2.5Appeals From and Objections to Parole Board Decisions1
“The Parole Board does not just determine whether to grant parole[;] it must also determine whether to deny parole.” Braddock v Parole Bd, ___ Mich App ___, ___ (2024). Under MCL 791.246 and MCL 791.234(8)(c),“both the decision to grant parole and to deny parole must be by majority vote.” Braddock, ___ Mich App at ___. A tie vote is not permitted; “once the process has commenced, it must terminate with a majority vote of the Board, be it favorable or unfavorable.” Id. at ___. In other words, “the Parole Board must re-vote until it reaches a majority decision.” Id. at ___.
Michigan prisoners cannot seek judicial review of the denial of parole by the parole board absent circumstances giving rise to a complaint for habeas corpus or a writ of mandamus to compel compliance with a statutory duty. Morales v Parole Bd, 260 Mich App 29, 39-42, 52 (2003).2
While the court has no role in granting parole, see MCL 791.234(11), it may be helpful to understand the process when reviewing an appeal or objection.
“[A] prisoner’s release on parole is discretionary with the parole board.” MCL 791.234(11). See also MCL 791.235(1). “There is no entitlement to parole.” Id. “‘A prisoner has no constitutionally protected or inherent right to parole, only a hope or expectation of it.’” People v Mack, 265 Mich App 122, 129 (2005), quoting Morales v Parole Bd, 260 Mich App 29, 48 (2003).
“The Legislature has entrusted the decision whether to grant . . . parole to the Parole Board.” In re Parole of Johnson, 219 Mich App 595, 596 (1996). See also MCL 791.234(7). The board must have “reasonable assurance, after consideration of all of the facts and circumstances, including the prisoner’s mental and social attitude, that the prisoner will not become a menace to society or to the public safety.” MCL 791.233(1)(a). The Department of Corrections (DOC) “shall promulgate rules under the administrative procedures act of 1969, . . . MCL 24.201 to [MCL] 24.328, that prescribe the parole guidelines.” MCL 791.233e(5). However, the parole board may depart from the guidelines3; in doing so, it must provide, in writing, substantial and compelling objective reasons for the departure. MCL 791.233e(6).4 In addition, “[t]he Board should consider a prisoner’s sentencing offense when determining whether to grant parole to a prisoner, but ‘the Board must also look to the prisoner’s rehabilitation and evolution throughout his or her incarceration.’” In re Parole of Spears, 325 Mich App 54, 60 (2018), quoting In re Elias, 294 Mich App 507, 544 (2011). However, the parole guidelines set forth in statute “‘form the backbone of the parole-decision process.’” Spears, 325 Mich App at 60 quoting Elias, 294 Mich App at 512.
To facilitate the decision-making process surrounding the granting of parole (in addition to other purposes), the DOC prepares and considers several reports, including the transition accountability plan (TAP), a phased plan that attempts to integrate a prisoner’s transition from prison to the community. Spears, 325 Mich App at 61. The Michigan Court of Appeals “has [not] set forth standards relative to a defendant’s TAP,” except to require that it, among other relevant documents, be considered by the Board when determining whether to grant parole. Id. at 66, citing In re Parole of Haeger, 294 Mich App 549 (2011). In Haeger, the Parole Board’s grant of parole was properly reversed in part because no TAP appeared in the record. Id. at 551-552. In Spears, the circuit court incorrectly determined that Haeger requires a TAP be “current or robust.” Spears, 325 Mich App at 64. “[R]ather, review [of the Board’s decision] should begin by determining whether the Board reviewed a TAP that was prepared for [the] defendant,” and if that has occurred, there is no basis for a circuit court to conclude “that the Board . . . failed to consider defendant’s readiness for release based on defendant’s suitable and realistic parole plan.” Id. at 64-65 (quotation marks and citation omitted). “Therefore, the [Spears] circuit court, by injecting its own criteria into defendant’s TAP, effectively substituted its judgment for that of the Board’s when it reversed the Board’s grant of parole[.]” Id. at 67-68.
“Once the Board enters an order granting parole, it has discretion to rescind that order for cause before the prisoner is released and after the Board conducts an interview with the prisoner.” In re Parole of Hill, 298 Mich App 404, 411 (2012). See also MCL 791.236(2). “After a prisoner is released on parole, the prisoner remains in the legal custody and control of the Department of Corrections and the Board retains discretion to revoke parole for cause and in accord with statutorily proscribed [sic] procedural guidelines.” Hill, 298 Mich App at 411. See also MCL 791.238; MCL 791.240a.5
There is no appeal of right from a parole board decision. MCR 7.118(B). Only the prosecutor of the county from which the prisoner was committed or a victim may apply for leave to appeal. MCR 7.118(D)(1)(a); MCR 7.103(B)(5); MCL 791.234(11). Generally, the prisoner will be the appellee; however, the parole board may move to intervene as an appellee. MCR 7.118(D)(1)(c).
