fall 2012 advocates’ annual conference policies affecting crime victim’s rights

Fall 2012 Advocates’ Annual Conference

Policies affecting Crime Victim’s Rights

William (“Bill”) Van Regenmorter

The Honorable

January 29, 1939 – June 18, 2012

Father of Crime Victim’s Rights

“Speak up for those who cannot speak for themselves, for the rights

of all who are destitute.”

- Proverbs 31:8

Where are We Headed Today?

Status of Juvenile Life Without Parole (JLWOP) sentences

Context of victimization: Criminality v. convictions Cost of Crime

Legislation of Interest to Victims and Advocates

Proposed revisions of the Crime Victim’s Rights Act (CVRA)

Proposed revisions on Restitution and Collectability

Miller v. Alabama & Juvenile LWOP

• Juvenile Life Without Parole (JLWOP) sentences are still constitutional.

• What is unconstitutional is not giving the Judge any option other than LWOP.

• The Court expects LWOP to be “uncommon”, reserved for that “rare juvenile offender” who shows “evidence of irretrievable depravity.” How does a court determine this?

JLWOP & Sentencing Factors

The Miller decision requires trial courts to specifically consider unspecified “mitigating circumstances” before sentencing a juvenile convicted of first degree murder where a possible sentence is LWOP. Examples mentioned include:

Evidence of intent to kill (esp. for felony murder cases) Age and “lack of maturity” Family and home environment Details of the murder, such as level of participation (get-away

driver versus the shooter, etc.) Inability to understand the criminal justice process Potential for rehabilitationThe courts and/or legislation will decide

Miller’s biggest impact on Michigan

“Juveniles” convicted of first degree murder now includes 17 year olds

Judges sentencing juvenile first degree murderers MUST have at least two sentence options; one can be LWOP, the other must be something less than LWOP

Judges will likely need to hold some sort of “mitigation hearings” before sentencing juvenile first degree murderers

Older cases MAY have to be re-sentenced.

Retroactivity of the Miller Decision

• We have three classes of juvenile murderers:

– Those defendants in the process of being adjudicated

– Those convicted & sentenced, but appealing

– Those convicted and sentenced, who have exhausted all of their criminal appeals

What are Advocates for Prisoners Planning?

“Sentencing reformers are beginning the process of petitioning to have the inmates resentenced in their home counties.”

“We believe that Miller requires resentencings for defendants who were under the age of eighteen at the time of the offense…”

Miller and Application to Juvenile Murderers

• Miller clearly applies to all future cases, pending cases, and cases where appeals are still in process

• Retroactivity/application to older LWOP cases:

– SADO & the ACLU apparently believe every case should be re-sentenced

– The AG has asked the Michigan Supreme Court to rule against retroactivity if the appellate process is finished. It may take months or even years to have a final answer from the courts.

Miller and the Teague rule

Based on a 1989 U.S. Supreme Court decisionNew rules of procedure apply retroactively only if

they are substantive “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.”

The U.S. Supreme Court has not issued a single substantive new rule since 1989.

In Ring v. Arizona, the U. S. Supreme Court held that the means of determining whether to levy the death penalty did not trigger retroactive application.

Attorney General’s Take on Rehabilitation

Some juvenile murderers can likely be rehabilitated.

Far more important is the rehabilitation of victims:

“For the co-victims of homicide – the family and friends of the person that was murdered – recovery is a difficult, life-long process characterized by posttraumatic stress disorder, depression, financial vulnerability, disability, and other challenges.”1

1 - “Murder by Numbers: monetary costs imposed by a sample of homicide offenders” The Journal of Forensic Psychiatry & Psychology, Vol. 21, No. 4, August 2010, 510

Legislation will be drafted

As there is already at least one pending case, legislation is needed fairly quickly to provide an alternative sentence to LWOP for juveniles convicted of first degree murder

Legislative action could be taken before the end of the calendar year. The issue of “mitigation hearings” may be included.

Victims of sentenced JLWOP prisoners should be prepared for potential resentencing motions/hearings.

Any fact scenarios you can share would be appreciated.



Context of victimization: Criminality v. convictions

Criminality

Often the debate centers on how many convictions a person has, as opposed to how much crime that person may have committed.

Convictions are easy to understand and easy to count.

