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Michigan Federal Court Issues Injunctive Relief for Lifer Parole Hearings

Michigan Federal Court Issues Injunctive Relief for Lifer Parole Hearings

by John E. Dannenberg

The U.S. District Court for the Eastern District of Michigan issued a declaratory judgment and remedial injunctive order granting new hearings to non-drug offense parolable Michigan prisoners sentenced to life prior to 1992, who had been denied parole hearings due solely to gradual changes in parole board rules. The court had previously held that those changes had the net effect of increasing punishment in violation of the U.S. Constitution’s Ex Post Facto clause. [See: PLN, Feb. 2008, p.20].

The injunctive order affects a class of over 1,000 pre-1992 non-drug offense lifers who are in theory eligible for parole, but whose hearings have been sidelined due to insidious changes in parole board rules that have delayed their parole consideration to the point of eternally denying them release on parole. In essence, the court’s ruling will return the parole board rules to the status quo that existed before 1992.

Considering the defendants’ prior unconstitutional conduct, the skeptical district court issued a 24-paragraph “first remedial order” to cover an initial six-month period, during which it gave the defendants “a chance to show that they are both willing and able to remedy the constitutional violations.”

The order begins by requiring the parole board to identify the 250 longest-serving lifers from the 1,000 class members, purging those whose “true” security classification is presently above Level III, as well as those having additional sentences that would render them parole ineligible within the next six months.

If any of the 250 longest-serving lifers are already in the parole “pipeline,” they too shall be deleted from the list. The board will then interview all of the remaining parole candidates, in order of those having served the longest time first, who will be “considered anew” for parole under the terms of the court order. Those terms include preparing parole eligibility, medical and psychological reports, as well as permitting the prisoners to place relevant materials in their files.

Parole decisions are then to be made by applying the parole laws, policies, procedures and standards that were “applied by the old parole board in the decades before 1992,” which the court then set forth. In implementing the pre-1992 standards, the parole board was ordered “to be mindful of the fact that for decades the average time served for parolable lifers at the point of parole was 18 years, and that most parolable lifers were paroled between 15-18 years.”

Within six months, the board shall report back to the district court and commence processing another group of 250 lifers. The court will review the results from the first group to determine if new or different remedies are needed to achieve “constitutional” parole reviews.

The district court made its ruling regarding the Ex Post Facto violations a final permanent injunctive order within the meaning of the Prison Litigation Reform Act, 18 U.S.C. § 3636(a), for purposes of appeal. The court declared it would deny any stay pending an appeal (which has since been filed by the state), due to the “size of the class and the serious ongoing harm to the individual class members, many of whom almost certainly would have been paroled years ago but for the defendants’ conduct.”

On April 29, 2008 the court awarded $5,517.90 in costs and $181,407.45 in attorney’s fees, with $136,040.70 of the fees apportioned to the plaintiffs’ lead counsel, Paul Reingold, and $45,366.75 to the Michigan Clinical Law Program. The court retained jurisdiction in the case to monitor the board’s progress. See: Foster-Bey v. Rubitschun, U.S.D.C. (E.D. Mich.), Case No. 05-cv-71318-MOB-VMM (Feb. 7, 2008).

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Related legal case

Foster-Bey v. Rubitschun