Pew Center report lauds Michigan Prisoner Reentry Initiative

Michigan’s recidivism rate dropped 18.2% between 1999 and 2004 for parolees committing technical violations of their release, according to a recent Pew Center on the States/Association of State Correctional Administrators report.

But returns to prison for new crimes increased 21% during the same period, according to the report.

Although Michigan’s repeat offender rates are a mixed bag, the report says that post-study information shows that the Michigan Prisoner Reentry Initiative is having a positive effect on the state’s recidivism rates.

At the start of the millennium, Michigan did not look like a state on the cusp of inspiring correctional reform. Its myriad problems included high crime rates, a sharply rising inmate population, disappointing recidivism numbers and an economy deeply wounded by the ailing auto industry. By 2002, the state was sinking $1.6 billion a year into corrections, almost one-fifth of its general fund.

Less than a decade later, Michigan is riding a wave of policy changes that have allowed it to shrink its inmate population by 12 percent, close more than 20 correctional facilities and keep a growing number of parolees from returning to custody.

The cornerstone of the effort is the Michigan Prisoner Reentry Initiative (MPRI). Launched in 2003 and expanded statewide in 2008, the initiative’s mission is to equip every released offender with tools to succeed in the community. MPRI begins at intake, when a prisoner’s risk, needs and strengths are measured to develop individualized programming. Prior to parole, offenders are transferred to a reentry facility, and a transition plan, which addresses employment, housing, transportation, mentoring, counseling and any necessary treatment for mental illness or addictions, is finalized in close collaboration with community service providers. After release, officers use firm but flexible graduated sanctions- including short stays in a reentry center if needed-to manage rule breaking before it escalates to more serious transgressions.

The Pew/ASCA recidivism survey found a mixed picture in Michigan. Recidivism declined by 18 percent between 1999 and 2004 because of a dramatic drop in the reincarceration of technical violators, but returns to prison for new crimes jumped by almost 21 percent during the period. Those numbers, however, do not capture progress that has occurred under MPRI since Pew’s observation period ended in 2007.

Overall, post-2007 preliminary figures from the Michigan Department of Corrections show that parolees released through the MPRI are returning to prison 33 percent less frequently than similar offenders who do not participate in the program. A closer look at all offenders released from Michigan prisons reveals that parole revocations for both new crimes and technical violations are at their lowest level since record keeping began 23 years ago. In 2009, there were 195 revocations for every 1,000 parolees-101 were for technical violations and 94 were for new crimes. A decade earlier, that figure was 344 revocations per 1,000 parolees-246 for technical violations and 98 for new criminal convictions.

The trend is particularly significant because Michigan’s parole population has grown dramatically in recent years. As MPRI has produced positive results, members of the state’s Parole & Commutation Board have become increasingly confident about parolee success, leading to higher parole approval rates. As a result, the state paroled roughly 3,000 more prisoners in 2009 than it did in 2006.

Source: Pew Center on the States.

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In their opinions …

prison cell“[T]he [trial] court and the DHS failed to facilitate respondent’s participation in the child protective action by telephone in light of his incarceration, as required by MCR 2.004. …

“The court effectively terminated respondent’s parental rights merely because he was incarcerated during the action without considering the children’s placement with relatives or properly evaluating whether placement with respondent could be appropriate for the children in the future.

“Incarceration alone is not a sufficient reason for termination of parental rights.”

– Michigan Supreme Court Justice Maura D. Corrigan, writing for the majority in In re: Mason. Dep’t of Human Services v. Mason, et al.

“[T]he majority reverses the judgment of the Court of Appeals, which affirmed the trial court’s termination of [respondent’s] parental rights, on the basis that the Department of Human Services (DHS) and the trial court did not do enough to help respondent become a better parent. I believe that the majority has it exactly backwards — respondent is the one who did not do enough to become a better parent.”

– Michigan Supreme Court Justice Stephen J. Markman, dissenting in Mason.

While Richard Mason was doing time for a drunken driving conviction, and then for the resulting probation violation of a larceny conviction, the DHS removed his two sons from Smith, the boys’ mother.

Mason and Smith’s parental rights were eventually terminated when Mason was up for parole. Smith didn’t attend the termination hearing and did not appeal. Mason was there and did appeal. The Court of Appeals shut him down.

But Corrigan, joined by Chief Justice Marilyn Kelly and Justices Michael F. Cavanagh and Robert P. Young Jr., faulted the trial court for not facilitating Mason’s participation by telephone during some phases of the proceedings.

The majority also said the court and the DHS didn’t “ensure[ ] that [Mason] had a meaningful opportunity to comply with a case service plan, or consider[ ] the effect of the children’s placement with his family.”

Markman, joined by Justice Diane M. Hathaway, didn’t see any problem with the extent of Mason’s participation:

Because respondent was incarcerated, he was not present at all the proceedings, but his counsel was always present on his behalf.