Victims are commonly ignored

Overlooked or also ignored are the estimated vast numbers of unreported crime

Some of the Research on Criminality

This table reflects the results of over 27,000 people, followed for 25 years.

“New Evidence on the Monetary Value of Saving a High Risk Youth”, Cohen and Piquero, December 2007, found at:

http://www.youthcontinuum.org/index_files/Cohen2007.pdf

http://www.youthcontinuum.org/index_files/Cohen2007.pdf

What does criminality mean for Michigan?

http://academicdepartments.musc.edu/ncvc/grants/50_states_reports/michigan.pdf

What does sexual assault look like in Michigan today?

Released November 2011 by the National Center for Injury Prevention and Control Centers for Disease Control and Prevention, Atlanta, Georgia: http://www.cdc.gov/ViolencePrevention/pdf/NISVS_Report2010-a.pdf

Today – estimated 1,005,000

lifetime victims

Crime is Generally Under-reported

http://www.rainn.org/get-information/statistics/reporting-rates



Context of victimization: Criminality v. convictions

Cost of Crime

Victim Rights and the State-wide Debate

Focus in the past few years has been on the spending on the MDOC to house prisoners.

Despite a growing body of research on the cost of crime, debate commonly ignores all fiscal costs and social costs, and focuses primarily on MDOC spending

Victims need a voice in the debate, but economics needs to be looked at in total context

Cost of Crime

“The Cost of Crime to Society: New Crime-Specific Estimates for Policy and Program Evaluation”, Drug and Alcohol Depend., April, 2010

Using the cost of crime research

Putting criminality and cost of crime together

When making the case to the House Judiciary Committee to adopt SB 1109, the VO-4

legislation, four case studies were used to make the point that there is a high cost fiscally

and in victimization if we fail to look at criminality in context. One of the cases:

First adult conviction: 1989Conviction for Larry Nehasil’s murder: 2011

Terry Neil Bowling

Age: 19Age: 22Age: 26Age: 27Age: 28Age: 32Age: 34Age: 36Age: 44Age: 45Age: 47Age: 48

A case study in repeat offending

Terry Neil Bowling

· Born in 1962

· Convicted of 8 misdemeanors and 12 felonies

· Committing home invasions to feed a $300-a-day heroin habit.

· Now serving multiple 100+ year sentences. The Oakland Press, 19 January 2011

Estimated total cost of Bowling’s crime: $1.338 Million (2008 USD)

Officer Larry Nehasil




Bills of Interest to Victims and Advocates

Bills of Interest to Watch

HB 4725 – would exempt from disclosure names and family identifiers when the victim is a minor who has suffered a sexual assault

HB 5665 – removes the sunset on 0.08 BAC for OUIL

HB 5804 – would establish the Michigan Indigent Defense Commission, with the task of reforming assigned criminal defense services.

HB 5809, 5810/SB 1213, 1221 – would raise the penalty for having sex with a 16-17 year old prostitute to a 5 year felony

Bills of Interest to Watch

HB 5797/SB 1214 – would allow the Attorney General to appeal a parole grant

HB 5807/SB 1209 – definition of a “victim” within OV 10 would include an undercover LE officer

HB 5792/SB 1211 – victim notification when: A prisoner dies A commutation request is denied by the Governor A parolee absconds AMENDMENT – all victims of course of conduct can

register with the MDOC as victims if they so choose.




Legislation of Interest to Victims and Advocates


In August of 2011, Isabella County Prosecutor Larry Burdick was elected as the President of

PAAM

What is the theme of your presidency?It is the common, reoccurring interest we all share; the assistance of victims of crime. I am convinced offices throughout the State are developing more efficient and compassionate methods for helping our victims. We need to share those methods, thus elevating how we manage this important responsibility. I am hopeful to begin this process with a detailed survey to all offices, which I ask your assistance in completing, to start us on this path to fulfilling not only our statutory requirements, but providing the extra touch to help victims navigate the criminal justice process.

Source – The Michigan Prosecutor, Vol. 45, No. 9, August 2011

THANK YOU, PROSECUTOR BURDICK – YOU WILL BE MISSED!

As a Result of Prosecutor Burdick’s Leadership

Several Victim’s Rights forums were held around the state…

…resulting in 2 ½ pages of recommendations…

…resulting in requests for dozens of changes in the CVRA…

…and dozens of recommendations for changes in practice and process.

