2 PROPOSED ADMINISTRATIVE RULES

 

 

ORR # 2003-012 DEPARTMENT OF CORRECTIONS

GENERAL RULES

 

Filed with the Secretary of State on

These rules take effect 7 days after filing with the Secretary of State

 

(By authority conferred on the director of the department of corrections by section 6 of 1953 PA 232, MCL 791.206)

 

R 791.4410 of the Michigan Administrative Code is amended as follows:

 

R 791.4410 Community status; eligibility classification and placement criteria; procedures.

Rule 410. (1) A prisoner is eligible for consideration The administrator of the office of field programs may classify a prisoner to for community status when there is reasonable assurance that she or he will not become a menace to society or to the public safety as demonstrated by meeting under R 791.4401 only if the prisoner meets all of the following criteria:

(a)    Has a classification of security level I that is not due to a waiver.

(b)     Is not currently serving a sentence of imprisonment for prison escape, has not been found guilty of  the major misconduct of escape or attempted escape during a sentence for which the prisoner is still serving, and has not been found guilty of escape or attempted escape in the past 5 years.

(ce) Is not currently serving a sentence of imprisonment for any sexual crime specified by the provisions of section 2a of Act No. 175 of the Public Acts of 1927, as amended, being §MCL 769.2a of the Michigan Compiled Laws.

(d) Has not been convicted of an offense specified in the Sex Offenders Registration Act, 1994 PA 295, MCL 28.721, even if convicted before the effective date of that act.

(ec) If returned for violating a condition of parole, is within 8 months of the next parole action date. Has  not been found guilty of parole violation, within 1 year of the date of application.

(fd) Is not designated as a very high assaultive risk.

(hg) Has a good institutional had satisfactory adjustment under department supervision, including while incarcerated, that indicates a willingness to conform to the rules of the program.

(j) Has not been previously reclassified from community status due to substance abuse violations without having been discharged or paroled on that sentence.

(k)   Has not been given a special designation by the department that permanently excludes participation placement on in community status programs. A denial of a community program application shall not be considered permanent, and a notice of special designation is not required, if a prisoner’s application is

 

 

denied and the prisoner is allowed to reapply within 3 months of the date of denial. Denial of  reapplication for community placement shall be considered permanent and a notice of special designation shall be given. These special designations are as follows:

(i) Will not honor trust, which is defined as either of the following:

(A)An inability or unwillingness to accept supervision as demonstrated by a pattern of major misconduct violations within 1 year of the date of application.

(B)Having absconded from probation, parole, or community supervision within 5 years of the date of  application.

(A)  Predatory, compulsive, or assaultive sexual behavior in the background of the prisoner.

(B)  A history of 2 or more incidents involving assaultive or violent behavior.

(C)    A current conviction for a felony, the description of which indicates there was an act by any participant in the crime that resulted in the death of a victim.

(C)A psychological disturbance within 1 year of the date of consideration, including any of the  following:

(1) Attempted suicide.

(2) Hospitalization or institutionalization for treatment or control of mental illness.

(3) Any mental condition that is diagnosed by a licensed physician, psychiatrist, or psychologist as  psychotic or mentally incapacitating.

(iiiv) Professional criminal, which is defined as involvement in an ongoing criminal activity as a major source of livelihood or having substantial resources or income where legitimate activity or employment is not capable of producing such resources or income.

(iv)    Drug trafficker, which is defined as any of the following:

(A)   A person with a current conviction, including probation, for an offense or conspiracy or attempt to commit an offense as set forth in the provisions of article 7 of Act No. 368 of the Public Acts of 1978, as  amended, being §in violation of MCL 333.7101 et seq. of the Michigan Compiled Laws, the description of which indicates that any of the following were involved, that is, were related to the offense through time, place, or circumstances:

(1)   Seven grams or more of any substance that contains heroin or cocaine, or both.

(2)   One pound or more of marijuana or hashish, or both.

