Families in Action
A Guide to Drug-Related State Ballot Initiatives
A PETITION TO REFORM DRUG SENTENCING PRACTICES AND PROVIDE TREATMENT INSTEAD OF JAIL TIME FOR CERTAIN OFFENDERS IN THE STATE OF MICHIGAN BY AMENDING ARTICLE I OF THE MICHIGAN CONSTITUTION TO ADD NEW SECTIONS 24 AND 25 WHICH WOULD READ AS FOLLOWS:
Article I, Section 24.
PENALTIES FOR MAJOR DRUG TRAFFICKERS; LIMITATIONS ON PLEA BARGAINING; CREATION OF DRUG SENTENCING COMMISSION; POWERS AND DUTIES OF COMMISSION.
The legislature shall establish a mandatory minimum term of twenty years imprisonment for major drug traffickers, as defined herein, for offenses committed after the effective date of this section.
For a person to be convicted of being a major drug trafficker, the trier of fact must find as an element of the offense that the person earned, or attempted or conspired to earn, a net profit of at least $500,000 from the distribution of controlled substances in the charged offense and was the leader, organizer or manager of five or more people in the charged scheme to distribute controlled substances; or, as an element of the offense that the person earned, or attempted or conspired to earn, a net profit of at least $250,000 from the distribution of controlled substances in the charged offense and was the leader, organizer or manager of five or more people in the charged scheme to distribute controlled substances, and one or more of the following: the person committed or directed the commission of one or more violent acts in furtherance of the charged offense; that the person has on two or more prior occasions been convicted of a felony controlled substance distribution offense or a violent felony; the person utilized one or more minors in the distribution of controlled substances in furtherance of the charged offense; or the person knowingly mixed or directed the mixing of an adulterant with the controlled substances distributed as part of the charged offense that caused or was reasonably likely to cause significant bodily injury. Beginning in calendar year 2004, the drug sentencing commission created by this section shall annually adjust the profit figures set out herein by March 31 of each year in accordance with the annual average percentage increase or decrease in the United States Consumer Price Index for the 12-month period ending the preceding December 31. The mandatory minimum term of incarceration established by the legislature pursuant to this section shall take effect notwithstanding the provisions of this section abrogating other statutory mandatory sentences.
In any case in which a person is charged as a major drug trafficker, the trial court may not accept a plea of guilty or nolo contendere to a lesser offense unless the prosecutor explains on the record the terms of any plea agreement and why accepting the plea to the lesser offense is in the best interests of the public.
Creation of drug sentencing commission
A drug sentencing commission is hereby created as an independent entity.
The drug sentencing commission shall develop sentencing guidelines consistent with the provisions of this section and Article I, Section 25 of this constitution, to be applied by the courts of this state in all cases involving a conviction for a controlled substance offense under part 74 of the public health code or any substantially similar statutory provision that exists upon the effective date of this section or is enacted hereafter.
The drug sentencing commission shall also develop guidelines to be applied by the courts in determining whether to revoke probation and incarcerate a probationer for substance abuse, and to be applied by the parole board in determining whether to revoke parole and re-incarcerate a parolee for substance abuse.
The commission guidelines shall be calculated to: adequately punish violations of law, protect public safety, ensure that prison and jail space are used cost-effectively, preserve judicial discretion while reducing disparities in sentencing, promote the treatment and rehabilitation of substance-abusing offenders, and facilitate the successful re-entry of offenders into the community.
Composition and selection of the drug sentencing commission; filling vacancies; quorum
The drug sentencing commission shall consist of the following members: two members of the senate, consisting of one member appointed by the majority leader and one member appointed by the minority leader; two members of the house of representatives, consisting of one member appointed by the speaker of the house and one member appointed by the minority leader; two judges, at least one of whom is a circuit court judge in Wayne County; one member of a local community corrections board; one person who is a sheriff or a county jail administrator; three people who are licensed drug treatment professionals, including one who is a practitioner of narcotic replacement therapy; two people who direct drug treatment programs in Michigan, at least one of whom directs a program providing services in Wayne County; one person in recovery from the abuse of illegal drugs who at the time of appointment is employed as a staff counselor at a drug treatment program; two licensed health professionals, who may be physicians or clinical psychologists; two nurses with training and experience in the field of addiction therapy; one person who represents prosecuting attorneys; one person who is a public defender or defense attorney; one person who represents the department of corrections; one person who represents advocates of alternatives to incarceration; one person who provides re-entry services to parolees; and two people who represent the general public. Except as otherwise provided herein, each member shall be appointed to serve a term of four years.
