Fall 2012 Advocates’ Annual Conference

1. Fall 2012 Advocates’ Annual Conference Policies affecting Crime Victim’s Rights

2. January 29, 1939 – June 18, 2012 “Speak up for those who cannot speak for themselves, for the rights of all who are destitute.” - Proverbs 31:8 The Honorable William (“Bill”) Van Regenmorter Father of Crime Victim’s Rights

3. 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

4. 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?

5. 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 rehabilitation The courts and/or legislation will decide

6. 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.

7. 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

8. What are Advocates for Prisoners Planning? “We believe that Miller requires resentencings for defendants who were under the age of eighteen at the time of the offense…” “Sentencing reformers are beginning the process of petitioning to have the inmates resentenced in their home counties.”

9. 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.

10. Miller and the Teague rule • Based on a 1989 U.S. Supreme Court decision • New 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.

11. 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

12. 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.

13. Where are We Headed Today? • Status of Juvenile Life Without Parole (JLWOP) sentences • Context of victimization: • Criminality v. convictions

15. 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

16. 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

17. What does criminality mean for Michigan? http://academicdepartments.musc.edu/ncvc/grants/50_states_reports/michigan.pdf

18. What does sexual assault look like in Michigan today? Today – estimated 1,005,000 lifetime victims 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

19. Crime is Generally Under-reported http://www.rainn.org/get-information/statistics/reporting-rates

20. Where are We Headed Today? • Status of Juvenile Life Without Parole (JLWOP) sentences • Context of victimization: • Criminality v. convictions • Cost of Crime

21. 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

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

23. Using the cost of crime research

24. 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:

25. Age: 48 Age: 47 Age: 22 Age: 26 Age: 27 Age: 28 Age: 19 Age: 34 Age: 36 Age: 44 Age: 45 Age: 32 Firearm Discharge (Injury or Death) Resisting an office MIP in motor vehicle Home Invasion (1st deg) Receiving and concealing firearms Breaking & Entering a vehicle vehicle Ordinance violation? Larceny License suspension? Forgery 44 Age 19 34 28 26 48 47 ($200) ($20) ??? 36 32 48 27 22 45 Forgery Armed Robbery Firearm—Weapons Felony Controlled substance DEL/MFG less than 50 g Breaking & Entering a coin-operated device Contributing to childhood delinquency Damage to private property Home Invasion (1st deg) Assaulting/Resisting/Obstructing Officer Homicide—Murder (2nd deg) 4th Felony offense with habitualization In prison under VO-4 til 2024 Terry Neil Bowling First adult conviction: 1989 Conviction for Larry Nehasil’s murder: 2011

26. · 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 Terry Neil Bowling A case study in repeat offending

27. Where are We Headed Today? • Status of Juvenile Life Without Parole (JLWOP) sentences • Context of victimization: • Criminality v. convictions • Cost of Crime • Bills of Interest to Victims and Advocates

28. 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

29. 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.

30. 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)

31. 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. THANK YOU, PROSECUTOR BURDICK – YOU WILL BE MISSED! Source – The Michigan Prosecutor, Vol. 45, No. 9, August 2011

32. 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.

33. 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

34. 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

35. 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

36. Separate waiting area – MCL 780.757, 787, 817 • needs to be expanded to cover gang members & other defendant supporters.

37. 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.”

38. 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?

39. 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.

40. 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

41. 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 absconded • Include notice when a prisoner dies • The 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.

42. 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.

43. Some of the Crimes Which Today may be Set Aside Without Victim Notification or Input Homicides: OUIL boating incidents OUIL ORV incidents Death due to furnishing alcohol to minors Death due to explosives Death due to narcotics delivery Death due to intentionally pointed firearm Death due to negligent firearm discharge Death due to negligent use of bow & arrow

44. Some of the Crimes Which Today may be Set Aside Without Victim Notification or Input Serious or bodily injury: OUIL boating incidents OUIL ORV incidents R/O Conservation Officer Assaulting a first responder Torture of a child Child abuse Vulnerable adult abuse R/O or assaulting a LE officer

45. 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, 1985 Juvenile offenders – committed offense on or after June 1, 1988 Misdemeanors - committed on or after June 1, 1988 Historic Perspective - Best estimate is that 90 juvenile LWOP murders were committed before the CVRA was enacted.

46. Where are We Headed Today? • Status of Juvenile Life Without Parole (JLWOP) sentences • Context of victimization: • Criminality v. convictions • Cost of Crime • Bills of Interest to Victims and Advocates • Proposed revisions of the Crime Victim’s Rights Act (CVRA) • Proposed revisions on Restitution and Collectability

47. 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?

48. 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)

49. 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-defendants • At 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.”

50. 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