Respondent’s counsel indicated that although he wrote to respondent and notified him of the proceedings and of the fact that respondent could participate by way of speakerphone, respondent did not initially respond.

That is, contrary to the majority’s repeated contention that respondent was not informed of his right to participate in the hearings by telephone, respondent’s attorney did, in fact, inform respondent of this right. …

[R]espondent did also, in fact, participate by way of speakerphone during at least two of the proceedings, and he did physically attend the termination hearing.

Markman also took issue with the majority’s conclusion that the DHS and the trial court did do enough to help Mason “become a better parent.” Any mischief here was that of Mason’s own making:

The majority, quoting the children’s lawyer-guardian ad litem, asserts that respondent was “‘hamstrung from the beginning [in] trying to get things in order so that he [could] one day be a father to these children.'”

However, the majority disregards two quite significant points.

First, to the extent that respondent was “hamstrung,” this was of his own making — nobody but respondent can be blamed for the fact that he was in prison during the pendency of these proceedings.

Second, there is no evidence that respondent did anything to provide for his children while they were living with their unfit mother, with foster parents, or with their paternal aunt and uncle. Instead, respondent pleaded “no contest” to the removal petition that alleged that “Mr. Mason has failed to provide for the children physically, emotionally and financially.”

Justice Elizabeth A. Weaver joined Markman’s dissent in a separate opinion.

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Brushing up on the Eighth Amendment

Toothpaste

Toothpaste for inmates should be a no-brainer.

Prison isn’t supposed to be, and hardly ever is, a cakewalk.

But, according to a Sixth Circuit panel, it shouldn’t cost a prisoner a tooth because he couldn’t buy toothpaste for 337 days.

Jerry Flanory was an inmate at the Newberry Correctional Facility (NCF). Officials there decided that Flanory should work toward obtaining a General Equivalent Degree (GED).

Flanory said that was pointless because he already had one and also had an associate’s degree from a community college. Check my presentence report (PSIR), he said, it’s all right there.

You’ll attend GED classes anyway, was the response. The PSIR isn’t proof that you’ve actually been educated, we need better documentation, they said.

Flanory grieved the decision and signed a waiver to be removed from the program. Fine, said the officials, if you won’t go to school, we’re going to send you to your room.

One consequence of Flanory’s room restriction was a loss of his indigency status. Here’s what happened next:

As a result, he was not able to purchase personal hygiene items, including toothpaste. In response to Flanory’s grievance concerning the situation, Davis, NCF Warden, denied Flanory’s grievance appeal, stating that Flanory would be ineligible for indigent status for a period of 12 months, and that certain hygiene items, including bars of soap, shampoo, tooth swabs, and toilet paper, were available in the housing units. Flanory then requested these items from Potts, NCF Assistant Resident Unit Supervisor, who responded that the items were not available. Toothpaste was among the hygiene items listed by Davis as only available for purchase in the prisoner store.

Flanory v. Bonn, et al.

Eventually, cooler heads prevailed. A new principal took over NCF’s GED program. Flanory spoke with him. The new principle contacted Flanory’s community college and verified his degree. Flanory was taken off room restriction and placed into the work pool. He spent some of his earnings to obtain documentation that he had, in fact, earned a GED at another facility.

When Flanory had regular access to toothpaste, his teeth and gums were in good shape. But 337 days without toothpaste had taken their toll. About two months before he was placed in the work pool, he complained of a toothache. An examination revealed peridontal gum disease. The prison dentist had to pull a tooth.

Flanory filed his Eighth Amendment lawsuit in the U.S. District Court at Marquette. Judge R. Allan Edgar dismissed it for failure to state a claim upon a magistrate judge’s report and recommendation.

The Sixth Circuit reversed. Judge Algenon L. Marbley, sitting by designation, explained:

Dental needs fall into the category “of serious medical needs” because “[d]ental care is one of the most important needs of inmates.” …

The Seventh Circuit has recognized the ability of prisoners to state a cognizable Eighth Amendment claim where they were denied oral hygiene supplies, specifically toothpaste. Board v. Farnham, 394 F.3d 469, 481 (7th Cir. 2005). In Board, the court found that certain prison officials were not entitled to qualified immunity when they denied prisoners toothpaste for a three-and-a-half week period.

Marbley noted that for an Eighth Amendment claim to go
forward, there must be more than a temporary de minimus injury. Flanory’s situation definitely qualified:

Given that the deprivation of toothpaste in this case allegedly spanned 337 days, after which Flanory was diagnosed with peridontal disease of the gums and one tooth was extracted, Flannory has shown both that the deprivation was not temporary and that he suffered physical injury.

Remember, this all started when Flanory, who had a community college degree under his belt, balked when prison officials decided he needed to go back to school to earn a GED that he already had.

But it seems there were a few other folks who really did need to retake of some of their classes — to brush up on the Eighth Amendment.

And that’s the tooth of the matter.

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In their opinions

“The trial court properly concluded that plaintiff failed to plead facts sufficient to establish mutuality of agreement.”