The four legislator members of the commission shall be appointed as set out above. All other initial appointments to the commission shall be made as set forth below not less than thirty calendar days and not more than ninety calendar days after the effective date of this section.
The governor shall appoint for initial terms of two years the following members: one licensed drug treatment professional; one licensed health professional; one person who represents the department of corrections; one person who represents public defenders or defense attorneys; one person who provides re-entry services to parolees; and one member of the general public. The governor shall appoint for full terms of four years the following members: one judge; one licensed drug treatment professional; one drug treatment program director; one nurse; one person representing prosecuting attorneys; and one person who represents the general public.
The legislature shall appoint for initial terms of two years the following members: one judge; one drug treatment program director; one member of a community corrections board; one person in recovery; and one nurse. The legislature shall appoint for full terms of four years the following members: one sheriff or jail administrator; one licensed drug treatment professional; one licensed health professional; and one advocate of alternatives to incarceration. Legislative appointments shall be made by agreement of the leaders of each caucus in the Senate and the House of Representatives.
The members of the commission shall select a chairperson and alternate chairperson from among their membership. A vacancy on the commission shall be filled in the same manner as the original appointment. A person appointed to fill a vacancy shall be appointed for the balance of the unexpired term.
A quorum of the drug sentencing commission shall consist of a majority of its members. All commission business shall be conducted by not less than a quorum. The commission shall meet at least twice each year. The business of the commission shall be conducted at public meetings held in compliance with the Open Meetings Act, Act 267 of the Public Acts of 1976, or successor statutory provisions. The commission shall request and consider public comments on all guidelines and amendments before transmission to the legislature for approval.
A commission member shall not receive a salary for being a commission member, but shall be reimbursed for his or her actual, reasonable and necessary expenses incurred in the performance of his or her duties as a commission member.
Factors to be considered in setting guidelines
The sentencing guidelines developed by the commission shall be designed to result in sentences proportional to the offender and the severity of the offense. The guidelines shall include at least the following aggravating and mitigating factors: the offender’’s prior criminal record; whether the offender used or encouraged the use of a firearm, or committed or encouraged an act of violence in the commission of the offense; whether the offender was a leader, manager or organizer of others involved in the commission of the offense; the extent of profit the offender earned or attempted to earn from the offense; whether the offender’s conduct was for the purpose of personal gain; whether the offender’s conduct in the offense was performed under duress or at the urging of another person, including a law enforcement officer; the offender’s age; whether the offender was a minor or peripheral participant; and whether the offender’s use or history of use of drugs contributed significantly to the offender’s participation in the offense. A court shall only depart from commission guidelines to the extent and in the manner that sentencing guidelines for other criminal sentences under state law permit such departures.
Commission guidelines for revoking probation and parole based on substance abuse shall be designed to result in sanctions that are proportional to the offender and the violation or offense. Such guidelines shall ensure that probation or parole is not revoked for a substance abuse violation alone until a reasonable opportunity for treatment is offered and the person has elected not to receive treatment or has failed to comply with the conditions of such treatment. Revocation guidelines shall include but not be limited to: the danger to the community if the offender is not incarcerated; the history, nature and extent of the offender’s substance use or abuse; the offender’s prior access to or participation in substance abuse treatment; the offender’s employment, participation in educational or vocational programs, and need for mental health services; the availability of other sanctions; and the cost-effectiveness of incarceration. Where incarceration is not indicated for an offender, the guidelines shall require individualized treatment and rehabilitation, as appropriate.
