Citizens Alliance on Prisons and Public Spending (CAPPS)

Legislative Updates: Smart and Safe Parole Reform And Judicial Veto Bill

Smart and Safe parole reform (HB 4138) passed the House in June and is pending in the Senate Government Operations Committee. The bill is expected to move in the lame duck session, which ends December 3, 2016. We will be sending updates to supporters when we need calls and emails sent in support of this reform.

HB 4138:  Making the Criminal Justice System Work As Intended

HB 4138 defines “substantial and compelling reasons” for the parole board to deny release to low-risk prisoners who have served their minimum sentences.  Among the many reasons to support it are increased fairness; objectivity and consistency in administrative decision-making; and corrections’ cost-savings through population reduction.

Another important reason to support the bill is that HB 4138 makes the criminal justice system work like it is supposed to.  Every segment of the system has its own role to play in setting the punishment for crime.  These roles are designed to be complementary but not overlapping.  The parole board’s use of subjective, boilerplate reasons to continue the incarceration of people who score low risk on the parole guidelines undermines the fundamental division of responsibility within the system.

The Legislature sets the boundaries of punishment.  It establishes the maximum punishment for each type of crime.  It also enacts sentencing guidelines for judges to follow in selecting the appropriate minimum sentence in individual cases.  Finally, in 1992, it enacted parole guidelines for the parole board to follow in deciding at what point between the minimum and maximum the person should be released.  The Legislature determined that prisoners who have good institutional records and are at low risk for reoffending should be paroled when they have served their minimums unless there are substantial and compelling reasons not to release them.

The prosecution affects the punishment by selecting the charge in the first instance, by deciding whether to also charge defendants with prior felony convictions as habitual offenders, by negotiating guilty pleas in more than 90 percent of all cases, and by its advocacy at the sentencing hearing.  The prosecution can choose to appeal to a higher court if it feels the sentence is too low.

The sentencing court calculates the application of the sentencing guidelines to the individual defendant.  It considers the facts of the offense, the defendant’s prior criminal record, and the arguments about aggravating and mitigating factors made by the parties.  The court then selects the minimum sentence it believes to be appropriate for punishment.

The minimum sentence sets a prisoner’s earliest release date.  The earliest release date is the time the judge and the parties believe the defendant will actually serve unless he or she accumulates numerous misconducts in prison or otherwise appears to be at risk for reoffending.  When a judge imposes a sentence of 2-10 or 1-14 or 5-20 years, no one intends for the defendant to be incarcerated to the statutory maximum.  That is why plea negotiations, sentencing guidelines and advocacy at sentencing hearings are all aimed at determining the minimum.

The parole board’s role is to assess the prisoner’s current risk for reoffending at the point when he or she has served the minimum sentence and become eligible for parole.   Its role is not to effectively resentence someone because a board member, the media or the public feels the minimum sentence wasn’t long enough.  Yet the data show that hundreds of prisoners each year who score low risk on the parole guidelines are denied release based on subjective conclusions used to justify extending the person's punishment.

Parole board resentencing undermines the roles of the legislative and judicial branches of government.  The Legislature developed both sentencing and parole guidelines to promote objective decision-making and reduce disparity in the treatment of similar people at both the front and back ends of the punishment process.  These two sets of guidelines are designed to work in tandem.  There is no point in trying to guide the discretion of judges in setting minimum sentences if the parole board can override judicial decisions at will and without consequence.

Judges, in turn, work hard to set fair, individualized punishment.  If they err, their decisions can be overturned by an appellate court. They are entitled to rely on the expectation that:

  1. The parole board will act within its area of expertise by reviewing the person’s institutional record and current risk assessments.
  2. The parole board will not supplant the judicial role by adding years of incarceration beyond the minimum sentence when there is no public safety reason to do so.

There is no reason for anyone to want the parole board to have unfettered discretion in low-risk cases.

  • The definitions of substantial and compelling reasons in HB 4138 were negotiated in a multi-stakeholder workgroup and address a number of specific concerns the prosecutors raised.  These definitions reserve discretion to the parole board to identify and act on any unique individual risk indicators not captured by the guidelines.
  • Prosecutors have already had multiple opportunities for input on the defendant’s punishment.
  • Anyone, including judges, prosecutors and victims, can provide relevant information for the parole board’s consideration.
  • Prosecutors and victims retain the right to appeal board decisions with which they disagree.
  • The bill was made prospective in response to county and sheriffs’ concerns about the number of additional parolees who will return to their homes.

HB 4138 is a balanced bill that respects the roles of all segments of the criminal justice system.  It recognizes that determining the appropriate punishment for crime depends on multiple perspectives and multiple points in time. Above all it implements the longstanding legislative intent to make sentencing and parole decisions objective, even-handed and risk-based so that no one spends more time in prison than is necessary for fair punishment and public safety.

by Barbara Levine
CAPPS Associate Director for
Research and Policy

Judicial Veto Bill Moves Forward

CAPPS is very happy to report that the judicial veto reform bill (HB 5273) passed the Senate Judiciary Committee on September 6, 2016, by a bipartisan 4-0 vote. CAPPS has worked for many years to advance this reform. The bill now goes to the full Senate for consideration.

HB 5273, sponsored by Rep. Dave Pagel (R-Oronoko Twp.), eliminates the authority of successor sentencing judges to veto grants of parole to lifers.

The bill 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 Michigan Judges Association and the American Friends Service Committee’s Michigan Criminal Justice Program are among the organizations supporting the bill.

First National Survey Of Crime Victims

CAPPS works closely with the Alliance for Safety and Justice (ASJ), a national organization. CAPPS and ASJ are working together to better address the needs of crime survivors, especially those in communities hardest hit by crime and violence.

ASJ conducted an in depth survey on the views of crime survivors called Crime Survivors Speak. It is the first national report on victims’ views on safety and justice.  The survey found that victims of crime support rehabilitation and prefer investments in crime prevention and treatment to more spending on prisons and jails.

Alliance For Safety Releases Video Highlighting Misplaced Spending On Incarceration Over Education

ASJ premiered What You Invest In Grows, to highlight the nation's misplaced spending priorities and to re-imagine how we could invest the $80 billion spent each year on incarceration. Over the last three decades, Michigan increased spending on corrections more than five times as much as it did on public education according to the US Department of Education. Click here to watch the video What We Invest In Grows or visit .

For more information about these bills, go to or to

If you would like to join CAPPS’s efforts, please contact Seema Singh at (517) 482-77757 or Laura Sager, executive director, at or select “Join” on the CAPPS website home page in the upper right corner.