Citizens Alliance on Prisons and Public Spending (CAPPS)

House Bill 5273, which removes the power of successor sentencing judges to veto lifer paroles, passed out of the House Criminal Justice Committee on April 19, 2016 on a vote of 8 to 0.   The bill was sponsored by Rep. Dave Pagel and co-sponsored by Rep. Martin Howrylak.

Currently, when the Michigan Parole Board decides to set the case of a parolable lifer for a public hearing, it must notify the sentencing court and the prosecutor.  If the original sentencing judge or that judge’s successor in office objects in writing within 30 days, the board loses jurisdiction to grant parole and the hearing is canceled. In the last 10 years, of 318 lifer cases in which the board scheduled hearings, objections were filed in 61.  All but six were submitted by successor judges.

HB 5273 will still allow the sentencing judge to veto parole as long as he or she is still sitting in the court where the prisoner was convicted. The successor judge would still be notified and able to express an opinion but that opinion would no longer be controlling.

The committee took testimony on April 12th and 19th   and received numerous written comments, all in support of the bill.  A particularly critical supporter is the Michigan Judges Association, which recognizes that the veto authority actually burdens successor judges with a responsibility they are not well-positioned to exercise.

Those who testified included:

SADO Assistant Defender Jacqueline Ouvry, testifying in her capacity as Chair of the Prisons and Corrections Section of the State Bar, addressed the policy implications of the bill.  She stressed that a successor judge has no personal knowledge of the case, no obligation to conduct a hearing or otherwise gather information and is not even required to give a reason for objecting.  By comparison, the parole board engages in an extensive examination of the lifer’s history and questions the lifer extensively.  The public hearing process is specifically designed to permit input from all interested parties, including victims, judges and prosecutors as well as those who support release.  Successor vetoes prevent experienced board members from making well-reasoned decisions after careful examination of all the evidence.

U-M Clinical Law Prof. Paul Reingold, who was lead counsel on the Foster-Bey lifer class action, stressed that for a parole system to be successful it needs to be fair, safe and economical.  Successor judge vetoes undermine all three goals.  Aging lifers who present no threat to public safety are denied parole without the full consideration of their history and circumstances that the lifer parole process was designed to afford.  Successor vetoes take away the fairness and consistency of the process.

Reingold offered two examples.  One case involved co-defendants who had been sentenced by different judges.  The more culpable defendant received a 25-40 year term and, after earning substantial good time, was released in 12.5 years.  The other defendant received parolable life, making him eligible for release after serving 10 years.  When he had served more than 35 years and the board was finally ready to proceed to public hearing, Reingold urged the successor judge not to object.  The judge responded by asking “what was in it for him.”

In the second case, the successor judge proceeded to object without even recognizing that he had been the prosecutor on the case.  When contacted, he agreed to recuse himself.  But he failed to do so and when the case reached his desk a second time, he reflexively objected again.  It took a third try to get the case before a different successor who chose not to veto parole.

Barbara Levine, CAPPS associate director, placed the lifer parole process in historical context.  In the 1960s, 70s and 80s, judges imposed parolable life terms in the belief that the defendant would actually be released when he or she became eligible in 10 years or within a few years thereafter.  Parolable life terms and long indeterminate sentences, which could be substantially reduced by many years of good time credit, were viewed as essentially interchangeable.  On average, parolable lifers are indistinguishable from people who received indeterminate sentences for similar crimes and were released years ago.  Because parole board practices became harsher over time, hundreds of lifers have now served 25, 35, even 45 years.

The lifers who have been released and those who have been vetoed are also indistinguishable.  They were all the subject of extensive consideration by the full 10-member board before their cases were set for public hearing.  Most judges in most circuits choose to leave the ultimate decision to the board’s expertise.  The individual decisions of some successors make the process arbitrary and leave the fate of the lifers to the luck of the draw.  Oakland, for instance, which had 28 cases to consider, had objections in four, while Saginaw, which had 20 cases total, had objections in seven.  And Genesee, which had 11 cases, had objections in none. Most interesting is Wayne County, which had 16 vetoes in 137 possible cases.  Eleven of those were from a single judge. [See Lifer Veto Fact Sheet following this article.]

Shirletha Norton-Gaskin testified on behalf of her husband, who received a parolable life sentence in 1990 and worked hard to earn his release.  The family had been looking forward to a public hearing where he could show his maturation and the family could show its support. She described how devastating it was to receive a veto from a successor judge who did not even know her husband and did not want to see how much he had changed.

Kelly Casper testified on behalf of parolable lifer David Bunker, who has served 50 years for a murder he committed when he was 18.   Bunker’s extraordinary institutional record includes earning three associate’s degrees, a BA and multiple vocational certifications, excellent psychological evaluations and extensive program participation.  He has received only two misconduct citations ever, the last being in 1977, and assisted staff during riots.  Bunker was initially convicted of first-degree murder and the board was willing to proceed toward a possible commutation in 1993.  However, that same year Bunker won a retrial at which he was convicted of second-degree murder.  Re-sentenced to parolable life, Bunker never got interest from the parole board again until 2009, at which point his possible release was prevented by the objection of a successor judge.

Bruce Timmons, retired House Republican policy staff member, urged the Committee to pass HB 5273 but to then return and complete the job by eliminating the authority of sentencing judges to veto as well.  Timmons noted that the veto authority effectively makes the judge a second parole board and creates separation of powers problems between the executive and judiciary in practice, if not in law.

Others supporting the bill included the Michigan Catholic Conference, Criminal Defense Attorneys of Michigan, National Association of Social Workers – Michigan Chapter, Warden Carol Howes (retired), Citizens for Prison Reform and the US Justice Action Network.  There was no testimony in opposition.

The bill will now proceed to the House floor, where the prospects for passage are considered good.  If enacted, the bill would be given immediate effect.

by 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 or email Laura Sager, executive director, at

If you are interested in helping with CAPPS’s public education and outreach efforts, please email Laura Sager at