MDOC changes policy regarding habitual offenders and parole

Following the October 2015, ruling of Hayes v. Parole Board in the Michigan Court of Appeals, the Michigan Department of Corrections (MDOC) has issued a new policy stating the Michigan Parole Board must consider parole for a habitual offender who earned disciplinary credits without first receiving permission from his sentencing judge. The MDOC directive  03.01. 102 was issued on Aug. 1, 2016, and supersedes 03.01.102 (08/08/ 1988). The case, which was argued by attorney Sarissa Montague of Levine & Levine, centered on Nathan Hayes, 39, of Kalamazoo.

Hayes was sentenced in 1996 to 20 to 30 years in prison on armed robbery and conspiracy charges. Because he was sentenced before Michigan’s “truth in sentencing” law was implemented, Hayes was eligible to earn disciplinary credits. The credits are not available to individuals sentenced after “truth in sentencing” was enacted.

The Parole Board’s practice was to get permission from a habitual offender’s sentencing judge before considering parole. Hayes asked his sentencing judge’s successor to grant jurisdiction to the Parole Board to consider him for parole, but Judge Gary Giguere Jr. concluded he couldn’t because the Parole Board already had jurisdiction.

“This policy directive by the MDOC will now allow the many inmates who were left in limbo and not able to make use of their earned disciplinary credits, to have an opportunity for the parole board to hear their case,” said Sarissa Montague, attorney, Levine & Levine. “Before this policy was put in place the Michigan Parole Board only considered disciplinary credits if the sentencing judge approved them, but the Michigan Department of Corrections instructed inmates not to contact their sentencing judge about parole prior to their release date.”

In 2015, per Giguere’s decision not to hear Hayes’ request for parole, Montague filed a writ of mandamus, asking that the Court of Claims order the Parole Board to consider him for parole without first receiving permission from Giguere. The Court of Claims refused and Montague appealed the decision to the Court of Appeals, which agreed with Hayes and ordered the Court of Claims to issue the “extraordinary remedy” of a writ of mandamus, ordering the Parole Board to consider Hayes for parole.

“The ruling has had broader implications; a significant number of prisoners are now able to go before the Parole Board for parole consideration,” Montague said.

The change in policy will allow an estimated 100 to 200 habitual offenders in Michigan to be considered for parole, but not necessarily granted early release.

Hayes was seen by the parole board in February. The parole board recommended Hayes’ release from prison and his sentencing judge granted his parole. After more than 21 years of incarceration, on May 17, 2016 Hayes was released from prison. Upon his release he visited briefly with Sarissa Montague and then got onto a plane to Florida where he resides with family. He started work within one week of gaining his freedom and has been adjusting very well to his new life.