject to disciplinary time is sentenced

18

for consecutive terms, whether received at the same time or at any

19

time during the life of the original sentence, the parole board has

20

jurisdiction over the prisoner for purposes of parole when the

21

prisoner has served the total time of the added minimum terms. The

22

maximum terms of the sentences shall be added to compute the new

23

maximum term under this subsection, and discharge shall be issued

24

only after the total of the maximum sentences has been served,

25

unless the prisoner is paroled and discharged upon satisfactory

26

completion of the parole.

27

(5) If a prisoner other than a prisoner subject to

01625'09 b

TVD

3 1

disciplinary time has 1 or more consecutive terms remaining to

2

serve in addition to the term he or she is serving, the parole

3

board may terminate the sentence the prisoner is presently serving

4

at any time after the minimum term of the sentence has been served.

5

(6) A prisoner sentenced to imprisonment for life for any of

6

the following is not eligible for parole and is instead subject to

7

the provisions of section 44:

8 9 10 11 12 13 14 15 16

(a) First degree murder in violation of section 316 of the Michigan penal code, 1931 PA 328, MCL 750.316. (b) A violation of section 16(5) or 18(7) of the Michigan penal code, 1931 PA 328, MCL 750.16 and 750.18. (c) A violation of chapter XXXIII of the Michigan penal code, 1931 PA 328, MCL 750.200 to 750.212a. (d) A violation of section 17764(7) of the public health code, 1978 PA 368, MCL 333.17764. (e) First degree criminal sexual conduct in violation of

17

section 520b(2)(c) of the Michigan penal code, 1931 PA 328, MCL

18

750.520b.

19 20 21

(f) Any other violation for which parole eligibility is expressly denied under state law. (7) A prisoner sentenced to imprisonment for life, other than

22

a prisoner described in subsection (6), is subject to the

23

jurisdiction of the parole board and may be placed on parole

24

according to the conditions prescribed in subsection (8) if he or

25

she meets any of the following criteria:

26 27

(a) Except as provided in subdivision (b) or (c), the prisoner has served 10 calendar years of the sentence for a crime committed

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4 1

before October 1, 1992 or 15 calendar years of the sentence for a

2

crime committed on or after October 1, 1992.

3

(b) Except as provided in subsection (12), the prisoner has

4

served 20 calendar years of a sentence for violating or conspiring

5

to violate section 7401(2)(a)(i) of the public health code, 1978 PA

6

368, MCL 333.7401, and has another conviction for a serious crime.

7

(c) Except as provided in subsection (12), the prisoner has

8

served 17-1/2 calendar years of the sentence for violating or

9

conspiring to violate section 7401(2)(a)(i) of the public health

10

code, 1978 PA 368, MCL 333.7401, and does not have another

11

conviction for a serious crime.

12 13 14

(8) A parole granted to a prisoner under subsection (7) is subject to the following conditions: (a) At the conclusion of 10 calendar years of the prisoner's

15

sentence and thereafter as determined by the parole board until the

16

prisoner is paroled, discharged, or deceased, and in accordance

17

with the procedures described in subsection (9), 1 member of the

18

parole board shall interview the prisoner. The interview schedule

19

prescribed in this subdivision applies to all prisoners to whom

20

subsection (7) applies, regardless of the date on which they were

21

sentenced.

22

(b) In addition to the interview schedule prescribed in

23

subdivision (a), the parole board shall review the prisoner's file

24

at the conclusion of 15 calendar years of the prisoner's sentence

25

and every 5 years thereafter until the prisoner is paroled,

26

discharged, or deceased. A prisoner whose file is to be reviewed

27

under this subdivision shall be notified of the upcoming file

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5 1

review at least 30 days before the file review takes place and

2

shall be allowed to submit written statements or documentary

3

evidence for the parole board's consideration in conducting the

4

file review.

5

(c) A decision to grant or deny parole to the prisoner shall

6

not be made until after a public hearing held in the manner

7

prescribed for pardons and commutations in sections 44 and 45.

8

Notice of the public hearing shall be given to the sentencing

9

judge, or the judge's successor in office, and parole shall not be

10

granted if the sentencing judge, or the judge's successor in

11

office, files written objections to the granting of the parole

12

within 30 days of receipt of the notice of hearing. The written

13

objections shall be made part of the prisoner's file.