Definition of “Victim” - MCL 780.752, 781, 811

Plea Bargains - Clarify that a victim whose case is dropped by plea agreement retains their rights as a crime victim (including with the MDOC as a victim of record – MCL 780.769(1))

Victim succession – when a victim of record dies, becomes incompetent, or reaches the age of majority, there needs to be a provision for transferring the rights: during the adjudicatory process, with the MDOC, and with the courts during appeals

Additions to Serious Misdemeanors in Article III – MCL 780.811

MCL 257.601d - moving violation causing death or serious injury (new negligent homicide statute)

MCL 750.81c(1) - threats or assault against employee of DHS

? MCL 750.174(2)(3) – embezzlement (also sections 175 through 181 inclusive?)

? MCL 750.218 (3) – False Pretenses? MCL 750.377a(1)(c)(i) – MDOP (also sections

377b through 388 inclusive?)? MCL 257.625(7)(a) – OUIL and child

endangerment

Duty to notify – MCL 780.752a, 781a, 811b

When a defendant is found Not Guilty By Reason of Insanity (NGRI) – Committed to the Center for Forensic Psychiatry Under the jurisdiction of the Dep’t. of Community

Health No requirement within the Mental Health Code for

victim notification

Pursuant to 780.769a, include the director of a facility holding a person found Not Guilty by Reason of Insanity (NGRI). Potential conflict with the Mental Health Code

Separate waiting area – MCL 780.757, 787, 817

needs to be expanded to cover gang members & other defendant supporters.

Victim confidentiality – MCL 780.758, 788, 818, repeal Sec. 780.830?

(2) & (3) – include the victim’s name in the list of information exempt from FOIA, as well as email address, and any and all contact information.

(4) – exclude innocence project type groups? Privacy in general – As a pro-disclosure law, FOIA permits the

redacting of exempted information, but does not require redacting.

As FOIA pre-dates the CVRA and CVR constitutional amendment, it fails to take into account the constitutional rights of crime victims to privacy.

The proposal is to take the approach of crime victim compensation along the lines of MCL 18.355a: “Except with the victim's consent, personal identifying information and victim contact information is exempt from disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246, shall be redacted, and without the victim’s permission shall not be released to any person or party except for the purpose of investigating or adjudicating a crime.”

Presentence Investigation Report – MCL 780.764, 792, 824

Clearly allow input to the probation officer by victims whose case has been dropped by plea

Caveat – in cases of false pretenses, there are commonly numerous victims. Are VI statements ever too many for a judge to read?

Oral Impact Statement – MCL 780.765, 793, 825

Allow a court to permit additional co-victims of homicide to make a statement at sentencing

Specify that the choice of a parent or custodian to exercise the rights of a crime victim does not preclude the victim who is a minor from submitting a victim impact statement to the probation officer or addressing the court.

Clearly allow statements by victims whose cases have been dropped by plea.

Early termination of probation – MCL 780.768b, 795a, 827b

include victims with an unsatisfied order of restitution.

If the MDOC or the court probation office petitions for early discharge from probation, require notice to the prosecutor

Allow the victim to submit a statement to the court to comment on personal safety or unpaid restitution

Notice to victim – MCL 780.769, 798 (current HB 5792/SB 1211 addresses Article I

only)

Include notice when a commutation is denied by the Governor

Include notice that a parolee has abscondedInclude notice when a prisoner diesThe introduced bill could be amended to

allow victims of non-adjudicated crimes (dropped by plea-bargain or as part of a course of conduct) to register with the MDOC as victims, thus allowing them to speak to the parole board.

Notice of petition to have a conviction set aside – MCL 780.772a, 796a

change reference to “assaultive crime” to reference a new section in the Corrections Code that updates the list to add at least 14 homicides and 25 serious injury offenses.

Work towards ending the criminal penalty for victims who talk about a conviction that is set aside.

Work towards requiring any outstanding restitution order to be satisfied before a conviction can be set aside.

