The Michigan Parole Board (the Board) granted Raymond Harold Haeger parole after he had served approximately 17 years of a 15- to 30-year sentence. The Alpena County Prosecutor objected to Haeger’s release and sought leave in the circuit court to appeal the Board’s parole decision. The circuit court ruled that the Board had abused its discretion by granting parole despite that Haeger’s probability for parole had actually declined since the Board’s last consideration. Accordingly, the circuit court reversed the Board’s decision.
We affirm the circuit court’s reversal of the Board’s decision but on different grounds. The Board failed to
I. THE PAROLE PROCESS IN MICHIGAN
The Parole Board, consisting of 10 members, is located within the Michigan Department of Corrections (DOC). MCL 791.231a(1). Prisoners come under the Board’s jurisdiction after serving their minimum sentence, adjusted for any good time or disciplinary credits. MCL 791.233(1)(b) through (d); MCL 791.234(1)
“Statutorily mandated parole guidelines form the backbone of the parole-decision process.” Elias,
A prisoner being considered for parole may also undergo an informal and nonadversarial “interview conducted by one or more Board members assigned to the prisoner’s panel.” Elias,
is a comprehensive risk and needs assessment system, which takes into account both static information (such as the prisoner’s past criminal offenses) and dynamic data (such as the prisoner’s evolving attitudes and mental condition).. ..
[A] case manager considers various characteristics of the offender and the offense and inputs scores into the
*556 COMPAS computer software program. The software generates a score ranking the offender’s statistical likelihood of violence, recidivism, success on parole, and other factors. [Id. at 520-521.]
Although “matters of parole lie solely within the broad discretion of the [Board],” Jones v Dep’t of Corrections,
II. PRIOR AND CURRENT PAROLE CONSIDERATIONS
With this framework in mind, we now consider the history of Haeger’s imprisonment and the progression of his parole reviews. In 1992, Haeger pleaded nolo contendere to breaking and entering an occupied dwelling with the intent to commit a felony inside, MCL 750.110a(2)(b), and first-degree criminal sexual con
Upon Haeger’s imprisonment, the DOC referred him for a psychological evaluation. On October 6, 1992, the evaluating psychologist noted that Haeger “was polite and cooperative, admitting to guilt of instant offense.” After conducting various diagnostic tests, the psychologist noted that Haeger’s evaluation “reflects an imma
In preparation for Haeger’s appeal of his convictions, appellate defense counsel procured another psychological evaluation of his client. On April 9, 1993, Dr. Michael Abramsky submitted a report opining that Haeger should have received a much shorter sentence for his offense. Abramsky described Haeger as “a rather shy, seclusive [sic] young man[.]” Haeger told Abram-sky that he had “blacked out” and did not remember attacking his cousin. Haeger accused the police of feeding him the details of the crime. Abramsky completed a “Hare Psychopathy Check List,” which “measures tendencies towards chronic criminality.” From that test, Abramsky noted “a gross absence of psychopathic indicators.” Specifically, Abramsky noted that Haeger “show[ed] no histoiy of pathological lying... [or] of being callous or having a lack of empathy.” Moreover, Haeger’s “behavior has always been well controlled and there is no histoiy of a loss of behavioral control.” Based on the Hare evaluation, Abramsky believed Haeger had “a low probability” of recidivism and “chronic criminality.”
