Citizens Alliance on Prisons and Public Spending (CAPPS)

Why the Legislature Must Define “Substantial and Compelling Reasons” for Parole Denials

In 1992, the Legislature required the Michigan Department of Corrections to develop guidelines to govern the exercise of the parole board’s very broad discretion in deciding whether to release prisoners who have served their minimum sentences.  The guidelines assess the prisoner’s risk of reoffending by scoring such factors as the prisoner’s age, institutional record, time served, prior record, offense characteristics and program participation.  To score high probability of release on the parole guidelines, the prisoner must pose no more than a five percent risk of committing an assaultive offense; that is, s/he must be at very low risk for reoffending.

MCL 791.233e(6) says: 

The parole board may depart from the parole guidelines by denying parole to a prisoner who has a high probability of parole as determined under the parole guidelines or by granting parole to a prisoner who has a low probability of parole as determined under the parole guidelines.  A departure under this subsection shall be for substantial and compelling reasons stated in writing.

But the statute does not say what “substantial and compelling” means.    As a result, individual parole board members use whatever reasons they see fit.  Frequent among them are such subjective assessments as:

  • Lacks adequate insight into behavior
  • Lacks empathy
  • Shows insufficient remorse
  • Inadequate assumption of responsibility
  • Doesn’t have sufficient tools to reduce risk

Decisions to deny parole to prisoners who score high probability of release are so common that about 1,900 people who had finished their minimum sentences and scored high probability of parole were still in prison in 2015.

“Substantial and compelling reasons” is a legal term of art that appears in multiple statutes.  What the term actually means in practice is typically defined by the courts.

  • In 1987, the legislature made an exception to the then-mandatory minimum drug sentences by allowing judges to go below the statutory minimum if they found on the record that there were substantial and compelling reasons to do so.  The Michigan Supreme Court said in People v Fields, 448 Mich 58 (1995):
  • … these words “constitute strong language.”  If judges could deviate from the statutory minimum for just any reason they could defeat the overarching intent of the statute.  Reasons justifying departure should “keenly” or “irresistibly” grab our attention and be “of considerable worth.”  They should exist “only in exceptional cases.”
  • Substantial and compelling reasons must also be “objective and verifiable.”  Subjective factors like whether the defendant has expressed remorse or has a desire to help others allow for far too much discretion and make appellate review too difficult.
  • In 1998, the legislature enacted sentencing guidelines that were applicable to all felonies.  The guidelines establish ranges within judges must set the minimum sentence unless there are substantial and compelling reasons to be harsher or more lenient.
  • In People v Babcock, 469 Mich 247 (2003) the Michigan Supreme Court noted that “substantial and compelling reasons” had “acquired a peculiar and appropriate meaning in the law.”  Therefore, in the sentencing guidelines context the Court said, as it had in the context of mandatory drug sentences, the reasons must be objective and verifiable, must keenly or irresistibly grab our attention and must be of considerable worth.
  • The guidelines themselves score points for numerous factors related to the offense and the offender’s prior record.  The statute says that substantial and compelling reasons cannot duplicate these factors unless the guidelines did not give them weight appropriate to the particular case.

No body of law has evolved regarding substantial and compelling reasons in the parole guidelines context because the Legislature repealed the right of prisoners to appeal parole denials in 1998.   Only prosecutors and victims can appeal parole board decisions.  Thus few cases that would test the meaning of the statutory term ever reach the appellate courts.

It is apparent that the reasons often used to deny parole are not objective and verifiable.  Boilerplate conclusions that are used over and over can hardly be said to keenly or irresistibly grab one’s attention or be of considerable worth.  And clearly they do not exist only in exceptional cases.  Rather, the large number of low risk prisoners who are being denied release indicates that the board is routinely defeating the overarching intent of the Legislature that people who do not pose a risk to the community be paroled when they first become eligible.

While the Court of Appeals, in In re: Parole of Elias, 294 Mich App 507 (2011) has noted there is somewhat more room for subjective decisionmaking in the parole process, the Babcock/Fields definition of “substantial and compelling reasons” remains key.  Since the opportunity for appellate courts to demonstrate how that definition should apply in various cases is so limited, the Legislature needs to fill the gap.  HB 4138 amends the guidelines statute to list specific reasons that would justify a decision not to parole someone who scores low risk.  These include:

  • a substantial history of institutional misconduct,
  • objective and verified evidence of substantial harm to a victim not previously considered,
  • threats to harm another person if released,
  • post-sentencing conduct not already scored in the parole guidelines that demonstrate the person would pose a high risk to public safety
  • DNA evidence linking the person to an unsolved crime.

