MIM Legal Notes: Michigan Parole Statutes and Rules 

by a Michigan Prisoner

Michigan parole statutes and rules are void for vagueness because 
they are not as reasonably precise as the subject matter requires 
or permits.

A statute may be challenged for vagueness on three grounds: (1) It 
does not provide fair notice of the conduct proscribed; (2) It 
confers on the trier of fact unstructured and unlimited discretion 
to determine whether an offense has been committed; and (3) Its 
coverage is overbroad and impinges on First Amendment freedoms. 
ITAL Kotmar, Ltd. V. Liguor Control Comm. END, 207 Mich. App. 687, 
696; 525 N.W. 2d 99 (1995). Vagueness challenges to statutes, 
ordinances, or agency rules which do not involve First Amendment 
freedoms must be examined in light of the facts of the cases at 
hand. ITAL West Bloomfield Twp. END, supra [citations omitted] MCL 
791.233e; MSA 28.2303(6) and administrative agency rules at issue 
are vague because they lack standards. This vagueness makes 
rational administration of the statute and administrative rules 
impossible because the standards are not as reasonably precise as 
the subject matter requires or permits, as can be seen by 
examination of each section of the statute.

MCL 791.233e; MSA 28.303(6)

(a) The offense for which the prisoner is incarcerated at the time 
of parole consideration.

Section (a) is vague because it does not provide the parole board 
with any guidelines for using the information concerning the 
offense for which the prisoner is incarcerated. This provision 
should only be used for the purpose of setting the conditions of 
parole. Any use of this information as the sole reason for denying 
a parole is tantamount to the parole board re-sentencing the 
individual, thereby violating the separation of powers clause. Art 
3 section 2 of the Michigan Constitution.

(b) The prisoner's institutional program performance.

While the prisoner's institutional program performance should be 
considered, the board should also be considering whether or not 
the programs were in fact available to the prisoner. Many 
institutions do not provide programs which are recommended by the 
Reception and Guidance Centers. Other facilities require a 
prisoner to be within two years of his/her first outdate (minimum 
term) before the prisoner will be able to start the program. (This 
is especially true for Sex Offender therapy and assaultive 
offender therapy at institutions that offer these programs.) The 
two-year requirement causes the prisoner to be still in the 
program when he/she sees the parole board. Many times the parole 
board gives a prisoner a passover in order to allow the prisoner 
to continue the program. The parole board ignores the fact that it 
is not the prisoner's fault that the MDOC has not provided the 
program in a manner that would allow the prisoner to complete it 
prior to being considered for parole.

(c) The prisoner's institutional conduct.

This section does not define exactly what institutional conduct 
the parole board may consider. For instance, must the parole board 
consider misconducts for which the prisoner has already been 
sanctioned? MCL 800.33(12); MSA 28.1403(12); MCL 800.34; MSA 
28.1404 provides for the punishment for prisoner misconducts 
through the disciplinary system, which moves the prisoner's parole 
eligibility date further away. Does the parole board then use that 
same misconduct as a basis for denial of parole? Or does the 
parole board consider the prison's school, work, assignment and 
program participation? Many Michigan prisoners do not read, write, 
and or speak English. The MDOC does not provide programs in any 
other language than English. Should these individuals be denied 
parole because they have not completed programs in a language they 
cannot understand? The statue makes no reference to this problem. 
And paroles are frequently denied to illiterate and non-English-
speaking prisoners based upon their failure to complete programs.

(d) The prisoner's prior criminal record.

As used in this subdivision, "prior criminal record" means the 
recorded criminal history of a prisoner, including all misdemeanor 
and felony convictions, probation violations, juvenile 
adjudications for acts that would have been crimes if committed by 
an adult, parole failures, and delayed sentences.

This section does not state for what purpose the parole board may 
use this information. This information was used by the sentencing 
court in setting the minimum sentence. Should the parole board 
then be able to use this information as a basis for denial of 
parole? Should the parole board second-guess the sentencing court 
judge, or set itself up as a reviewing tribunal for determining 
the wisdom of a minimum sentence in a given case? Or should this 
information be used to determine the conditions of parole? The 
Legislature has not set forth any guidance for use of this 
information.

(e) Other relevant factors as determined by the department, if not 
otherwise prohibited by law.

This section is clearly overbroad. It gives the parole board 
unfettered discretion to determine what factors they deem 
relevant, except for factors prohibited by law. None of the parole 
board members are attorneys and may not know all the laws 
surrounding the information that may not be used in considering 
whether or not to grant parole.

(3) In developing the parole guidelines, the department may 
consider both of the following factors: (a) The prisoner's 
statistical risk screening.

The prisoner's statistical risk screening is done upon entry to 
the MDOC Reception and Guidance Center. There are three 
prerequisites to a "very high" assault risk rating: an offense 
that "fits the description of robbery, sexual assault or murder"; 
"serious" institutional misconduct; and an arrest before the age 
of fifteen. Much of this information comes from the Pre Sentence 
Investigation report (PSI). When the prisoner was not actually 
convicted of robbery, criminal sexual conduct (CSC) or murder, the 
official PSI description of the offense is usually accepted. If, 
for example, the PSI states that a breaking and entering included 
an attempted sexual assault, that is frequently the version used -
- even if the defendant denied those allegations in his guilty 
plea and his personal statement in the PSI.