MCR 7.118 governs appeals to the circuit court from the parole board. MCR 7.118(A). Unless provided otherwise in MCR 7.118, the rules set out in MCR 7.101—MCR 7.115 apply. MCR 7.118(A).6
1.Application for Leave to Appeal
a.Time Requirements
“An application for leave to appeal must be filed within 28 days after the parole board mails a notice of action granting parole and a copy of any written opinion to the prosecutor and the victim, if the victim requested notification under MCL 780.771.” MCR 7.118(D)(2).
“A late application for leave to appeal may be filed under MCR 7.105(G).” MCR 7.118(E).
b.Manner of Filing
“An application for leave must comply with MCR 7.105, must include statements of jurisdiction and venue,[7] and must be served on the parole board and the prisoner. If the victim seeks leave, the prosecutor must be served. If the prosecutor seeks leave, the victim must be served if the victim requested notification under MCL 780.771.” MCR 7.118(D)(3).8
c.Access to Reports or Guidelines
The prosecutor, the victim, and the prisoner are entitled, upon request, to receive applicable reports and parole guidelines. MCR 7.118(C).
d.Response
The prisoner must be notified, in a form approved by SCAO,9 that he or she may respond to the application for leave to appeal through counsel or in propria persona, and that, if indigent, he or she is entitled to appointment of counsel. MCR 7.118(D)(3)(b)(i).
An order of parole issued under MCL 791.236 must not be executed until 28 days after the notice of action has been mailed. MCR 7.118(F)(1). The prisoner must be notified, in a form approved by SCAO,10 that “if an order [of parole] is issued under MCL 791.236 before completion of appellate proceedings, a stay may be granted in the manner provided by MCR 7.108, except that no bond is required.” MCR 7.118(D)(3)(b)(ii).
A stay may also be granted in the manner provided by MCR 7.108, except that no bond is required, if an order [of parole] is issued under MCL 791.235 before completion of appellate proceedings. MCR 7.118(F)(2).
3.Decision to Grant Leave to Appeal
The circuit court must either make its determination whether to grant leave within 28 days after the application is filed, or enter an order to produce the prisoner for a show cause hearing to determine whether to release the prisoner on parole pending disposition of the appeal. MCR 7.118(G)(1)-(2).
4.Procedure After Granting Leave to Appeal
“If leave to appeal is granted, MCR 7.105(E)(4) [(generally governing the circuit court’s decision on an application for leave to appeal)] applies,” together with additional rules specifically governing the record and briefs in parole board appeals. MCR 7.118(H).11
a.Burden of Proof
“The appellant has the burden of establishing that the decision of the parole board was
(a) in violation of the Michigan Constitution, a statute, an administrative rule, or a written agency regulation that is exempted from promulgation pursuant to MCL 24.207, or
(b) a clear abuse of discretion.” MCR 7.118(H)(3).
b.Remand to the Parole Board
The circuit court, on its own motion or a party’s motion, may remand the matter to the parole board for an explanation of its decision. MCR 7.118(H)(4). “The parole board shall hear and decide the matter within 28 days of the date of the order, unless the board determines that an adjournment is necessary to obtain evidence or there is other good cause for an adjournment.” MCR 7.118(H)(4)(a). “The time for filing briefs on appeal under [MCR 7.118](H)(2) is tolled while the matter is pending on remand.” MCR 7.118(H)(4)(b).
5.Review of Parole Board’s Decision
Where a “prisoner’s parole-guidelines score [gives] him a high probability of parole, the Parole Board [is] required to grant parole absent substantial and compelling reasons for a departure.” In re Wilkins Parole, 506 Mich 937, 937 (2020).12 A circuit court errs “by ignoring this restriction on the Parole Board’s exercise of its discretion” when reversing the Parole Board’s decision if the record otherwise demonstrates that “the Parole Board’s decision to grant parole fell within the range of principled outcomes[.]” Id. (finding the circuit court “also impermissibly substituted its judgment for that of the Parole Board”).
