Michigan Supreme Court 

# Order
Lansing, Michigan
January 11, 2008 Clifford W. Taylor, Chief Justice 134743 Michael F. Cavanagh Elizabeth A. Weaver PEOPLE OF THE STATE OF MICHIGAN, Marilyn Kelly Plaintiff-Appellee, Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman, v SC: 134743 Justices COA: 278158 Wayne CC: 87-004399-01 ALEX DAMON SCOTT, Defendant-Appellant.

________________ _______________ __________/

On order of the Court, the application fo r leave to appeal th e July 19, 2007 order of the Court of Appeals is considered, a nd it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief unde r MCR 6.508( D). See People v Hill , 267 Mich App 345 (2005), lv den 474 Mich 1069 (2006).

K ELLY , J., dissents and states as follows:

I would grant leave to app eal. In 1987, defendant pl eaded guilty of second-degree murder and possession of a firearm during th e commission of a felony. He was sentenced to life in prison with the possi bility of parole fo r the murder convicti on and a c onsecutive two-year term for the felony-fi rearm conviction. Ni neteen years later, defendant filed a motion for relief from judg ment. He argues that his plea was invalid because he made it under a misunderstanding of th e consequences of a parolabl e life sentence. He also argues that he has a liberty interest in parole and that the current Mi chigan Parole Board’s “life means life” policy viol ates the Ex Post Facto Clause of the United States Constitution. 1 The trial court denied the motion, and the Court of Appeals denied defendant’s application for leave to appeal.

Defendant’s argument impli cates the 2007 decision of Judge Marianne O. Battani of the Federal District Court for th e Eastern District of Michigan in Foster-Bey v Rubitschun. 2 Judge Battani held that changes made to Michigan’s paro le law and policies

1 US Const, art I, § 10, cl 1.

2 Foster-Bey v Rubitschun, unpublished opinion of the Fe deral District Court for the Eastern District of Michigan, issued October 23, 2007 (Doc ket No. 05-71318).2

in 1992 and 1999 viol ate the Ex Post Facto Clause of the United States Constitution when retrospectively applied to prisoners like defendant. 3

The 1992 changes included a statutory reduction in the frequency of parole interviews for lifers. 4 Previously, interviews were required in the fourth year of imprisonment and every two years thereafter. The schedule was changed to require the initial interview only after 10 years of im prisonment and every five years thereafter. 5 The 1992 changes increas ed the size of the parole board and permitted the victims of crimes to appeal from a grant of parole. 6

Under the 1999 changes, th e requirement for an intervie w every fifth year after the initial 10-year period was eliminated. 7 A file or paper review was deemed sufficient. 8 The 1999 changes also included a limitation on appeals of parole decisions to state courts. Appeals were allowed only by the prosecutor or the victim. 9 Finally, under the 1999 changes, when th e parole board elects not to prov ide a public hearing to a convict

3 The class of prisoners like defenda nt was stipulated to include: [a]ll parolable lifers in the custo dy of the Michigan Department of Corrections who committed crimes (for wh ich they received a parolable life sentence) before October 1, 1992, and wh ose parole the “n ew” parole board has denied, passed over, expressed no interest in pursuing, or otherwise rejected or deferred. Ex cluded from this defi nition are so-called “drug lifers” who were convicted of distri bution or possessi on of controlled substances, regardless of whether the cri me was originally one subject to parolable life or one conv erted to parolable life at a later time. For purposes of this class d efinition, the “new” parole board refers to the board that came into existence pursuant to th e 1992 statutory ch anges in parole, and that gradually took over from the old board in the period from c. 1992 to 1994. As before, if further refinement of the class definition is needed, including the creation of sub-classes, th at issue will be addressed when and if the parties raise it. [ Id . at 3, quoting stipula tion and order of class certification.]

4 See 1992 PA 181.

5 Foster-Bey, supra at 6-7.

6 Id . at 7.

7 See 1999 PA 191.

8 Foster-Bey, supra at 7.

9 Id

.3

serving a life sentence, it is not considered a “decision” of the board. This exempts the board from the statutory requirement to provide written reasons for the “denial.” 10

Retroactive changes in a law governing the parole of prisoners may violate the Ex Post Facto Clause if they increase the puni shment for a crime after its commission. 11 To determine if a violation has occurred, courts must determine if the changes have created ‘“a sufficient risk of increasi ng the measure of punishment attached to the covered crimes.”’ 12 Parole decisions in Michigan are discretionary. 13 In Garner

, 14 the United States Supreme Court explained that

where parole is concerned discretion, by its very definition, is subject to changes in the manner in wh ich it is informed and th en exercised. The idea of discretion is that it has the capacity, and the obligation, to change and adapt based on experience. New insi ghts into the accuracy of predictions about the offense an d the risk of recidivism c onsequent upon the offender’s release, along with a comple x of other factors, will in form parole decisions. However, given the 1992 and 1999 changes to Michigan’s parole law and policies, the parole board appears to have effectively abdicated exercise of the discretion bestowed on it by statute. The parole bo ard’s apparent abdication of its discretionary authority is arguably exemplified by its admission that it believes the imposition of a life sentence means a prisoner will s erve life in prison. 15 Moreover, there is ev idence that is neither attenuated nor speculative that prisoners like defendant serve a longer sentence as a result of the parole board’s new “ life means life” policy. There is also evidence that the changes have resulted in a decreased parole rate. 16

In Shabazz v Gabry

, 17 the Sixth Circuit Court of Appeals held that the 1992 changes to Michigan’s parole system did not violate the Ex Post Facto Clause. In doing so, the court rejected the district court’s cont rary holding with regard to two subclasses of prisoners. The Sixth Circuit fou nd the district court’s analys is unpersuasive because it

10 Id

.

11 Garner v Jones , 529 US 244, 249-250 (2000).

12 Id . at 250, quoting California Dep’t of Co rrections v Morales , 514 US 499, 509 (1995).

13 MCL 791.233(1)(a); MCL 791.234(11).

14 Garner

, supra at 253.

15 Foster-Bey

, supra at 20.

16 Id. at 34-42.

17 Shabazz v Gabry, 123 F3d 909 (1997)._______________________________________ __ 4

rested on anecdotal observations and personal speculation about the risk of increased punishment. 18

In Foster-Bey , Judge Battani carefully evaluated substantial evidence, including deposition testimony and st atistics not available in Shabazz . That evidence indicates that the implementation of the 1992 and 1999 changes to Michig an’s parole law and policies has resulted in longer periods of incarceration for parolable lifers. 19 In her well

supported opinion, Judge Battani conc ludes that the cumulativ e effect of the 1992 and 1999 changes violated the constitutional rights of a class of prisoners of which defendant is a member. She held: 20

The change in the make-up of the Michigan P arole Board, the Board’s understanding of why the change occu rred and how it was to exercise its discretion, its redefinin g of the eligibil ity procedure for nonmandatory lifers, and changes to the timing and in tervals of the interview and review process, when co nsidered in total have significantly disadvantaged the class and constitute a violation of the Ex Post Facto Clause. Judge Battani’s opinion raises significant c oncerns about the cons titutionality of this state’s parole system for thos e sentenced to paro lable life terms befo re 1992. The Court should grant leave to appeal to consider this jurisp rudentially significant issue.

C AVANAGH , J., joins the statement of K ELLY , J.

18 Id . at 914-915.

19 Judge Battani explains the flaws in the analys is used by the Court of Appeals in People v Hill , 267 Mich App 345 (2005). Foster-Bey

, supra at 36-37.

20 Id. at 42.

s0108 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.
January 11, 2008
Clerk