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Michigan Governor Lacks Authority to Revoke Commutations

Michigan Governor Lacks Authority to Revoke Commutations

by David Reutter

The Michigan Supreme Court held on June 3, 2014 that the governor does not have the power to revoke a completed commutation of sentence. It further held that where it is the governor’s clear intent to commute a sentence and the last act required for commutation has been finalized, the sentence has been commuted once the state seal is affixed upon the commutation certificate by the Secretary of State.

Matthew Makowski, 47, was sentenced to life without parole for the 1988 first-degree felony murder and armed robbery of a co-worker. When he filed an application for commutation of sentence in 2010, he was a model prisoner who had received only “two minor misconduct tickets while in prison.” The parole board recommended that the case proceed to a public hearing, which occurred on October 21, 2010. Neither the prosecutor nor victims’ family appeared at the hearing.

The parole board then sent the commutation application to Governor Jennifer Granholm, who signed it on December 22, 2010, making Makowski eligible for parole. The paperwork was forwarded to the Secretary of State, who affixed the state seal and the Secretary’s signature.

Granholm’s legal counsel received a call the next day from an attorney representing the victim’s family, who expressed opposition to the commutation and dissatisfaction with the lack of notice of the hearing. On December 27, 2010, Governor Granholm sent a letter to the parole board stating it was her intention “to revoke the commutation.” Her deputy legal counsel obtained and destroyed all copies of the signed commutation certificate.

With a new governor in office the following month, the parole board reconsidered Makowski’s application on March 25, 2011. It voted against commutation, and Governor Rick Snyder agreed with that recommendation. Makowski filed suit, alleging the commutation of sentence granted by Governor Granholm was final when it was signed and sealed. The trial court granted the state’s motion for summary disposition and an appellate court affirmed.

The Michigan Supreme Court granted review, finding the case presented a justiciable issue because it ultimately rested on the legal question of when the grant of a commutation becomes effective and if it may be revoked.

The commutation stated that Granholm “Hereby commute[d] the sentence of” Makowski, and the last act of signing the document and having the seal affixed made the commutation final, the Court held. It noted that Granholm herself considered the commutation to have been granted, as evidenced by her use of the word “revoke” in her letter to the parole board.

The state Supreme Court then held that the Michigan Constitution grants the governor the power to issue commutations but not to revoke them. The Court noted that conditional pardons and commutations are permitted, which allow revocation of a commutation if the conditions are not met. However, Granholm’s authority over Makowski’s sentence ended once the commutation became final, and her attempt to revoke it impinged on the parole board.

Justice Brian Zahara issued a concurring opinion that concluded the commutation was final upon the governor’s signature, not when the state seal was affixed as found by the majority. That, he said, is when the executive’s power is exercised. See: Makowski v. Governor, 495 Mich. 465 (Mich. 2014).

Although Makowski is now eligible for release on parole just like any other parolable lifer, Michigan Attorney General Bill Schuette opined that he should not be freed.“This is a murderer whose commutation should never have been granted in the first place,” Schuette said. As of February 2015, Makowski remained in prison.


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Related legal case

Makowski v. Governor