Michigan Court of Appeals Judges E. Thomas Fitzgerald, Mark J. Cavanagh and Alton T. Davis, exercising remarkable judicial restraint in Sharp v. Dep’t of Corrections, when affirming dismissal of a pro per prisoner’s $19 billion wrongful-imprisonment claim.

Archie Sharp, who’s serving a 30- to 110-year term, sent a letter to his warden, Kurt Jones. Sharp’s missive, styled as a “Private Agreement,” demanded $1 million for every day that he was being kept in the pen.

By its terms, the document was “self-executing” and would become effective if [Jones] allowed a five-day period to expire without responding.

To no one’s surprise, Jones didn’t answer Sharp. So, Sharp sued in the Court of Claims, alleging that Jones was liable “to him under the terms of the ‘Private Agreement,’ as either an express contract or an account stated.”

A claim like Sharp’s can be fertile ground for clever appellate judicial zingers.

But Judges Fitzgerald, Cavanagh and Davis resisted the temptation placed before them. Instead, they patiently explained that the “agreement” lacked mutuality, did not fall under the UCC and did not present a claim for account stated.

And that, folks, is a fine example of a class judicial act.

MSC adopts prisoner mailbox rule

Pro se prisoners’ appeals will be considered filed when they place the legal documents in the prison’s outgoing mail system, under Michigan Court Rule amendments the Michigan Supreme Court adopted yesterday on a 5-2 vote.

From the staff comment to ADM File No. 2009-07:

The rule applies to appeals from administrative agencies, appeals from circuit court (both claims of appeal and applications for leave to appeal), and appeals from decisions of the Court of Appeals to the Supreme Court.

The amendments affect MCR 7.105, 7.204, 7.205, and 7.302 and take effect May, 1, 2010.

Why did the MSC do this? You may be shocked to learn that prison mail systems do not always operate as efficiently as the U.S. Postal Service. Chief Justice Marilyn Kelly presented her view on the situation in a concurring statement to the amendments:

This Court has seen numerous prisoner appeals rejected as untimely despite the fact that they were delivered to the prison mail system before the filing deadline. In one case in which the appeal was not timely received, the prisoner placed it in the prison mail system more than two weeks before the filing deadline. See In re Kinney, 483 Mich 944 (2009) (KELLY, C.J., concurring).

In dissent, Justice Maura Corrigan said the rule is unnecessary and noted that Michigan provides “inordinately generous” filing deadlines.

The prison mailbox rule that the Court now adopts, however, unnecessarily favors prisoners by extending their rights to appeal and thereby delays finality of their cases. The rule clearly does not engender equality of treatment, but establishes special treatment for prisoners only.

Young acknowledged that prisoners are not on equal footing with members of the general public.

Certainly, a dilatory prisoner may be more disadvantaged than a dilatory member of the public. However, imprisonment is not without its inconveniences. …

Rather than acknowledge that the generosity of our filing deadlines renders a mailbox rule unnecessary, the majority incentivizes delay by tardy filers who apparently cannot file their papers within either a 42-day period or a 365-day period. While the mailbox rule is premised on the federal system, the majority fails to acknowledge that inmates in the federal system have only 10 days in which to file their application.

It is one thing to ensure that imprisoned defendants have fair access to the courts. It is entirely another to reward a lack of diligence and cunctatory behavior.

Ok, anyone out there who has not sent a law clerk rushing to the courthouse with a last-minute, beat-the-deadline filing, please raise your hand.

State gets child-murderer’s pension

The Muskegon Chronicle reports that a Muskegon judge has awarded most of child-murderer Dean Catlin Metcalfe’s pension money to the state, to reimburse taxpayers for some of the cost of keeping Metcalfe in prison until he dies.

The order from 14th Circuit Judge James M. Graves Jr. earlier this month

ends a lawsuit by the state treasurer seeking the bulk of the killer’s past and future pension checks from CMS Energy. Metcalfe gets a $263 monthly check deposited into his prison account from CMS, formerly Consumers Power, where he worked as a mechanical repairman. …

Earlier, Graves ruled that the estate of Metcalfe’s murder victim, Andre Bosse, has no legal right to the pension money. That ruling was not disputed by the victim’s mother, Linda Bosse, whose attorney conceded the state’s argument that a December 1997 judgment awarding all of Metcalfe’s assets to the victim’s estate was no longer in effect because more than 10 years had passed without its being enforced.

Report: Harsh treatment in Michigan for young criminals

The Detroit News reports that Michigan’s high number of teens sentenced to life in prison without parole has child advocates questioning laws that give judges that option.

A study by the University of Texas says Michigan has the second most such inmates in the country. The report also says Michigan is among the harshest in the way it treats teens accused of major crimes.

Michigan’s laws are unusual in that they allow juvenile judges to impose adult penalties on children too young to be transferred to adult criminal court, according to the report by the Lyndon Baines Johnson School of Public Affairs.