(B)   A person who local law enforcement officials (police or prosecutor) confirm, on the basis of reliable evidence, is considered by them to be a significant trafficker in controlled substances in the community.

(C)   A person with a current conviction, including probation, for delivery or possession, or conspiracy or attempt to deliver or possess, controlled substances beyond personal use and limited sale to support the prisoner’s own addiction.

(vi) Undermine public confidence in program, which is defined as documented objection to community placement from a public official, unusual notoriety surrounding the current offense, or having served little time in relation to the length of the sentence imposed.

(l)    Is not serving within 180 days of the expiration of the minimum sentence if serving for any of the following crimes of violence, violent or assaultive crimes, including or attempts, or conspiracyies involving crimes of violence or assaultive or solicitation to commit the crime:

(i)     MCL 257.625(4) or (5) Person under the influence of intoxicating liquor or controlled substance; driving on highways or other areas; violations; causing death or injury to others.

 

 

(ii)    MCL 333.5210 Knowledge of AIDS or HIV infection; sexual penetration.

(iii)    MCL 750.72 Burning dwelling house

(iv)    MCL 750.81 Assault and assault and battery; domestic assault

(v)    MCL 750.81a Assault and infliction of serious injury

(vi)    MCL 750.81c Threats, assaults, and batteries against family independence agency employees.

(vii)     MCL 750.82 Felonious assault.

(viii)     MCL 750.83 Assault with intent to commit murder.

(xiv)   MCL 750.84 Assault with intent to do great bodily harm less than murder.

(xv)   MCL 750.86 Assault with intent to maim.

(vxi) MCL 750.87 Assault with intent to commit felony not otherwise punished.  (vxii) MCL 750.88 Assault with intent to rob and steal; unarmed.

(xv)   MCL 750.110a Home invasion in the first degree.

(xvi)   MCL 750.136b Child abuse

(xvii)   MCL 750.136a Torturing of children; penalty.

(xviii)   MCL 750.157b Solicitation of murder

(xixi) MCL 750.197c Jail or place of confinement; assault of employee or custodian, or break and escape.

(xxiii)   MCL 750.204 Sending explosives with intent to injure persons.

(xxiv)   MCL 750.205 Placing explosives with intent to destroy; no resulting damage.

(xxv)         MCL 750.206 Placing explosives with intent to destroy; causing damage to property.  (xvxiii) MCL 750.207 Placing explosives with intent to destroy; causing injury to any person. (xxivii) MCL 750.208 Placing explosives; aiding and abetting with intent to destroy.

(xxv)   MCL 750.209 Placing offensive or injurious substance or compound by real or personal property with intent to cause physical injury.

(xxvi)    MCL 750.209a Possession of explosive substance or device in public with intent to terrorize, frighten, intimidate, etc.

(xxix) MCL 750.211a Device designed to explode upon impact, upon application of heat, or device highly incendiary; possession with intent to use unlawfully; evidence.

(xxxiiiv) MCL 750.234c Intentional discharge of firearm at emergency or law enforcement vehicle.

(xxxiv) MCL 750.316 First degree murder; penalty.

(xxxviiix) MCL 750.325 Negligent homicide; manslaughter where due to operation of motor vehicle.

(xxxix) MCL 750.327 Death due to explosives.

(xlxxi) MCL 750.328 Death due to explosives; placed with intent to destroy building or object. (xlixxii) MCL 750.329 Death; firearm pointed intentionally but without malice.

(xliixxiii) MCL 750.349 Kidnapping.

(xliiixxiv) MCL 750.349a Prisoner taking another as a hostage. (xxxliv) MCL 750.350 Kidnapping; child under 14.

 

 

(xxxlvi) MCL 750.377b Malicious destruction of property; property of police or fire department.  (xxxlvii) MCL 750.397 Mayhem.

(xxxlviiix) MCL 750.411i Aggravated stalking.