“[E]ven if there are substantial and compelling reasons to deny parole, a grant of parole is not an automatic abuse of discretion.” In re Parole of McBrayer, ___ Mich ___, ___ (2023). In McBrayer, the Michigan Supreme Court held that “the lower courts failed to respect the Legislature’s grant of discretion to the board, improperly submitting their judgment for that of the board.” Id. at ___. “Although the Court of Appeals majority acknowledged that the Parole Board’s decisions are reviewed for an abuse of discretion, its analysis effectively reweighed the evidence without affording proper deference to the board. This contravened the scheme established by the Legislature.” Id. at __.
Under MCL 791.233e(6), “the Parole Board may depart from the guidelines and deny parole to a prisoner with a ‘high probability’ parole score when there are ‘substantial and compelling reasons’ to do so.” McBrayer, ___ Mich at ___. “[W]hen such reasons exist, the board may depart from the parole guidelines” but “is not required to do so because . . . discretion [vests] in the Parole Board.” Id. at ___ (cleaned up). “The mere existence of substantial and compelling reasons for departure is not sufficient for a reviewing court to conclude that the Parole Board abused its discretion by choosing not to depart from the guidelines.” Id. at ___ (noting the Court of Appeals analysis was incomplete because the majority only considered “whether there were substantial and compelling reasons for departure from the guidelines and ended its analysis there”).
First, “a reviewing court must consider whether there are substantial and compelling reasons to deny parole to a prisoner with a high-probability guidelines score.” McBrayer, ___ Mich at ___. “[I]f substantial and compelling reasons exist and the Parole Board nonetheless granted parole, the second question is whether the choice not to depart constituted a clear abuse of discretion.” Id. at ___. “[T]he Parole Board abuses its discretion when it chooses an outcome that is outside the range of reasonable and principled outcomes.” Id. at ___. “This standard entitles the Parole Board to great deference” and “reviewing courts must not substitute their own judgment for that of the board.” Id. at ___.
The McBrayer Court opined that “the majority simply concluded that, because there were substantial and compelling reasons for departure from the parole guidelines, the Parole Board had abused its discretion.” McBrayer, ___ Mich at ___ (although the “Court of Appeals identified legitimate factors weighing against parole,” “the Parole Board supported its decision with a significant amount of relevant evidence”). “Given the considerations favoring parole in this case, even when compared with those weighing against,” the Court concluded that “it was within the range of reasonable and principled outcomes for the board not to depart from the parole-guidelines recommendation[.]” Id. at ___.
6.Parole Board Responsibility After Reversal or Remand
“If a decision of the parole board is reversed or remanded, the board shall review the matter and take action consistent with the circuit court’s decision within 28 days.” MCR 7.118(J)(1).
“If the circuit court order requires the board to undertake further review of the file or to reevaluate its prior decision, the board shall provide the parties with an opportunity to be heard.” MCR 7.118(J)(2).
7.Costs
“The expense of preparing and serving the record on appeal may be taxed as costs to a nonprevailing appellant, except that expenses may not be taxed to an indigent party.” MCR 7.118(H)(1)(c).
8.Appeal from Circuit Court to Court of Appeals
“An appeal of a circuit court decision is by application for leave to appeal to the Court of Appeals under MCR 7.205, and the Court of Appeals shall expedite the matter.” MCR 7.118(I).
An appeal to the Court of Appeals does not affect the parole board’s jurisdiction to review the matter upon reversal or remand or to provide for a hearing as set out in MCR 7.118(J)(1)-(2). MCR 7.118(J)(3).
D.Objection to Parole Recommendation in Certain Cases
Before granting parole to a prisoner under MCL 791.234(13)-(17) (parole in cases involving certain drug offenses) or MCL 791.235(10) (medical parole), the parole board must provide notice to the prosecuting attorney in the county where the prisoner was convicted. MCL 791.234(18). At the same time, it must notify “any known victim or, in the case of a homicide, the victim’s immediate family” when it is considering medical parole under MCL 791.235(10). MCL 791.234(18).
Within 30 days of receiving this notice, “[t]he prosecuting attorney or victim or, in the case of a homicide, the victim’s immediate family, may object to the parole board’s decision to recommend parole by filing a motion in the circuit court in the county in which the prisoner was convicted[.]” MCL 791.234(19). A motion to object “must be heard by the sentencing judge or the judge’s successor in office.” Id. If the prosecutor is objecting, he or she “may seek an independent medical examination of the prisoner being considered for [medical] parole[.]” Id. “If an appeal is initiated under this subsection, a subsequent appeal under [MCL 791.234(11)] may not be initiated upon the granting of parole.” MCL 791.234(19).
