Parole Appeals

If you are denied parole, unfortunately you cannot appeal that decision. But if you are granted parole, under MCR 7.118 and MCL 791.234(11), either the prosecutor or the victim can appeal to the circuit court try to keep you in prison.

What does it take to overturn a Parole Board decision? It must be shown that the Board’s decision was

            in violation of the Michigan Constitution, a statute, an administrative rule, or a written agency regulation . . . or

            a clear abuse of discretion

Considered in the abstract, this should be a difficult standard to meet. In practice, though, many circuit court judges are apt to find a way to keep you in prison.

Let’s go step by step through the parole appeal process. Although both the prosecutor and the victim have the right to appeal and the process is—for all intents and purposes—identical regardless of which party institutes the appeal, the vast majority of parole appeals are undertaken by the prosecutor. The rest of this article, then, will refer to the prosecutor as the appealing party.

To appeal or not to appeal

After the Parole Board mails out notice of its decision to parole you, the prosecutor has 28 days to file what’s called an application for leave to appeal. This is basically an essay explaining the circumstances of your case and why the prosecutor thinks you should stay in prison. (The prosecutor can also file a delayed application for leave to appeal within 6 months, but this is uncommon in parole appeals.) It’s important to point out that since the appeal is by application, this means that the circuit court does not necessarily need to hear the appeal at all. Instead, the circuit court judge gets to make an initial determination of whether he or she will consider the prosecutor’s appeal.

Frequently, the Parole Board, represented by the Michigan Attorney General, will act as what’s called an intervenor in the appeal. Typically, this means that the Attorney General will oppose the local prosecutor and argue that the Parole Board’s decision should not be overturned on appeal.

Prisoners can file a response to the prosecutor’s application themselves (what’s called in pro per or pro se) or they can retain an attorney to file a response for them. Prisoners may also request an appointed attorney, but the circuit court judge is not required to appoint one, and often the judge will deny the request.

When the prosecutor files an application for leave to appeal, they will often also request a stay, meaning that you remain in prison pending the judge’s decision whether to hear the prosecutor’s appeal. Such requests are usually granted by circuit court judges.

The circuit court judge’s decision

After receiving an application from the prosecutor, the circuit court judge must ordinarily make a decision within 28 days.

The circuit court judge may deny the prosecutor’s application, meaning that he or she will not hear the appeal at all. This is a win for the prisoner. The prosecutor can try to file further applications in the Michigan Court of Appeals and the Michigan Supreme Court, and often the prisoner will remain in prison pending those appeals, which can take several months.

If the circuit court judge grants the application—also called granting leave to appeal—this does not mean that the prisoner has automatically lost. All this means is that the circuit court judge has decided to hear the prosecutor’s appeal.

If the circuit court judge grants the prosecutor’s application

If the application is granted, this triggers another round of legal briefs that the parties are required to file with the court. Again, prisoners can either file their own brief, retain an attorney to file their brief, or ask the circuit court judge for a court-appointed attorney (which the judge is not required to grant).

The judge will then issue an opinion either affirming or reversing the Parole Board’s decision. And remember, the judge can only overturn the Parole Board if the Board’s decision was (1) in violation of the Michigan Constitution, a statute, an administrative rule, or a written agency regulation or (2) a clear abuse of discretion.

Prosecutors can get very creative in trying to establish one or both of these factors. And, unfortunately, many circuit court judges will buy even the flimsiest arguments that prosecutors put forth. This is especially a problem in criminal sexual conduct (CSC) cases.

Appeals in the Court of Appeals and Supreme Court

So what happens if the circuit court judge sided with the prosecutor and overturned the Parole Board’s decision? You can file an application for leave to appeal with the Michigan Court of Appeals. The Court of Appeals will then make a decision whether they want to hear your appeal. If the Court of Appeals denies your application, your last step is to apply for leave to appeal in the Michigan Supreme Court.

Over the past several years, a noticeable pattern has emerged in parole appeals in the appellate courts. Often, when a prisoner applies for leave to appeal in the Court of Appeals, that court will deny the application. The prisoner will then apply for leave to appeal in the Supreme Court, which will send the case back to the Court of Appeals “as on leave granted.” In essence, the Supreme Court is forcing the Court of Appeals to hear the appeal even though the Court of Appeals initially refused to. And often, the prisoner will then win the appeal in the Court of Appeals.

This happened in one of my cases. After the Court of Appeals initially denied leave to appeal, the Supreme Court remanded as on leave granted. The Court of Appeals then decided in my client’s favor, reinstating his parole.

This is just an overview of the parole appeal process in Michigan. For more information, contact an experienced criminal appeal and postconviction attorney.