The United States Supreme Court split badly the last time the question was before them about whether an offender could assert the Fifth Amendment privilege of self-incrimination without penalty at a parole interview. The deciding vote was Justice O’Connor who has since left the Court.
Ninth Circuit Invalidates Supervised Release Condition Barring Association With Defendant's Own Children
Those with individuals with an average probability of parole had no statutory preference for or against a parole. Those individuals who had a high and low probabilities of parole either had a statutory presumption in favor of or against a parole. The legislature copied the language for parole standards from our sentencing guidelines and stated that departures from the guidelines should only be for “substantial and compelling” reasons. Case law interpreting the sentencing guidelines said that this was a high standard and imposed a requirement that “substantial and compelling” had to be objectively verifiable.
On its face, this would seem that Michigan had created a liberty interest in our parole scheme. Ordinarily there is no right to a parole which is protected by the due process clause to the United States Constitution. The United States Supreme Court in Greenholtz v Nebraska Penal Complex found that a Nebraska scheme which found that a Nebraska law provided that a parole should be granted unless certain objective factors were present created a liberty interest. Michigan’s law facially seemed to match this criteria, but Michigan Courts had constantly interpreted the law to the contrary. On September 20, 2011 in Crump v Lafler the Sixth Circuit appeared to drive a stake through the heart of the argument. The Court stated that historically both federal courts and Michigan courts have rejected the stricter interpretation of MIchigan law and concluded that Michigan’s scheme only created a “hope” of parole.
Judge Cole wrote a nice dissent arguing to the contrary. HIs approach matches what the Legislature intended, but the ruling may be a lone voice in the wind. Presumably the Petitioner will be seeking en band rehearing and/or certiorari. Stay tuned.
It is unclear what other policy changes are lurking under this change, but this could mean that the current administration is deemphasizing community reintegration as part of its corrections strategy. The extra five members were added to the Board could keep up with its increased workload. The downsizing in staff could mean a corresponding downsizing in the amount of paroles and clemencies.
Update: I just found an article on this order by Paul Eagan of the Detroit News. His article makes a couple of points. First, it quotes Governor Snyder saying that “we need to let the professionals in the Corrections Department determine whether it’s appropriate to release prisoners.” This could mean that Snyder is intending to be more deferential to his Corrections Director’s policies. That Director still needs to be named. Second, it could be a SOP to prosecutors who complained that Governor Granholm’s accelerated process was too accelerated. Mr. Eagan ran a similar article yesterday, but it seems to have similar content.
Yesterday’s Grand Rapids Press stated that Governor Snyder was actually doing this with the intent to do de-politicize the process. It cited to a commitment by the Snyder Administration to continue to “right size” Michigan prisons. Their article cited to a National Council of State Legislature’s expert who stated that Michigan was holding prisoners too long and that that prisoners should be presumptively entitled to parole after serving 120% of their sentence.
Last month, I commented on New York Governor Cuomo’s decision to right size New York prisons and the fighting he was facing from their unions and politicians. For those who are interested, here is a link to the Governor’s Press release. It doesn’t appear to add anything new. Stay tuned.
The Ninth Circuit found that California’s statute created a liberty interest in a parole. The Court found that this liberty interest conveyed only very basic protections: (a) the ability of the prisoner to appear and present arguments for a parole; (b) to have notice of the evidence against him/her; (c) the right to inspect this evidence (subject to limitations), and (c) the right to a statement of reasons against him/her.
The Court dropped a hint that it might be willing to reconsider the federal law on the subject about whether state law can even create a liberty interest in favor of parole. The Court said: “the Ninth Circuit held that California law creates a liberty interest in parole, see 606 F. 3d, at 1213. While we have no need to review that holding here, it is a reasonable application of our cases.” The Court, then, however noted that the four pieces of the due process outlined above “should have been the beginning and the end of the federal habeas courts’ inquiry into whether Cooke and Clay received due process.”
Most ominously, the Court declared: “The short of the matter is that the responsibility for assuring that the constitutionally adequate procedures governing California’s parole system are properly applied rests with California courts,and is no part of the Ninth Circuit’s business.”
This week’s runner up in journalism about prisons goes to the Toronto Globe and Mail who ran a great article on the mentally ill in prison.
The Great Recession Has Forced a New Exploration of Rehabilitation Instead of Retribution in Sentencing
The Detroit Free Press has started a series of comprehensive articles examining the changes in Michigan’s parole system. The Free Press cites a 90% success rate with the new intensive parole program, but asks whether a 10% error rate is acceptable.
The Post-Conviction Justice Project at USC Law recently prevailed in a defining case for the California parole system for long-time client Sandra Davis-Lawrence The students argued and the California Supreme Court agreed -- that a life-term prisoner is entitled to be granted parole once the prisoner no longer poses a danger to the community. The court rejected the governor’s reversal of the parole commission’s grant of parole based solely on the circumstances of Sandra Davis-Lawrence’s 1971 commitment offense (first-degree murder), holding that the reversal violated her due process rights. The 4 to 3 ruling provides meaningful judicial review of parole decisions by the Board of Parole Hearings and the governor, and could affect nearly 1,000 parole cases now on appeal. Lawyers on both sides said it was the first time in recent history that the state’s highest court has ruled in favor of a prisoner in a parole case.