Development of initial guidelines; changes to guidelines; other duties of the commission
The commission shall issue and transmit to the legislature its initial guidelines no later than one year after the effective date of this section. Guidelines or guideline amendments developed by the commission shall become effective on the sixty-first calendar day following transmission to the legislature unless disapproved by two-thirds of each chamber prior to that time. If guidelines are disapproved, they shall be returned to the drug sentencing commission. If guidelines of the drug sentencing commission are not then in effect, the commission shall revise its proposed guidelines and resubmit them to the legislature within one hundred twenty calendar days of the disapproval. If guidelines created by the commission are in effect at the time of the disapproval, the commission may, but need not, revise the disapproved guidelines and resubmit them to the legislature.
Copies of the guidelines shall be made available to any member of the public upon request to the secretary of state or the state court administrator, including by readily accessible electronic means.
On and after the effective date of drug sentencing guidelines developed by the commission, such guidelines shall supersede any conflicting statutory sentencing guidelines. Until the effective date of the commission’’s first set of drug sentencing guidelines, the statutory sentencing guidelines relating to drug offenses and appearing in Chapter 777 of the Michigan compiled laws (2001) shall be applied by the courts in imposing sentences for drug offenses.
The commission shall hire appropriate staff and arrange for suitable office space and equipment. The commission shall provide for the collection and analysis of data, and the publication of periodic reports, concerning the disposition of drug offenders at the state and local levels, the impact of its guidelines on crime trends and the rehabilitation of offenders, and the impact of its guidelines on the courts, the department of corrections, local jails, community corrections agencies, substance abuse treatment programs and the state budget.
Any writing prepared, owned, used, in the possession of, or retained by the commission in the performance of an official function shall be made available to the public in compliance with the Freedom of Information Act, Act 442 of the Public Acts of 1976, or successor statutory provisions.
Appropriations for the drug sentencing commission
For a period of six years after the effective date of this section, the legislature shall annually appropriate seven hundred and fifty thousand dollars by October 1 of each year to fund the activities of the commission. Thereafter, the legislature shall annually appropriate sufficient funds to ensure that the drug sentencing commission is able to fulfill its responsibilities as set forth in this section. Notwithstanding any other provision of this constitution, funds appropriated to comply with the requirements of this section shall not be subject to veto.
Abrogation of statutory sentences for controlled substance offenses; requests for resentencing
All existing statutory provisions imposing mandatory minimum terms of incarceration for the commission of any controlled substance offense under part 74 of the public health code or any substantially similar statutory provision, or which authorize lifetime probation for such offenses, are hereby abrogated upon the effective date of this section, and no statute henceforth shall provide for a minimum term of incarceration or lifetime probation for a controlled substance offense except as permitted by this section.
All statutory provisions requiring the imposition of consecutive sentences based on the fact that one or more of the sentences is for a controlled substance offense are hereby abrogated, and no statute henceforth shall provide for such imposition of consecutive sentences for a controlled substance offense.
Beginning on the effective date of this section and for two years thereafter, any person serving a mandatory minimum term of incarceration, consecutive sentences, or lifetime probation for the commission of a controlled substance offense under part 74 of the public health code, or any substantially similar statutory provision, may move for resentencing in the original sentencing court. The state court administrative office shall prepare a simple form pleading for use in moving for such resentencing. Upon receipt of such a motion, the court shall order an updated pre-sentence investigation report. The court shall decide any such motion within 180 calendar days of filing. In determining whether to grant such a motion, the court shall consider whether the previously imposed sentence is greater than the sentence the person would presumptively receive under the sentencing guidelines in effect at the time of filing and the provisions of this section. If the court determines that the presumptive new sentence would be less than the sentence previously imposed, the motion shall be granted unless the court determines by clear and convincing evidence that substantial and compelling reasons exist for departing from the applicable sentencing guidelines.
If a motion for resentencing is granted, the court shall vacate the original sentence or sentences and promptly impose a new sentence, with credit for time served, based on the sentencing guidelines then in effect. Where the sentence that is the subject of the motion is a sentence of lifetime probation or mandatory consecutive sentences, the new sentence shall be based on any applicable guidelines or, in the absence thereof, on applicable provisions of this section. All the rights attendant upon a resentencing shall apply.
Article I, Section 25.