Some of the Crimes Which Today may be Set Aside Without Victim Notification or

Input

Homicides:OUIL boating incidentsOUIL ORV incidentsDeath due to furnishing alcohol to minorsDeath due to explosivesDeath due to narcotics deliveryDeath due to intentionally pointed firearmDeath due to negligent firearm dischargeDeath due to negligent use of bow & arrow

Some of the Crimes Which Today may be Set Aside Without Victim Notification or

Input

Serious or bodily injury:OUIL boating incidentsOUIL ORV incidentsR/O Conservation OfficerAssaulting a first responderTorture of a childChild abuseVulnerable adult abuseR/O or assaulting a LE officer

Effective date – MCL 780.775, 802, 834

Extend CVRA rights to all crimes, including those committed prior to enactment, in order to include cold cases within victim rights.

Currently the CVRA applies to:

Felonies – committed on or after Oct. 9, 1985Juvenile offenders – committed offense on or after June 1, 1988Misdemeanors - committed on or after June 1, 1988

Historic Perspective - Best estimate is that 90 juvenile LWOP murders were committed before the CVRA was enacted.




Bills of Interest to Victims and Advocates


Proposed revisions on Restitution and Collectability

Restitution – MCL 780.766, 766b, 794, 826

clarify joint and several. Pay victims before or at the same time as governmental

entities (the first $2000 collected goes towards victim payments? Pay all restitution before any other entity is paid?)

Allow property to be repaired if feasible Clarify that a civil judgment offset to restitution must be for

identical costs. Clarify that ALL victims qualify for restitution Fold human trafficking restitution into the felony restitution

sections, and change from “may” be ordered to “shall” be ordered.

(7), (8), (9) – clarify that restitution to a victim’s estate also extends to heirs & assignees once the estate is closed.

(22) – restitution hearings after sentencing – do we need to be clearer that a judge can’t just say “no” to future modifications?

Allocation of payment – MCL 780.766a, 794a, 826a

clarify that “all money collected” is subject to the allocation, not just that received by the court (folds in MDOC collected costs).

Clarify that all money collected is allocated to “ordered” restitution, not just restitution orders once they’re finally issued (thus including in the allocation money collected at sentencing pursuant to MCR 1.110 and any and all protocols/policies adopted pursuant to A.O. 2010-1)

Determining amount of restitution – MCL 780.767, 795, A new 826B SECTION?

clarify that all victims of the course of conduct are included, not just those with a charge or adjudication

Require a meaningful “debtor’s exam” of the defendant at some point in the process

Require the court to set a payment schedule to reasonably pay off all restitution before discharge from supervised release

Clarify that restitution may not be waived (especially for third party payers)

Clarify that restitution may not be reduced Clarify that restitution may not be allocated among co-

defendantsAt some point require the court to have a lien filed with

the appropriate agency against all real and personal property the defendant has previously identified at a “debtor’s exam.”

SCAO and Work on Collectability

The MSC issued Administrative Order 2010-1 on the issue two years ago, and courts have responsibilities to implement:

http://courts.michigan.gov/supremecourt/Resources/Administrative/AO2010-File2005-13.pdf

SCAO developed 10 components of collectability; these have been distributed to the courts, and can be found at:

http://courts.michigan.gov/scao/services/collections/CollectionsComponentsAndDetails.pdf

MI landed a federal grant and was one of 5 model states to roll out collection practices; they’re the first featured state at:

http://victimsofcrime.org/docs/Reports%20and%20Studies/2011_restitutionreport_web.pdf?sfvrsn=2










Collectability

Revenue Division of Department of Treasury, Act 122 of 1941

MCL 205.30a – income tax refund intercept for garnishment/court order Michigan Vehicle Code, Act 300 of 1949

MCL 257.219 - Administration, Registration, Certificate of Title and Anti-Theft

MCL 257.321a - Cancellation, Suspension, or Revocation of Licenses

MCL 257.901a – operating w/o license on your person

MCL 257.907 - potential waiver of JSA Natural Resources and Environmental Protection Act, Act 451 of 1994

MCL 324.43559 - Hunting and Fishing Licensing Regulated Occupation Support Enforcement Act, Act 236 of 1996

MCL 338.3433 – suspension of occupational license, parenting time infraction

MCL 338.3434 – reinstatement of occupational license, parenting time issue

Collectability (Continued)

