January 11, 2006, Introduced by Senators SCHAUER, CHERRY, BRATER, PRUSI, SWITALSKI, BASHAM and CLARK-COLEMAN and referred to the Committee on Judiciary.
A bill to amend 1953 PA 232, entitled
"Corrections code of 1953,"
by amending sections 20g, 29, 34, 63, 63a, 65, 69a, and 70 (MCL
791.220g, 791.229, 791.234, 791.263, 791.263a, 791.265, 791.269a,
and 791.270), section 20g as amended by 2000 PA 211, sections 29,
63, 63a, 65, 69a, and 70 as amended by 1998 PA 512, and section 34
as amended by 2004 PA 218.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 20g. (1) The department may establish and operate a youth
correctional facility which shall house only prisoners committed to
the jurisdiction of the department who are 19 years of age or less.
If
the department establishes or contracts with a private vendor
for
the operation of a youth correctional facility, following
intake
processing in a department operated facility reception
center, the department shall house all male prisoners who are 16
years of age or less at the youth correctional facility unless the
department determines that the prisoner should be housed at a
different facility for reasons of security, safety, or because of
the prisoner's specialized physical or mental health care needs.
(2) Except as provided in subsection (3), a prisoner who is 16
years of age or less and housed at a youth correctional facility
shall only be placed in a general population housing unit with
prisoners who are 16 years of age or less.
(3) A prisoner who becomes 17 years of age while being housed
at a youth correctional facility and who has a satisfactory prison
record may remain in a general population housing unit for no more
than 1 year with prisoners who are 16 years of age or less.
(4) Except as provided in subsection (3), a prisoner who is 16
years of age or less and housed at a youth correctional facility
shall not be allowed to be in the proximity of a prisoner who is 17
years of age or more without the presence and direct supervision of
custody personnel in the immediate vicinity.
(5)
The department may establish and operate the youth
correctional
facility or may contract on behalf of the state with a
private
vendor for the construction or operation, or both, of the
youth
correctional facility. If the department contracts with a
private
vendor to construct, rehabilitate, develop, renovate, or
operate
any existing or anticipated facility pursuant to this
section,
the department shall require a written certification from
the
private vendor regarding all of the following:
(a)
If practicable to efficiently and effectively complete the
project,
the private vendor shall follow a competitive bid process
for
the construction, rehabilitation, development, or renovation of
the
facility, and this process shall be open to all Michigan
residents
and firms. The private vendor shall not discriminate
against
any contractor on the basis of its affiliation or
nonaffiliation
with any collective bargaining organization.
(b)
The private vendor shall make a good faith effort to
employ,
if qualified, Michigan residents at the facility.
(c)
The private vendor shall make a good faith effort to
employ
or contract with Michigan residents and firms to construct,
rehabilitate,
develop, or renovate the facility.
(6)
If the department contracts with a private vendor for the
operation
of the youth correctional facility, the department shall
require
by contract that the personnel employed by the private
vendor
in the operation of the facility be certified as
correctional
officers to the same extent as would be required if
those
personnel were employed in a correctional facility operated
by
the department. The department also shall require by contract
that
the private vendor meet requirements specified by the
department
regarding security, protection of the public,
inspections
by the department, programming, liability and
insurance,
conditions of confinement, educational services required
under
subsection (11), and any other issues the department
considers
necessary for the operation of the youth correctional
facility.
The department shall also require that the contract
include
provisions to protect the public's interest if the private
vendor
defaults on the contract. Before finalizing a contract with
a
private vendor for the construction or operation of the youth
correctional
facility, the department shall submit the proposed
contract
to the standing committees of the senate and the house of
representatives
having jurisdiction of corrections issues, the
corrections
subcommittees of the standing committees on
appropriations
of the senate and the house of representatives, and,
with
regard to proposed construction contracts, the joint committee
on
capital outlay. A contract between the department and a private
vendor
for the construction or operation of the youth correctional
facility
shall be contingent upon appropriation of the required
funding.
If the department contracts with a private vendor under
this
section, the selection of that private vendor shall be by
open,
competitive bid.