HB 4138 is simply a means for the Legislature to do what the courts cannot:  implement the intent of the parole guidelines statute by consistently defining a critical legal term of art.

Quick Talking Points on HB 4138:

Michigan spends nearly $2 billion a year on corrections. Our parole board keeps many people behind bars beyond the time they are first eligible for parole, regardless of their risk to public safety. As a result, we are spending tens of millions of dollars that could be invested in economic revitalization and public safety priorities.

House Bill 4138, under consideration in the Senate this fall, will safely reduce the need for 3,200 prison beds in just five years.

The problem: Currently, the law requires the board to release people to parole supervision who score low risk on the Michigan Department of Correction’s parole guidelines, unless there are “substantial and compelling” reasons to deny parole. However, this term is not defined in statute, and some parole board members rely on very subjective rationale for denying parole.

The solution: HB 4138 simply defines “substantial and compelling” reasons and provides consistent, objective criteria to guide parole board decision-making.

Eligibility: HB 4138 is a modest reform that only applies to low risk offenders and who have served the sentence imposed by the court. The bill only applies to those who are sentenced after the bill is enacted.

The impact on public safety: The Pew Center for the States found that Michigan had the longest average prison length of stay of any of the 35 states it studied in 2009. Inconsistent parole decisions have helped to drive up the population, thus corrections spending. However, national and state research shows that simply keeping people incarcerated longer does not increase public safety.

Under HB 4138, the board still retains its authority to deny parole whenever the evidence shows it is in the interest of public safety.

Legislation:  Get Ready to Support Criminal Justice Reform in the Coming Months!

The Michigan House of Representatives has advanced three Smart and Safe parole reforms, all by overwhelming bipartisan majorities.  To become law, this legislation must be passed by the end of the legislative session in December 2016.

The reforms, called the "House criminal justice reform package," will be acted on this Fall.

Click links to bill summaries, language and testimony or visit the CAPPS website at www.capps-mi.org for this and other legislation:

CAPPS will be providing ongoing information about the progress of these bills – and what you can do to help -- once the legislature reconvenes after Labor Day.

Senate or Proos Package of Criminal Justice Reforms

In June, the Senate voted out the "Proos package" of criminal justice reforms, (see http://2015 capps.capps-mi.org/2016/06/18-bill-criminal-justice-r eform-package-introduced-in-the-senate-on-may-3-he arings-underway/). CAPPS will be supporting many of these bills and making recommendations for amendments. These bills are currently pending in the House Criminal Justice Committee.

Did You Know?

Over the last three decades, Michigan increased spending on corrections more than five times as much as it did on public education. — US Department of Education, 2016

Reading for Reform

            10,000 fewer Michigan prisoners: Strategies to reach the goal, (see http://2015capps.capps-mi.org/wp-content/uploads/2015/06/CAPPS-report -10000-fewer-prisoners.pdf),  CAPPS

            Crime Survivors Speak, (see http://2015capps. capps-mi.org/2016/07/asj-first-national-report-on-vict ims-views-on-safety-and-justice/), the first national report on crime survivors’ views on safety and justice.

            You can sign up for CAPPS newsletters and updates on the website under "Join" or email Judi Miller, jmmiller.capps@capps.org.

by Barbara Levine
CAPPS Research and Policy Director and Laura Sager, Executive Director
Citizens Alliance on Prisons and Public Spending

The Citizens Alliance on Prisons and Public Spending (CAPPS) is a non-profit public policy organization. We are concerned about Michigan’s excessive use of punitive strategies rather than preventive ones to deal with crime and its impact on our quality of life. CAPPS advocates re-examining those policies and shifting our resources to services that prevent crime, rehabilitate offenders and address the needs of all our citizens in a cost-effective manner. For more information about CAPPS’s research, recommendations, or to get involved, please go to the CAPPS website at www.capps-mi.org or email Laura Sager, executive director, at capps@capps-mi.org.

If you are interested in helping with CAPPS’s public education and outreach efforts, please email Laura Sager at lmsager@capps-mi.org.