At a hearing on an objection to the parole board’s recommendation, both of the following apply:
“(a) The prosecutor and the parole board may present evidence in support of or in opposition to the determination that a prisoner is medically frail, including the results of any independent medical examination.
(b) The sentencing judge or the judge’s successor shall determine whether the prisoner is eligible for parole as a result of being medically frail.” MCL 791.234(20).
The court’s decision “is binding on the parole board with respect to whether a prisoner must be considered medically frail or not.” MCL 791.234(21). However, the court’s decision “is subject to appeal by leave to the court of appeals granted to the department, the prosecuting attorney, or the victim or victim’s immediate family in the case of a homicide.” Id.
“Pursuing a request for written approval [from the sentencing judge or their successor] for early parole eligibility under MCL 769.12(4)(a) does not constitute an appeal of a decision by the Parole Board.” People v Grant, 329 Mich App 626, 636 (2019). “Therefore, a circuit court owes no deference to the Parole Board under the ‘clear abuse of discretion’ standard when deciding whether to approve eligibility for early parole.” Id. Additionally, “a court’s decision regarding eligibility for early parole does not implicate any concerns about the deprivation of a constitutional guarantee of life, liberty, or property without due process of law.” Id. at 637.
F.Appeal From Parole Revocation
“After a prisoner is released on parole, the prisoner’s parole order is subject to revocation at the discretion of the parole board for cause[.]” MCL 791.240a(1). Because a parole revocation “is not part of a criminal prosecution, . . . the full panoply of rights due a defendant in such a proceeding does not apply[.]” Morrisey v Brewer, 408 US 471, 480 (1972). If the Department of Corrections (DOC) fails to comply with the timelines for revocation proceedings, the proper remedy is a complaint for an order of mandamus. Jones v Dep’t of Corrections, 468 Mich 646, 658 (2003).
Chapter 6 of the Administrative Procedures Act (APA), MCL 24.301 to MCL 24.306, applies to judicial review of parole revocation hearings. Penn v Dep’t of Corrections, 100 Mich App 532, 540 (1980). A petition for review of a parole revocation decision must be filed in the circuit court within 60 days of the parole revocation. MCL 24.303—MCL 24.304. However, the APA is not the only avenue of judicial review available to an accused parolee. Triplett v Deputy Warden, 142 Mich App 774, 779 (1985). If an accused parolee fails to seek relief in the circuit court within the 60-day APA time limit, he or she may still file an action for habeas corpus. Id. See MCR 3.303 for information on filing for habeas corpus to inquire into the cause of detention.
1 See the Michigan Judicial Institute’s Michigan Parole Board Appeals Table.
2 The parole board’s decision to depart from the parole guidelines by denying parole to a prisoner who has a high probability of parole must state in writing substantial and compelling objective reasons for the departure. MCL 791.233e(6). Substantial and compelling objective reasons for departure from the parole guidelines are limited to the circumstances set forth in MCL 791.233e(7).
3 A departure may be in the form of denying parole to a prisoner who has a high probability of parole under the guidelines or granting parole to a prisoner who has a low probability of parole under the guidelines. See MCL 791.233e(6).
4 Effective December 12, 2018, 2018 PA 339 amended MCL 791.233e(6) to require that the reason for a departure be objective, in addition to substantial and compelling. However, the amendment applies “only to prisoners whose controlling offense was committed on or after [December 12, 2018.]” MCL 791.233e(13). See MCL 791.233e(7) for list of substantial and compelling objective reasons when denying parole to a prisoner who has a high probability of parole under the guidelines (not applicable to prisoners serving a life sentence). MCL 791.233e does not provide a similar list for departures involving low probability prisoners.
5 See Section 2.5(F) for information on appeals following the revocation of parole.
6 See Part A for discussion of MCR 7.101—MCR 7.115 as generally applicable to appeals to the circuit court. Note, however, that Part A does not include discussion of the rules that apply only to appeals from agencies.
7 See Section 2.1(C) and Section 2.1(F)(1) for information on jurisdiction and Section 2.1(D) for information on venue.
8 See MCR 7.118(D)(3)(a)-(c) for detailed rules regarding service on the parole board, the victim, the prosecutor, and the prisoner.
9 See SCAO Form CC 404.
10 See SCAO Form CC 404.
11 See MCR 7.118(H)(1) for rules governing the record on appeal from a parole board decision. See MCR 7.118(H)(2) for rules that, in addition to the general rules set out in MCR 7.111, govern briefs on appeal from a parole board decision.
12 See Section 2.5(B) for discussion of grounds for grant of parole.