(5) (7)
The department shall not site a youth correctional
facility under this section in a city, village, or township unless
the local legislative body of that city, village, or township
adopts a resolution approving the location.
(8)
A private vendor operating a youth correctional facility
under
a contract under this section shall not do any of the
following,
unless directed to do so by the department policy:
(a)
Calculate inmate release and parole eligibility dates.
(b)
Award good time or disciplinary credits, or impose
disciplinary
time.
(c)
Approve inmates for extensions of limits of confinement.
(6) (9)
The youth correctional facility shall be open to
visits during all business hours, and during nonbusiness hours
unless an emergency prevents it, by any elected state senator or
state representative.
(7) (10)
Once each year, the department shall report on the
operation of the facility. Copies of the report shall be submitted
to the chairpersons of the house and senate committees responsible
for legislation on corrections or judicial issues, and to the clerk
of the house of representatives and the secretary of the senate.
(8) (11)
Regardless of whether the department itself operates
the
youth correctional facility or contracts with a private vendor
to
operate the youth correctional facility, all All of the
following educational services shall be provided for juvenile
prisoners housed at the youth correctional facility who have not
earned a high school diploma or received a general education
certificate (GED):
(a)
The department or private vendor shall
require that a
prisoner whose academic achievement level is not sufficient to
allow the prisoner to participate effectively in a program leading
to the attainment of a GED certificate participate in classes that
will prepare him or her to participate effectively in the GED
program, and shall provide those classes in the facility.
(b)
The department or private vendor shall
require that a
prisoner who successfully completes classes described in
subdivision (a), or whose academic achievement level is otherwise
sufficient, participate in classes leading to the attainment of a
GED certificate, and shall provide those classes.
(9) (12)
Neither the The department
nor the private vendor
shall not seek to have the youth correctional facility authorized
as a public school academy under the revised school code, 1976 PA
451, MCL 380.1 to 380.1852.
(13)
A private vendor that operates the youth correctional
facility
under a contract with the department shall provide written
notice
of its intention to discontinue its operation of the
facility.
This subsection does not authorize or limit liability for
a
breach or default of contract. If the reason for the
discontinuance
is that the private vendor intends not to renew the
contract,
the notice shall be delivered to the director of the
department
at least 1 year before the contract expiration date. If
the
discontinuance is for any other reason, the notice shall be
delivered
to the director of the department at least 6 months
before
the date on which the private vendor will discontinue its
operation
of the facility. This subsection does not authorize or
limit
liability for a breach or default of contract.
Sec. 29. All records and reports of investigations made by a
probation officer, and all case histories of probationers shall be
privileged or confidential communications not open to public
inspection. Judges and probation officers shall have access to the
records, reports, and case histories. The probation officer, the
assistant director of probation, or the assistant director's
representative shall permit the attorney general, the auditor
general, and law enforcement agencies to have access to the
records,
reports, and case histories. and shall permit designated
representatives
of a private vendor that operates a youth
correctional
facility under section 20g to have access to the
records,
reports, and case histories pertaining to prisoners
assigned
to the youth correctional facility. The relation of
confidence between the probation officer and probationer or
defendant under investigation shall remain inviolate.
Sec. 34. (1) Except as provided in section 34a, a prisoner
sentenced to an indeterminate sentence and confined in a state
correctional facility with a minimum in terms of years other than a
prisoner subject to disciplinary time is subject to the
jurisdiction of the parole board when the prisoner has served a
period of time equal to the minimum sentence imposed by the court
for the crime of which he or she was convicted, less good time and
disciplinary credits, if applicable.
(2) Except as provided in section 34a, a prisoner subject to
disciplinary time sentenced to an indeterminate sentence and
confined in a state correctional facility with a minimum in terms
of years is subject to the jurisdiction of the parole board when
the prisoner has served a period of time equal to the minimum
sentence imposed by the court for the crime of which he or she was
convicted.