CREATION OF DRUG TREATMENT ALTERNATIVE TO PROSECUTION OR INCARCERATION
The chairperson of the drug sentencing commission established in Article I, Section 24 shall appoint commission members to a committee, which shall develop a system of guidelines to be followed by the courts to provide offenders charged with or convicted of possessing controlled substances for personal use with the right to elect to receive treatment in lieu of prosecution or sentencing, subject to the limitations enumerated herein. A majority of the committee shall be appointed from among the following members of the commission: licensed health professionals, licensed drug treatment professionals, drug treatment program directors, nurses and the person in recovery.
Treatment shall be available to any person charged with or convicted of illegal drug possession for personal use, and no concurrent crimes except such offenses as the commission guidelines provide are to be considered incidental to a drug possession offense, for the first or second offense after enactment of this section. Persons charged with or convicted of additional crimes, or subsequent offenses of drug possession for personal use, may be offered treatment in accordance with the system developed by the committee and subject to the provisions of this section. Treatment provided under this section shall consist of individualized treatment and rehabilitation outside of a prison or jail facility.
A quorum of the committee shall consist of a majority of its members. The drug treatment system developed by the committee, and any amendments later developed by the committee, shall be presented to the commission, and shall become effective on the sixty-first calendar day following transmission to the commission unless disapproved by a two-thirds vote of the commission prior to that time.
The system mandated by this section shall be implemented and available to eligible defendants no later than September 1 of the year immediately following the effective date of this section, and shall, at a minimum:
Where a person charged with or convicted of illegally possessing controlled substances requests treatment, require the court in which prosecution or sentencing is pending to determine, based on guidelines adopted by the commission, whether the circumstances and quantity of controlled substances a person is charged with or convicted of possessing are consistent with personal use, and, where applicable, whether other concurrent offenses with which the person is contemporaneously charged shall be considered incidental to the drug possession offense and not disqualifying for purposes of determining eligibility for treatment under this section;
Exclude from treatment offered under the provisions of this section any person who has been convicted in the same proceeding of trafficking or distributing controlled substances, or manufacturing or possessing a controlled substance with intent to distribute; any person charged or convicted in the same proceeding with any felony or misdemeanor involving violence or the threat of violence; any person who, within five years of the currently charged offense, has been convicted of or imprisoned for the commission of a violent felony; any person who, in the same proceeding, is charged with or convicted of operating a motor vehicle under the influence of alcohol or a controlled substance;
Permit the court to determine, in its discretion, whether to accept a request for treatment made by a person who has been charged with or convicted of a non-violent crime in addition to drug possession, or who, on two or more previous occasions, entered into a treatment plan under the provisions of this section;
Require a defendant requesting treatment to provide limited waivers of medical and treatment confidentiality rights guaranteed by state and federal laws and regulations, as necessary to permit an assessment of the person’’s treatment needs and the sharing of objective data, such as attendance records and drug test results, with the court;
Develop procedures for professional assessment by a qualified drug treatment practitioner of each person deemed eligible for treatment, and the creation of an appropriate, individualized treatment plan by such practitioner, and procedures for the appointment of this or another qualified practitioner to serve as an independent monitor of progress in treatment and to ensure that all aspects of the treatment plan are made available;
Define treatment to include a range of substance abuse treatment services, including outpatient and inpatient therapy, narcotic replacement therapy, and additional related rehabilitation programs such as literacy training, vocational training, mental health services, and family counseling;
Limit the duration of an initial treatment plan to twelve months, unless the court finds, upon the recommendation of a qualified drug treatment practitioner, that circumstances warrant a longer period up to eighteen months;
Require the court to apply guidelines developed by the drug sentencing commission to determine responses to alleged drug-related program violations and non-drug program violations, which may include graduated sanctions, changes in the form of treatment, extension of the required period of treatment upon the recommendation of a qualified treatment practitioner, or removal from treatment; provided, however, that the court shall not remove a person from treatment or impose incarceration upon the first or second drug-related program violation while in treatment;
Any court decision to impose sanctions or remove a person from treatment shall be made only after a hearing that meets the procedural requirements for revoking an order of probation, provided, however, that a treatment provider shall not be so limited;
Provide for the court to suspend treatment, in its discretion, if a person in treatment is charged with a new criminal offense other than drug use or possession, and for the removal of such person from treatment upon conviction for such an offense;
Provide for the punishment of persons removed from a treatment plan and convicted of drug possession for personal use by a sentence of incarceration no greater than sixty days for the drug possession offense, if the offense is the offender’s first or second conviction after enactment of this section, or up to six months incarceration for drug possession for personal use for persons entering treatment after a greater number of such prior convictions;
Provide procedures for the dismissal of charges and expungement of any drug possession conviction upon successful completion of the treatment program; and
Require law enforcement agencies to keep confidential records of drug possession offenses, notwithstanding their dismissal or expungement, to be maintained for the exclusive law enforcement purposes of enabling prosecutors and the courts to have information about the number of prior illegal possession or use offenses on record for a person later charged with or convicted of illegal possession or use, and to conduct criminal record checks for persons applying for a position as a law enforcement or corrections officer.
