Order Michigan Supreme Court 

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 for leave to appeal the July 19, 2007 order 

of the Court of Appeals is considered, and it is DENIED, because the defendant has 

failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). See 

People v Hill, 267 Mich App 345 (2005), lv den 474 Mich 1069 (2006). 

KELLY, J., dissents and states as follows: 

I would grant leave to appeal. In 1987, defendant pleaded guilty of second-degree 

murder and possession of a firearm during the commission of a felony. He was sentenced 

to life in prison with the possibility of parole for the murder conviction and a consecutive 

two-year term for the felony-firearm conviction. Nineteen years later, defendant filed a 

motion for relief from judgment. He argues that his plea was invalid because he made it 

under a misunderstanding of the consequences of a parolable life sentence. He also 

argues that he has a liberty interest in parole and that the current Michigan Parole Board’s 

“life means life” policy violates 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 implicates the 2007 decision of Judge Marianne O. Battani 

of the Federal District Court for the Eastern District of Michigan in Foster-Bey v 

Rubitschun.2

 Judge Battani held that changes made to Michigan’s parole law and policies 

1

 US Const, art I, § 10, cl 1. 

2 Foster-Bey v Rubitschun, unpublished opinion of the Federal District Court for the 

Eastern District of Michigan, issued October 23, 2007 (Docket No. 05-71318). 
 

 

 

2 

in 1992 and 1999 violate 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 imprisonment and every five years thereafter.5 

The 1992 changes increased the size of the parole board and permitted the victims of 

crimes to appeal from a grant of parole.6 

Under the 1999 changes, the requirement for an interview 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 the parole board elects not to provide a public hearing to a convict 

3

 The class of prisoners like defendant was stipulated to include: 

[a]ll parolable lifers in the custody of the Michigan Department of 

Corrections who committed crimes (for which they received a parolable life 

sentence) before October 1, 1992, and whose parole the “new” parole board 

has denied, passed over, expressed no interest in pursuing, or otherwise 

rejected or deferred. Excluded from this definition are so-called “drug 

lifers” who were convicted of distribution or possession of controlled 

substances, regardless of whether the crime was originally one subject to 

parolable life or one converted to parolable life at a later time. For 

purposes of this class definition, the “new” parole board refers to the board 

that came into existence pursuant to the 1992 statutory changes 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, that issue will be addressed when and 

if the parties raise it. [Id. at 3, quoting stipulation 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 punishment 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 increasing 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 which it is informed and then exercised. The idea 

of discretion is that it has the capacity, and the obligation, to change and 

adapt based on experience. New insights into the accuracy of predictions 

about the offense and the risk of recidivism consequent upon the offender’s 

release, along with a complex of other factors, will inform 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 board’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 serve life in prison.15 Moreover, there is evidence 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 contrary holding with regard to two subclasses of 

prisoners. The Sixth Circuit found the district court’s analysis unpersuasive because it 

10 Id. 

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

12 Id. at 250, quoting California Dep’t of Corrections 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 statistics not available in Shabazz. That evidence indicates that 

the implementation of the 1992 and 1999 changes to Michigan’s parole law and policies 

has resulted in longer periods of incarceration for parolable lifers.19 In her wellsupported opinion, Judge Battani concludes that the cumulative 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 Parole Board, the 

Board’s understanding of why the change occurred and how it was to 

exercise its discretion, its redefining of the eligibility procedure for 

nonmandatory lifers, and changes to the timing and intervals of the 

interview and review process, when considered in total have significantly 

disadvantaged the class and constitute a violation of the Ex Post Facto 

Clause. 

Judge Battani’s opinion raises significant concerns about the constitutionality of this 

state’s parole system for those sentenced to parolable life terms before 1992. The Court 

should grant leave to appeal to consider this jurisprudentially significant issue. 

CAVANAGH, J., joins the statement of KELLY, J. 

18 Id. at 914-915. 

19 Judge Battani explains the flaws in the analysis 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 Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

January 11, 2008 

Clerk