(3) If a prisoner other than a prisoner subject to
disciplinary time is sentenced for consecutive terms, whether
received at the same time or at any time during the life of the
original sentence, the parole board has jurisdiction over the
prisoner for purposes of parole when the prisoner has served the
total time of the added minimum terms, less the good time and
disciplinary credits allowed by statute. The maximum terms of the
sentences shall be added to compute the new maximum term under this
subsection, and discharge shall be issued only after the total of
the maximum sentences has been served less good time and
disciplinary credits, unless the prisoner is paroled and discharged
upon satisfactory completion of the parole.
(4) If a prisoner subject to disciplinary time is sentenced
for consecutive terms, whether received at the same time or at any
time during the life of the original sentence, the parole board has
jurisdiction over the prisoner for purposes of parole when the
prisoner has served the total time of the added minimum terms. The
maximum terms of the sentences shall be added to compute the new
maximum term under this subsection, and discharge shall be issued
only after the total of the maximum sentences has been served,
unless the prisoner is paroled and discharged upon satisfactory
completion of the parole.
(5) If a prisoner other than a prisoner subject to
disciplinary time has 1 or more consecutive terms remaining to
serve in addition to the term he or she is serving, the parole
board may terminate the sentence the prisoner is presently serving
at any time after the minimum term of the sentence has been served.
(6) A prisoner under sentence for life, other than a prisoner
sentenced for life for murder in the first degree or sentenced for
life for a violation of section 16(5) or 18(7) or chapter XXXIII of
the Michigan penal code, 1931 PA 328, MCL 750.16, 750.18, and
750.200 to 750.212a, or section 17764(7) of the public health code,
1978 PA 368, MCL 333.17764, who has served 10 calendar years of the
sentence in the case of a prisoner sentenced for a crime committed
before October 1, 1992, or, except as provided in subsection (10),
who has served 20 calendar years of the sentence in the case of a
prisoner sentenced to imprisonment for life for violating or
conspiring to violate section 7401(2)(a)(i) of the public health
code, 1978 PA 368, MCL 333.7401, who has another conviction for a
serious crime, or, except as provided in subsection (10), who has
served 17-1/2 calendar years of the sentence in the case of a
prisoner sentenced to imprisonment for life for violating or
conspiring to violate section 7401(2)(a)(i) of the public health
code, 1978 PA 368, MCL 333.7401, who does not have another
conviction for a serious crime, or who has served 15 calendar years
of the sentence in the case of a prisoner sentenced for a crime
committed on or after October 1, 1992, is subject to the
jurisdiction of the parole board and may be released on parole by
the parole board, subject to the following conditions:
(a) At the conclusion of 10 calendar years of the prisoner's
sentence and thereafter as determined by the parole board until the
prisoner is paroled, discharged, or deceased, and in accordance
with the procedures described in subsection (7), 1 member of the
parole board shall interview the prisoner. The interview schedule
prescribed in this subdivision applies to all prisoners to whom
this subsection is applicable, regardless of the date on which they
were sentenced.
(b) In addition to the interview schedule prescribed in
subdivision (a), the parole board shall review the prisoner's file
at the conclusion of 15 calendar years of the prisoner's sentence
and every 5 years thereafter until the prisoner is paroled,
discharged, or deceased. A prisoner whose file is to be reviewed
under this subdivision shall be notified of the upcoming file
review at least 30 days before the file review takes place and
shall be allowed to submit written statements or documentary
evidence for the parole board's consideration in conducting the
file review.
(c) A decision to grant or deny parole to a prisoner so
sentenced shall not be made until after a public hearing held in
the manner prescribed for pardons and commutations in sections 44
and 45. Notice of the public hearing shall be given to the
sentencing judge, or the judge's successor in office, and parole
shall not be granted if the sentencing judge, or the judge's
successor in office, files written objections to the granting of
the parole within 30 days of receipt of the notice of hearing. The
written objections shall be made part of the prisoner's file.
(d) A parole granted under this subsection shall be for a
period of not less than 4 years and subject to the usual rules
pertaining to paroles granted by the parole board. A parole ordered
under this subsection is not valid until the transcript of the
record is filed with the attorney general whose certification of
receipt of the transcript shall be returnable to the office of the
parole board within 5 days. Except for medical records protected
under section 2157 of the revised judicature act of 1961, 1961 PA
236, MCL 600.2157, the file of a prisoner granted a parole under
this subsection is a public record.