Revised Judicature Act of 1961, Act 236 of 1961

MCL 600.1074 - Drug Treatment Courts, payments via Code of Criminal Procedure MCL 600.4801 – clarify “reimbursement” to local unit for cost of response MCL 600.4803 – strengthen late payment penalty MCL 600.4805 - court may bring actions at any time without limitation MCL 600.5809 – court may bring actions at any time without limitation MCL 600.6458 – court of claims settlements applied to outstanding obligations MCL 600.8381 – increase state assessment; allow waiver of Justice System Assessment (JSA) MCL 600.8511 – magistrate may issue bench warrant if authorized MCL 600.8727 - municipal civil infraction: allow waiver of JSA MCL 600.8827 – state civil infraction: allow waiver of JSA


Revised Probate Code of 1939, Act 288 of 1939

MCL 712A.13a – parents responsible for juvenile’s cost of care MCL 712A.18 – waivers, parents, tax intercepts for juveniles MCL 712A.18e – restitution remains despite set aside of adjudication MCL 712A.18m – parents also responsible, allow waiver based upon ineligibility to pay MCL 712A.29 – disbursement of payments be made pursuant to the CVRA MCL 712A.30 – restitution be ordered pursuant to the CVRA MCL 712A.31 – hearings on the level of restitution be held pursuant to the CVRA


The Code of Criminal Procedure, Act 175 of 1927

MCL 762.13 – HYTA probationer payments collected by the court, not the MDOC MCL 765.6c – misdemeanor bail cash deposit applied towards obligations MCL 765.15 – apply cash bond towards any and all obligations MCL 769.1a – CCP reference restitution pursuant to the CVRA MCL 769.1j – allow waiver of minimum state cost MCL 769.1k – CCP, mandatory restitution if appropriate MCL 769.1l – MDOC prisoner funds sweeps apply to all court ordered obligations MCL 771.1 – probation oversight fees collected by the court, not the MDOC MCL 771.3 – eliminate probation payment waiver based on inability to pay MCL 771.3c – collected probationary monies be disbursed pursuant to the CVRA MCL 775.22 – allocation of collected monies be pursuant to the CVRA


Bail for Traffic Offenses or Misdemeanors, Act 257 of 1966

MCL 780.66 – cash bail to be applied towards any outstanding obligations MCL 780.67 – bail bond in lieu of cash to be applied towards any outstanding obligations

Setting Aside Convictions, Act 213 of 1965

MCL 780.621- no set aside application unless all obligations satisfied MCL 780.622 – conviction set aside does not apply to restitution


William Van Regenmorter Crime Victim’s Rights Act, Act 87 of 1985

MCL 780.766 – restitution updates: repair property, human trafficking, civil judgments MCL 780.766a – payments/allocation: add time payment fee MCL 780.794 - restitution updates: repair property, human trafficking, civil judgments MCL 780.794a – payments/allocation: add time payment fee new MCL 780.794b – human trafficking restitution for juvenile offenders MCL 780.795 - disbursement of payments, tech changes on parental responsibility MCL 780.826 – restitution updates: repair property, human trafficking, civil judgments MCL 780.826a - payments/allocation: add time payment fee


Corrections Code of 1953, Act 232 of 1953

MCL 791.220h – prioritize restitution MCL 791.225a – MDOC no longer collect supervision fees; court gets payments MCL 791.236 – Parole order contain mandated payment of restitution order MCL 791.236a – allocation of all monies collected by pursuant to the CVRA

New Legislation A new statute, the Court-Ordered Financial Obligation Compliance Act (COFOCA): •Time Payment Fee and Judicial Enforcement Fund •Collection of Probation Supervision Fees by Courts •Waiver or Suspension of Court-Ordered Financial Obligations •Court-Ordered Financial Obligation Compliance Act •Cost of Third-Party Collections •Community Service in Lieu of Payment

Any Questions?

Felons Sentenced to Prison

Sources: Michigan, Indiana, Ohio, and Illinois DOC Statistical Reports

Imprisonment Rate per 100,000

Sources: State DOC Reports & U.S. Census data

Imprisonment Rates for High Violence States

How long are prison sentences?2009 – Minimum Sentences for All MDOC Commitments

Source: MDOC 2009 Statistical Report

Who currently collects monies from probationers?

• MDOC – oversight fees• Court – costs, fines• Sheriff – jail costs of incarceration• State of MI – prison costs of incarceration• Potentially the FOC

fall 2012 advocates’ annual conference policies affecting crime victim’s rights

Documents

juvenile murderers miller

crime victims rights

collectability slide

offense slide

miller decision

older lwop cases

classes of juvenile

lwop judges