14

(d) A parole granted under subsection (7) shall be for a

15

period of not less than 4 years and subject to the usual rules

16

pertaining to paroles granted by the parole board. A parole granted

17

under subsection (7) is not valid until the transcript of the

18

record is filed with the attorney general whose certification of

19

receipt of the transcript shall be returnable to the office of the

20

parole board within 5 days. Except for medical records protected

21

under section 2157 of the revised judicature act of 1961, 1961 PA

22

236, MCL 600.2157, the file of a prisoner granted a parole under

23

subsection (7) is a public record.

24 25

(9) An interview conducted under subsection (8)(a) is subject to both of the following requirements:

26

(a) The prisoner shall be given written notice, not less than

27

30 days before the interview date, stating that the interview will

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6 1 2

be conducted. (b) The prisoner may be represented at the interview by an

3

individual of his or her choice. The representative shall not be

4

another prisoner. A prisoner is not entitled to appointed counsel

5

at public expense. The prisoner or representative may present

6

relevant evidence in favor of holding a public hearing as allowed

7

in subsection (8)(b).

8

(10) In determining whether a prisoner convicted of violating

9

or conspiring to violate section 7401(2)(a)(i) of the public health

10

code, 1978 PA 368, MCL 333.7401, and sentenced to imprisonment for

11

life before October 1, 1998 is to be released on parole, the parole

12

board shall consider all of the following:

13

(a) Whether the violation was part of a continuing series of

14

violations of section 7401 or 7403 of the public health code, 1978

15

PA 368, MCL 333.7401 and 333.7403, by that individual.

16 17

(b) Whether the violation was committed by the individual in concert with 5 or more other individuals.

18

(c) Any of the following:

19

(i) Whether the individual was a principal administrator,

20

organizer, or leader of an entity that the individual knew or had

21

reason to know was organized, in whole or in part, to commit

22

violations of section 7401 or 7403 of the public health code, 1978

23

PA 368, MCL 333.7401 and 333.7403, and whether the violation for

24

which the individual was convicted was committed to further the

25

interests of that entity.

26 27

(ii) Whether the individual was a principal administrator, organizer, or leader of an entity that the individual knew or had

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7 1

reason to know committed violations of section 7401 or 7403 of the

2

public health code, 1978 PA 368, MCL 333.7401 and 333.7403, and

3

whether the violation for which the individual was convicted was

4

committed to further the interests of that entity. (iii) Whether the violation was committed in a drug-free school

5 6 7

zone. (iv) Whether the violation involved the delivery of a

8

controlled substance to an individual less than 17 years of age or

9

possession with intent to deliver a controlled substance to an

10 11

individual less than 17 years of age. (11) Except as provided in section 34a, a prisoner's release

12

on parole is discretionary with the parole board. The action of the

13

parole board in granting a parole is appealable by the prosecutor

14

of the county from which the prisoner was committed or the victim

15

of the crime for which the prisoner was convicted. The appeal shall

16

be to the circuit court in the county from which the prisoner was

17

committed, by leave of the court.

18

(12) If the sentencing judge, or his or her successor in

19

office, determines on the record that a prisoner described in

20

subsection (7)(b) or (c) sentenced to imprisonment for life for

21

violating or conspiring to violate section 7401(2)(a)(i) of the

22

public health code, 1978 PA 368, MCL 333.7401, has cooperated with

23

law enforcement, the prisoner is subject to the jurisdiction of the

24

parole board and may be released on parole as provided in

25

subsection (7)(b) or (c) 2-1/2 years earlier than the time

26

otherwise indicated in subsection (7)(b) or (c). The prisoner is

27

considered to have cooperated with law enforcement if the court

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8 1

determines on the record that the prisoner had no relevant or

2

useful information to provide. The court shall not make a

3

determination that the prisoner failed or refused to cooperate with

4

law enforcement on grounds that the defendant exercised his or her

5

constitutional right to trial by jury. If the court determines at

6

sentencing that the defendant cooperated with law enforcement, the

7

court shall include its determination in the judgment of sentence.

8 9

(13) An individual convicted of violating or conspiring to violate section 7401(2)(a)(ii) or 7403(2)(a)(ii) of the public health

10

code, 1978 PA 368, MCL 333.7401 and 333.7403, before March 1, 2003

11

is eligible for parole after serving the minimum of each sentence

12

imposed for that violation or 10 years of each sentence imposed for

13

that violation, whichever is less.