(e) A parole shall not be granted under this subsection in the
case of a prisoner who is otherwise prohibited by law from parole
consideration. In such cases the interview procedures in section 44
shall be followed.
(7) An interview conducted under subsection (6)(a) is subject
to both of the following requirements:
(a) The prisoner shall be given written notice, not less than
30 days before the interview date, stating that the interview will
be conducted.
(b) The prisoner may be represented at the interview by an
individual of his or her choice. The representative shall not be
another prisoner. A prisoner is not entitled to appointed counsel
at public expense. The prisoner or representative may present
relevant evidence in favor of holding a public hearing as described
in subsection (6)(b).
(8) In determining whether a prisoner convicted of violating
or conspiring to violate section 7401(2)(a)(i) of the public health
code, 1978 PA 368, MCL 333.7401, and sentenced to imprisonment for
life before October 1, 1998 is to be released on parole, the parole
board shall consider all of the following:
(a) Whether the violation was part of a continuing series of
violations of section 7401 or 7403 of the public health code, 1978
PA 368, MCL 333.7401 and 333.7403, by that individual.
(b) Whether the violation was committed by the individual in
concert with 5 or more other individuals.
(c) Any of the following:
(i) Whether the individual was a principal administrator,
organizer, or leader of an entity that the individual knew or had
reason to know was organized, in whole or in part, to commit
violations of section 7401 or 7403 of the public health code, 1978
PA 368, MCL 333.7401 and 333.7403, and whether the violation for
which the individual was convicted was committed to further the
interests of that entity.
(ii) Whether the individual was a principal administrator,
organizer, or leader of an entity that the individual knew or had
reason to know committed violations of section 7401 or 7403 of the
public health code, 1978 PA 368, MCL 333.7401 and 333.7403, and
whether the violation for which the individual was convicted was
committed to further the interests of that entity.
(iii) Whether the violation was committed in a drug-free school
zone.
(iv) Whether the violation involved the delivery of a
controlled substance to an individual less than 17 years of age or
possession with intent to deliver a controlled substance to an
individual less than 17 years of age.
(9) Except as provided in section 34a, a prisoner's release on
parole is discretionary with the parole board. The action of the
parole board in granting a parole is appealable by the prosecutor
of the county from which the prisoner was committed or the victim
of the crime for which the prisoner was convicted. The appeal shall
be to the circuit court in the county from which the prisoner was
committed, by leave of the court.
(10) If the sentencing judge, or his or her successor in
office, determines on the record that a prisoner described in
subsection (6) sentenced to imprisonment for life for violating or
conspiring to violate section 7401(2)(a)(i) of the public health
code, 1978 PA 368, MCL 333.7401, has cooperated with law
enforcement, the prisoner is subject to the jurisdiction of the
parole board and may be released on parole as provided in
subsection (6), 2-1/2 years earlier than the time otherwise
indicated in subsection (6). The prisoner is considered to have
cooperated with law enforcement if the court determines on the
record that the prisoner had no relevant or useful information to
provide. The court shall not make a determination that the prisoner
failed or refused to cooperate with law enforcement on grounds that
the defendant exercised his or her constitutional right to trial by
jury. If the court determines at sentencing that the defendant
cooperated with law enforcement, the court shall include its
determination in the judgment of sentence.
(11) An individual convicted of violating or conspiring to
violate section 7401(2)(a)(ii) or 7403(2)(a)(ii) of the public health
code, 1978 PA 368, MCL 333.7401 and 333.7403, before March 1, 2003
is eligible for parole after serving the minimum of each sentence
imposed for that violation or 10 years of each sentence imposed for
that violation, whichever is less.
(12) An individual convicted of violating or conspiring to
violate section 7401(2)(a)(iii) or 7403(2)(a)(iii) of the public health
code, 1978 PA 368, MCL 333.7401 and 333.7403, before March 1, 2003
is eligible for parole after serving the minimum of each sentence
imposed for that violation or 5 years of each sentence imposed for
that violation, whichever is less.