(xil) MCL 750.479 Resisting or obstructing officer in discharge of duty where there is physical harm or threat of physical harm.

(xlii) MCL 750.506a Assaults while lawfully imprisoned or detained.  (xliii) MCL 750.517 Entering train for robbing by means of intimidation.  (xliiiv) MCL 750.529 Armed robbery; aggravated assault.

(liv) MCL 529a Carjacking

(xlv) MCL 750.530 Unarmed robbery.

(xlvi) MCL 750.531 Bank, safe, and vault robbery where there is physical harm or the threat of harm to others.

(xlvii) MCL 752.191 Felonious driving. (xlviii) MCL 752.541 Riot.

(xlix) MCL 752.542 Incitement to riot.

(lx) MCL 752.542a Rioting; state correctional facilities. (lxi) MCL 750.543a et seq. Michigan anti-terrorism act.

(lxii) MCL 752.861 Careless, reckless, or negligent use of firearms.

(lxiii) Any other crime created by a state law enacted after the effective date of this rule that is determined by the director to be violent or assaultive.

(2)   Prisoners who meet the eligibility requirements outlined in subrule (1) of this rule are qualified for  transfer to community programs are classified to community status under R 791.4401 may be placed in the community under according to the following time schedule:

(a) If serving for an assaultive crime as specified in subrule (1)(l) of this rule or if classified as high assaultive risk, the prisoner shall be within 180 days of the earliest release date.If serving a sentence for an offense subject to disciplinary time, only after serving the minimum sentence imposed by the court for that offense.

(bd) All If serving for an offense not subject to disciplinary time, other eligible prisoners may be placed in community status when they are within not earlier than 2 1 years of their before the earliest release date, subject to either of the following:

(ib) If sentenced as an habitual offender for a crime not identified in subrule (1)(l) of this rule or serving only a sentence under pursuant to the provisions of section 227b of Act No. 328 of the Public Acts of 1931, as amended, being §MCL 750.227b, of the Michigan Compiled Laws the prisoner shall be within not earlier than 1 year 8 months before of the earliest release date.

(iic) If convicted of a felony committed while under the jurisdiction of the department, the prisoner shall have served not earlier than 2 years from after the date of sentence for that offense before being eligible  for community status.

(3)    For purposes of this rule, the minimum sentence is the earliest release date, which is defined as follows:

(a)     For those prisoners who are eligible for good time or disciplinary credits, including those sentenced as habitual offenders for a crime not identified in subrule (1)(l) of this rule for whom the parole board has received permission to parole on the minimum sentence minus applicable credits, the date is the minimum sentence minus all regular credit and special credit.

(b)     For those prisoners who are sentenced as habitual offenders for a crime not identified in subrule (1)(l) of this rule for whom the parole board has not received permission to parole on the minimum

 

 

sentence minus applicable credits, the date is the minimum sentence imposed by the court, without reduction by disciplinary credits or good time.

(c)     For prisoners who are serving a life sentence or a long, indeterminate sentence and who are eligible  for parole pursuant to the provisions of section 34(4) of Act No. 314 of the Public Acts of 1982, as  amended, being §791.234(4) of the Michigan Compiled Laws, the date shall be the parole date, as set by the parole board, or the minimum sentence as described in subdivision (a) of this subrule, whichever comes first.

(34) If more than 1 of the criteria in this rule apply, the more restrictive criterion is controlling.

(45) The procedures of R 791.4401 shall be followed in determining community status classification, except that a A prisoner who has been given a special designation pursuant to the provisions of under subrule (1)(k) of this rule shall have the right to may request a formal hearing, conducted under pursuant to the provisions of R 791.3315 by the department’s hearings division, to determine if that designation is proper. The hearing shall be held within 90 days of after receipt of a request for a hearing by the department’s office of residential and electronic field programs.

(5)   A prisoner may be reclassified from community status under R 791.4401.

(6)    Nothing in this rule creates an enforceable right of a prisoner to be classified to or remain on community status.