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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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If the Governor wishes to commute a prison sentence and order release or immediate parole, the Governor must explicitly express such instruction in the commutation. In <em><a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20160818_C327396_52_327396.OPN.PDF" target="_blank" rel="noreferrer noopener">Makowski v. Governor</a></em>, No. 327396, the Court of Appeals held that absent express instruction in the Governor’s commutation that grants parole or release, discretion regarding parole decisions remains with the parole board.  Consequently, although plaintiff’s commutation made him eligible for parole, it did not mandate parole.

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The facts underlying the Court of Appeals’ decision entail several petitions and appeals. The circuit court sentenced plaintiff to life in prison without the possibility of parole after a jury found him guilty of murder in 1988.  In 2010, the parole board considered plaintiff’s application for commutation of his sentence and recommend commutation to the Governor.  The Governor and Secretary of State signed and sealed the commutation. Subsequently, the murder victim’s family expressed opposition and the Governor revoked the commutation. Plaintiff sued the Governor and Secretary of State in 2011, arguing that they could not revoke his commutation. The Michigan Supreme Court determined that the Governor lacked authority to revoke the commutation. As a result, the Court ordered the Department of Corrections to reinstate plaintiff’s sentence to “a parolable life sentence” and remanded him into the parole board’s jurisdiction. Subsequently, the board expressed “no interest” in paroling plaintiff.

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Plaintiff petitioned the Supreme Court for clarification, contending that the parole board previously agreed to parole him when it sent the commutation recommendation to the Governor. The Supreme Court entered an order consistent with the Governor’s commutation. It instructed the Department of Corrections to reinstate plaintiff’s sentence—a minimum term of years equivalent to plaintiff’s time served as of the parole board’s initial recommendation, to a maximum of life—and remanded plaintiff to the parole board’s jurisdiction. Plaintiff moved to have the trial court retain jurisdiction, explaining that he had not been processed for parole even though all other prisoners granted a commutation were promptly released. Thereafter, the parole board denied plaintiff parole. The case was eventually transferred to the Court of Claims.

Plaintiff argued that all prisoners with mandatory life sentences that had been granted a commutation during the Governor’s administration were punctually processed for release; he wished for similar treatment. He asserted that the Supreme Court did not remand the matter to the board to consider his release, but rather to process him for release. Plaintiff characterized his commutation as effectively granting him parole, leaving the board with the duty to carry out the commutation. The Governor argued that the commutation rendered plaintiff eligible for parole.  The Court of Claims concluded that the language used in the commutation made plaintiff eligible for parole; it did not entitle him to parole. Plaintiff appealed, arguing that the Governor’s commutation entitled him to parole and that the board’s refusal to parole him interfered with the Governor’s exclusive authority to commute sentences.

The Court of Appeals clarified that the Governor’s commutation altered plaintiff’s sentence from life in prison without the possibility of parole to a minimum term equal to the time served as of a certain date and a maximum term of life in prison. Accordingly, because plaintiff had served the minimum term, the parole board had jurisdiction to consider him for parole. The board’s decision to deny parole did not interfere with the Governor’s exclusive authority to commute sentences because the Governor did not amend plaintiff’s sentence to one for time-served and did not explicitly order him to be released or paroled. The governor’s commutation merely made plaintiff eligible for parole. If the Governor wished for the commutation to include immediate parole, the Governor could have expressly provided for it. Further, the fact that the board had routinely paroled prisoners who had been given similar commutations did not deprive the board of its discretion to deny parole. Therefore, because no state law or statutory right exists that requires immediate parole after the Governor amends a sentence, none of plaintiff’s due process rights were violated. The Court of Claims correctly determined that the parole board had jurisdiction and discretion to grant or deny parole 

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Madelaine C. Lane

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COA: Parole Board retains discretion where Governor commutes sentence to permit parole but fails to explicitly grant parole

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COA: Parole Board retains discretion where Governor commutes sentence to permit parole but fails to explicitly grant parole

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