(13) An individual convicted of violating or conspiring to
violate section 7401(2)(a)(iv) or 7403(2)(a)(iv) of the public health
code, 1978 PA 368, MCL 333.7401 and 333.7403, before March 1, 2003
who is sentenced to a term of imprisonment that is consecutive to a
term of imprisonment imposed for any other violation of section
7401(2)(a)(i) to (iv) or section 7403(2)(a)(i) to (iv) is eligible for
parole after serving 1/2 of the minimum sentence imposed for each
violation of section 7401(2)(a)(iv) or 7403(2)(a)(iv). This
subsection does not apply if the sentence was imposed for a
conviction for a new offense committed while the individual is on
probation or parole.
(14) The parole board shall provide notice to the prosecuting
attorney of the county in which the individual was convicted before
granting parole to the individual under subsection (11), (12), or
(13).
(15) As used in this section:
(a) "Serious crime" means violating or conspiring to violate
article 7 of the public health code, 1978 PA 368, MCL 333.7101 to
333.7545, that is punishable by imprisonment for more than 4 years,
or an offense against a person in violation of section 83, 84, 86,
87, 88, 89, 316, 317, 321, 349, 349a, 350, 397, 520b, 520c, 520d,
520g, 529, 529a, or 530 of the Michigan penal code, 1931 PA 328,
MCL 750.83, 750.84, 750.86, 750.87, 750.88, 750.89, 750.316,
750.317, 750.321, 750.349, 750.349a, 750.350, 750.397, 750.520b,
750.520c, 750.520d, 750.520g, 750.529, 750.529a, and 750.530.
(b) "State correctional facility" means a facility that houses
prisoners committed to the jurisdiction of the department, and
includes a youth correctional facility operated under section 20g.
by
the department or a private vendor.
Sec.
63. (1) The wardens of the correctional facilities of
this state shall be appointed by the director of corrections and
shall be within the state civil service. The assistant director in
charge of the bureau of correctional facilities shall, subject to
the approval of the director, appoint personnel within the bureau
as may be necessary. Members of the staff and employees of each
correctional facility shall be appointed by the warden subject to
the approval of the director.
(2)
As used in this section, "correctional facility" does not
include
a youth correctional facility authorized under section 20g
if
that facility is operated by a private vendor.
Sec. 63a. (1) A person employed by the department of
corrections in a correctional facility who is injured as a result
of an assault by a prisoner housed in the correctional facility or
injured during a riot shall receive his or her full wages by the
department of corrections until worker's compensation benefits
begin and then shall receive in addition to worker's compensation
benefits a supplement from the department which together with the
worker's compensation benefits shall equal but not exceed the
weekly net wage of the employee at the time of the injury. This
supplement shall only apply while the person is on the department's
payroll and is receiving worker's compensation benefits. Fringe
benefits normally received by an employee shall be in effect during
the time the employee receives the supplement provided by this
section from the department.
(2)
Subsection (1) also applies to a person who is employed by
the
department of corrections who, while performing his or her
duties
in a youth correctional facility, is injured as a result of
an
assault by a prisoner housed in the youth correctional facility
or
is injured during a riot in the youth correctional facility.
However,
subsection (1) does not apply to any person employed by,
or
retained under contract by, a private vendor that operates a
youth
correctional facility.
(2) (3)
For purposes of this section, :
(a)
"Correctional "correctional facility" means a facility
that houses prisoners committed to the jurisdiction of the
department, including a community corrections center.
(b)
"Youth correctional facility" means a facility authorized
under
section 20g.
Sec. 65. (1) Under rules promulgated by the director of the
department, the assistant director in charge of the bureau of
correctional facilities, except as otherwise provided in this
section, may cause the transfer or re-transfer of a prisoner from a
correctional facility to which committed to any other correctional
facility, or temporarily to a state institution for medical or
surgical treatment. In effecting a transfer, the assistant director
of the bureau of correctional facilities may utilize the services
of an executive or employee within the department and of a law
enforcement officer of the state.
(2) A prisoner who is subject to disciplinary time and is
committed to the jurisdiction of the department shall be confined
in a secure correctional facility for the duration of his or her
minimum sentence, except for periods when the prisoner is away from
the secure correctional facility while being supervised by an
employee
of the department or by an employee of a private vendor
that
operates a youth correctional facility under section 20g for
1 of the following purposes:
(a) Visiting a critically ill relative.