Although MDOC policy allows screeners to "use their best 
judgement" when the PSI is unclear, or has conflicting information 
that the probation department of the sentencing court cannot 
clarify, ambiguous information is usually construed against the 
prisoner. A prisoner has no way to lower the risk factors after 
that point. Even if a prisoner has served a 10 to 15 year 
sentence, there is no way for him to reduce a high risk 
designation received at the beginning of the sentence. See 
Michigan Prison Sentences: A Guide for Defense Attorneys, Sandra 
Bailiff Girad, 1996, p. 81.

(b) The prisoner's age.

How is the prisoner's age to be considered? Is it to say that a 
person who is 17 years old is more likely to commit a new crime 
than a 35 year old person and therefore, the 35 year old should be 
considered more likely for parole? Or should a 17 year old be the 
better candidate for parole?

Clearly, the legislature has given the parole board unstructured 
and unlimited discretion to determine whether a prisoner should be 
granted a parole, and to determine what criteria the board may use 
in making its determination. Therefore, the statute is 
unconstitutionally vague. ITAL Kotmar, Ltd v. Liguor Control Comm. 
END, supra; ITAL West Bloomfield Charter Tp. V. Karchon END, 
supra.

In ITAL West Bloomfield Twp. V. Karchon END, 309 Mich App. at 49, 
the Court of Appeals concluded that the ordinances were overbroad 
"in that they regulate conduct both within and outside areas 
designated as woodlands. An ordinance does not provide fair notice 
of proscribed conduct if it 'it forbids or requires the doing of 
an act in terms so vague that men of common intelligence must 
necessarily guess at its meaning and differ as to its 
application." (quoting ITAL Allison v. Southfield END, 172 Mich. 
App. 592, 596; 432 N.W.2d 369 (1998)).

The enabling statue, MCL 791.233e; MSA 28.303(6), granting the 
director of the MDOC rule-making authority, is so broad that it 
amounts to an unconstitutional delegation of power. The statute 
does not set limits on the exercise of discretion conferred on the 
parole board; neither does it sufficiently define these limits to 
avoid delegation of the legislative powers. Therefore, it is not 
as reasonably precise as the subject matter requires or permits. 
ITAL Dept of Natural Resources v. Seaman END, 396 Mich. 299, 308: 
240 N.W.2d 206 (1976), quoting ITAL Argo Oil Corp v. Atwood END, 
274 Mich. 47, 52; 264 N.W.2d 285 (1935).

"While no hard and fast rule exists for determining whether a 
given statute has provided sufficient standards, a number of 
guiding principles have evolved in Michigan jurisprudence to 
assist in making a determination." ITAL Seaman END, supra at 309, 
240 N.W.2d 206. Among these principles are:

(1) The act in question must be read as a whole; the provision in 
question should not be isolated but must be construed with 
reference to the entire act. ITAL Id. END, citing ITAL Argo Oil 
END, supra at 53, 264 N.W.2d 285.

(2) If possible, the statute must be construed in such a way as to 
" 'render it valid, not invalid' " and as vesting " 
'discretionary, not arbitrary authority.' " ITAL Seaman END, supra 
at 309, 240 N.W.2d quoting ITAL Argo Oil END supra at 53, 264 N.W. 
2d 285.

(3) The standard should be " 'as reasonably precise as the subject 
matter requires or permits.' " ITAL Seaman END, supra at 309, 240 
N.W.2d 206.

Under this analysis the statute fails. The MDOC's September, 1997 
analysis of the Michigan Parole Board since 1992 shows why the 
legislature's failure to provide adequate standards renders the 
statute "not as reasonably precise as the subject matter requires 
or permits." Former Director Kenneth L. McGinnis states that:

"The intent of the overhaul was to make Michigan's communities 
safer by making more criminals serve more time" and "Among the 
most important differences since the overhaul is a Parole Board 
that is much less willing to release criminals who complete their 
minimum sentences -- and much less willing to release criminals at 
all."

The MDOC's own statement shows that the Parole Board is using 
unfettered discretion in the decision-making process. A prisoner 
has no set criteria to follow to insure that he/she will be 
granted parole at the expiration of his/her minimum sentence. 
Therefore, the statute does not provide the proper guidelines for 
the decision making process of the parole board. It is not as 
reasonably precise as the subject matter requires or permits under 
ITAL Seaman END, supra. It does not provide fair notice of the 
conduct proscribed, and it confers on the parole board 
unstructured and unlimited discretion to determine whether a 
parole should be granted and is therefore constitutionally vague. 
ITAL Kotmar, Ltd. V. Luguor Control Comm. END, supra; ITAL West 
Bloomfield Charter Tp. v. Karchon END, supra.

MIM adds: This is an example of a very good article in terms of 
legal analysis and clarity -- this should be helpful to others 
dealing with challenges to Parole Board decisions. MIM reminds 
readers of MIM Notes that while we want to provide this forum for 
prisoners to help one another with their legal struggles, we must 
still discuss prisons in the context of our struggle to smash 
imperialism. This author is correct in his/her criticisms of the 
statute that guides the parole board in Michigan. Under 
imperialism, we do not want the prison authorities and parole 
boards to have unfettered discretion -- this article makes clear 
that there is no system of checks and balances on the powers of 
the parole board to arbitrarily deny parole. Under socialism, when 
there will still be prisons to deal with people who commit crimes 
against the people, the masses will have a real say in all kinds 
of prison decisions -- including conditions of confinement as well 
as length of sentence for a given crime. Most importantly, 
however, is the fact that under socialism there will be genuine 
attempts at reforming individuals as we are reforming society. See 
MIM Theory #11-Amerikan Prisons on Trial, and Allyn and Adele 
Rickett, Prisoners of Liberation, for more about the differences 
between prisons in Amerika and prisons in China under Mao.