14

(14) An individual convicted of violating or conspiring to

15

violate section 7401(2)(a)(iii) or 7403(2)(a)(iii) of the public health

16

code, 1978 PA 368, MCL 333.7401 and 333.7403, before March 1, 2003

17

is eligible for parole after serving the minimum of each sentence

18

imposed for that violation or 5 years of each sentence imposed for

19

that violation, whichever is less.

20

(15) An individual convicted of violating or conspiring to

21

violate section 7401(2)(a)(iv) or 7403(2)(a)(iv) of the public health

22

code, 1978 PA 368, MCL 333.7401 and 333.7403, before March 1, 2003

23

who is sentenced to a term of imprisonment that is consecutive to a

24

term of imprisonment imposed for any other violation of section

25

7401(2)(a)(i) to (iv) or section 7403(2)(a)(i) to (iv) is eligible for

26

parole after serving 1/2 of the minimum sentence imposed for each

27

violation of section 7401(2)(a)(iv) or 7403(2)(a)(iv). This

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9 1

subsection does not apply if the sentence was imposed for a

2

conviction for a new offense committed while the individual is on

3

probation or parole.

4

(16) NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS

5

SECTION, AN INDIVIDUAL WHO WAS LESS THAN 18 YEARS OF AGE WHEN HE OR

6

SHE COMMITTED A CRIME FOR WHICH HE OR SHE WAS SENTENCED TO SERVE A

7

MINIMUM TERM OF IMPRISONMENT OF 10 YEARS OR MORE, OR WHO WAS

8

SENTENCED TO IMPRISONMENT FOR LIFE, INCLUDING IMPRISONMENT FOR LIFE

9

WITHOUT PAROLE ELIGIBILITY, WHO HAS SERVED 10 YEARS OF HIS OR HER

10

SENTENCE IS SUBJECT TO THE JURISDICTION OF THE PAROLE BOARD AND MAY

11

BE RELEASED ON PAROLE BY THE PAROLE BOARD. IN DETERMINING WHETHER

12

TO RELEASE AN INDIVIDUAL ON PAROLE UNDER THIS SUBSECTION, THE

13

PAROLE BOARD SHALL CONSIDER ALL OF THE FOLLOWING:

14 15

(A) THE INDIVIDUAL'S AGE AND LEVEL OF MATURITY AT THE TIME OF THE OFFENSE.

16

(B) THE INDIVIDUAL'S DEGREE OF PARTICIPATION IN THE OFFENSE.

17

(C) THE NATURE OF THE OFFENSE.

18

(D) THE SEVERITY OF THE OFFENSE.

19

(E) THE INDIVIDUAL'S PRIOR JUVENILE OR CRIMINAL HISTORY.

20

(F) THE INDIVIDUAL'S LIKELIHOOD TO COMMIT FURTHER OFFENSES.

21

(G) ANY OTHER INFORMATION CONSIDERED RELEVANT BY THE PAROLE

22 23

BOARD. (17) (16) The parole board shall provide notice to the

24

prosecuting attorney of the county in which the individual was

25

convicted before granting parole to the individual under subsection

26

(13), (14), or (15), OR (16).

27

(18) (17) As used in this section:

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10 1

(a) "Serious crime" means violating or conspiring to violate

2

article 7 of the public health code, 1978 PA 368, MCL 333.7101 to

3

333.7545, that is punishable by imprisonment for more than 4 years,

4

or an offense against a person in violation of section 83, 84, 86,

5

87, 88, 89, 316, 317, 321, 349, 349a, 350, 397, 520b, 520c, 520d,

6

520g, 529, 529a, or 530 of the Michigan penal code, 1931 PA 328,

7

MCL 750.83, 750.84, 750.86, 750.87, 750.88, 750.89, 750.316,

8

750.317, 750.321, 750.349, 750.349a, 750.350, 750.397, 750.520b,

9

750.520c, 750.520d, 750.520g, 750.529, 750.529a, and 750.530.

10

(b) "State correctional facility" means a facility that houses

11

prisoners committed to the jurisdiction of the department, and

12

includes a youth correctional facility operated under section 20g

13

by the department or a private vendor.

14

Enacting section 1. This amendatory act does not take effect

15

unless all of the following bills of the 95th Legislature are

16

enacted into law:

17 18 19 20 21 22

(a) Senate Bill No.____ or House Bill No. 4594(request no. 01625'09). (b) Senate Bill No.____ or House Bill No. 4595(request no. 01625'09 a). (c) Senate Bill No.____ or House Bill No. 4518(request no. 01625'09 c).

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