(b) Attending the funeral of a relative.
(c) Obtaining medical services not otherwise available at the
secure correctional facility.
(d) Participating in a work detail.
(3) As used in this section, "offender" means a citizen of the
United States or a foreign country who has been convicted of a
crime and been given a sentence in a country other than the country
of which he or she is a citizen. If a treaty is in effect between
the United States and a foreign country, which provides for the
transfer of offenders from the jurisdiction of 1 of the countries
to the jurisdiction of the country of which the offender is a
citizen, and if the offender requests the transfer, the governor of
this state or a person designated by the governor may give the
approval of this state to a transfer of an offender, if the
conditions of the treaty are satisfied.
(4) Not less than 45 days before approval of a transfer
pursuant to subsection (3) from this state to another country, the
governor, or the governor's designee, shall notify the sentencing
judge and the prosecuting attorney of the county having original
jurisdiction, or their successors in office, of the request for
transfer. The notification shall indicate any name changes of the
offender subsequent to sentencing. Within 20 days after receiving
such notification, the judge or prosecutor may send to the
governor, or the governor's designee, information about the
criminal action against the offender or objections to the transfer.
Objections to the transfer shall not preclude approval of the
transfer.
(5) As used in this section, "secure correctional facility"
means a facility that houses prisoners under the jurisdiction of
the department according to the following requirements:
(a) The facility is enclosed by a locked fence or wall that is
designed to prevent prisoners from leaving the enclosed premises
and that is patrolled by correctional officers.
(b) Prisoners in the facility are restricted to the area
inside the fence or wall.
(c) Prisoners are under guard by correctional officers 7 days
per week, 24 hours per day.
Sec. 69a. (1) A visitor to a state correctional facility shall
not be subjected to a pat down search unless every person
performing or assisting in performing the pat down search is of the
same sex as the person being searched. If the necessary personnel
are not readily available, a visitor at his or her option may sign
a waiver provided by the department of corrections, waiving the
provisions of this subsection.
(2)
As used in this section, :
(a)
"Pat "pat down search" means a search of a person in
which the person conducting the search touches the body or
clothing, or both, of the person being searched to detect the
presence of concealed objects.
(b)
"State correctional facility" includes a youth
correctional
facility operated under section 20g by the department
or
a private vendor.
Sec. 70. (1) A correctional facility may monitor telephone
communications over telephones available for use by prisoners in
the correctional facility if all of the following conditions are
met:
(a) The director promulgates rules under which the monitoring
is to be conducted, and the monitoring is conducted in accordance
with those rules. The rules shall include provisions for minimizing
the intrusiveness of the monitoring and shall prescribe a procedure
by which a prisoner may make telephone calls to his or her
attorney, and any federal, state, or local public official if
requested by that public official, that are not monitored.
(b) The monitoring is routinely conducted for the purpose of
preserving the security and orderly management of the correctional
facility, interdicting drugs and other contraband, and protecting
the
public, and is performed by employees of the department. or,
in
the case of a youth correctional facility operated by a private
vendor
under section 20g, is conducted by employees of the private
vendor.
(c) Notices are prominently posted on or near each telephone
subject to monitoring informing users of the telephone that
communications over the telephone may be monitored.
(d) In addition to the posting of notices under subdivision
(c), the prisoners in the correctional facility are given
reasonable notice of the rules promulgated under subdivision (a).
(e) Each party to the conversation is notified by voice that
the conversation is being monitored.
(2) A correctional facility shall disclose information
obtained pursuant to this section regarding a crime or attempted
crime to any law enforcement agency having jurisdiction over that
crime or attempted crime.
(3) Evidence obtained pursuant to this section regarding a
crime or attempted crime may be considered as evidence in a
criminal prosecution for that crime or attempted crime.
(4)
As used in this section, :
(a)
"Correctional facility" includes a youth correctional
facility
operated under section 20g by the department or a private
vendor.
(b)
"Monitor" "monitor"
means to listen to or record, or
both.