In addition, the drug sentencing commission shall develop procedures by which a person who violates the conditions of probation or parole by engaging in substance abuse is provided with a reasonable opportunity for assessment and treatment in lieu of incarceration, if warranted by the guidelines developed pursuant to Article I, Section 24.
Appropriations for Treatment, Distribution to Local Governments; Audits and Studies
The Michigan Department of Community Health or its successor agency is hereby established as the statewide lead agency to supervise the distribution of drug treatment funds made available under this section and to provide regulations necessary for the implementation of the provisions of this section. The lead agency shall require county governments or multi-county regional bodies to establish or appoint local public health agencies as lead agencies to receive funds and implement the provisions of this section at the local level.
Notwithstanding any provision to the contrary in this constitution or any statute of this state, upon the effective date of this section, the legislature shall appropriate the sum of nine million dollars in restricted funding to the statewide lead agency to be used by treatment providers and the lead agency to prepare for implementation of the provisions of this section. For the six fiscal years after the effective date of this section, total state spending for drug treatment and related rehabilitation programs shall not be less than the total state spending for such purposes in fiscal year 2000-2001, and, by October 1 of each year, the legislature shall annually appropriate at least eighteen million dollars in additional, restricted funding to implement the purposes of this section. Commencing in the second fiscal year following the effective date of this section, the eighteen million dollar additional appropriation shall be adjusted annually by the legislature in accordance with the United States Consumer Price Index for the 12-month period ending the preceding December 31. Notwithstanding any other provision of this constitution, funds appropriated to comply with the requirements of this section shall not be subject to veto.
The statewide lead agency may retain up to five percent of the funds appropriated for drug treatment programs under this section for administration, and up to two percent of the funds for studies required by this section. The remaining funds shall be distributed by the department to counties or multi-county regions using a formula based on need. Counties or multi-county regions receiving such funds shall designate health-related lead agencies, councils or bodies to receive and administer such funds. All such recipients shall conduct public meetings and shall annually submit a plan that is a public record to the statewide lead agency regarding the use of such funds. At least ninety percent of the funds received by each county or multi-county region must be used to provide treatment and rehabilitation services. Any appropriated funds not allocated directly for treatment may be used only for non-treatment costs directly related to treatment programs required under this section. The statewide lead agency shall issue regulations regarding the use of funds unspent by counties or multi-county regions, provided that such funds further the purposes of this section.
The statewide lead agency shall annually conduct an audit of funds provided under this section and collect and publish data on the numbers and types of offenders receiving treatment under this section, their demographic profiles, and success rates, and any further evaluations of the effectiveness and financial impact of the treatment programs implemented under this section. In addition, the statewide lead agency shall annually allocate up to one-half of one percent of the total appropriation required by this section for a long-term study to be conducted by a public university in Michigan to evaluate the effectiveness and financial impact of the programs funded to provide eligible persons with treatment.
Limitation on Incarceration Without Treatment Alternative
No person eligible for treatment in lieu of prosecution or incarceration under the terms of this section may be sentenced to a term of incarceration after September 1 of the year immediately following the effective date of this section, unless such person has first been provided an opportunity for treatment under the terms of this section and such person has elected not to receive treatment, or such person has been removed from treatment under guidelines established by the drug sentencing commission.
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