Abramsky also evaluated Haeger under the Minnesota Multiphasic Personality Inventory (MMPI),
Haeger was admitted into a sexual offender therapy (SOT) program in 2000. In order to be admitted into the program, Haeger had to “[a]ccept[] responsibility for his sex crime” and “[r]ecognize[] he has a problem and needs to change.” Haeger was prematurely discharged from SOT on December 14, 2000, when he was transferred to a lower security facility. However, he completed the “Relapse Prevention” portion of the therapy. The treating psychologist indicated that Haeger’s overall progress was rated 7 on a 10-point scale, indicating “good” performance. Haeger needed a score of 9 to be considered as having achieved the goals of therapy. Haeger scored 7 points for each of the following therapeutic goals:
a. Develop a clear understanding of his responsibility for setting up and committing his sex offense.
b. Examine his offense cycle, deviancy, thinking, beliefs, feelings, self-concept and behavior that led to his sexual offense.
c. Develop and demonstrate victim empathy.
d. To honestly self-disclose to the group about his deviant sexual behavior.
e. Examine his sexuality, morals, values, social and sexual relationship.
f. Develop a practical relapse prevention plan.
g. Learn self-control skills to shut down his deviant arousal pattern.
The treating psychologist concluded that Haeger “has made a positive effort to examine himself in a reflective manner. He has achieved a good understanding of his responsibility in the offense, offense cycle, victim em
Haeger began working in the prison’s food service department in 2001. Haeger’s supervisors consistently gave him excellent reviews. Haeger was even commended for voluntarily transferring to a higher security, neighboring facility so he could continue to work while the lower security facility’s kitchen was being remodeled.
Because of good-time credits, Haeger first became eligible for parole in 2004, after serving approximately 12 years of his original 15-year minimum sentence. In preparation for the Board’s first parole review, a DOC staff member prepared a PER. Consistently with regulatory requirements, Haeger’s 2004 PER noted that he had no major misconduct tickets, “interact[ed] well with staff and peers,” and “presented] no management problems.” The report further indicated that Haeger “received above average work evaluations” and was on a waiting list to attend a job-seeking-skills class. Haeger participated in Alcoholics Anonymous from 1992 through 1994 and completed a “Substance Abuse Phase II” program in 2002. The PER noted that Haeger had completed SOT on December 14, 2000. Overall, Haeger had “completed all. . . recommended programs” and “at least
Using Haeger’s file and PER, the Board then calculated Haeger’s parole guidelines score. Under the parole guidelines, a prisoner is assigned positive or negative points for variables in eight categories. These points are aggregated to reach a “Final Parole Guidelines Score” that determines whether a prisoner’s probability of parole is high, average, or low. See DOC Policy Directive
The Board again denied Haeger parole on July 13, 2005. Haeger continued to score +6 points on the parole guidelines, but the panel noted that Haeger “has not demonstrated enough insight into his crime, [Haeger] showed little or no empathy for the victim, which indicates that [Haeger] has not gainfed]
On June 27, 2006, the Board denied Haeger parole a third time. Haeger’s parole-guideline score had increased to +7 points because he was assigned an additional point for his age variable. Moreover, the PER prepared for the Board’s review indicated that Haeger had an above average work record while imprisoned and received excellent reports from the cellblock guards. As its substantial and compelling reasons for denying parole, the panel noted the following: “[Haeger] minimizes his behavior based on his being drunk. This was a very deliberate, planned rape. [Haeger] laid in hidding [sic]. Used a mask. The [victim] was his cousin. He presents a belief that his victim is fine and didn’t suffer any injury. No insight or remorse.” The Board recommended that Haeger “demonstrate responsible behavior by earning positive” program reports and “by avoiding” misconduct citations. The Board further recommended that Haeger participate in DOC-sanctioned activities, “enter into or continually involve [him]self in substance abuse programming,” and “identify and develop community resources to address special needs identified through group therapy.”
On June 21, 2008, the DOC conducted a COMPAS risk assessment of Haeger. That assessment indicated that Haeger was a low risk for violence, recidivism, and future substance abuse and could likely secure employment, maintain housing, and manage his finances once released. On the COMPAS Cognitive Behavioral/Psychological scale, Haeger scored 2 points, indicating that he was unlikely to “blam[e] others, mak[e] excuses or mini
The Board denied parole a fourth time on August 4, 2008. The panel indicated, “In spite of the completion of recommended [SOT], [Haeger] lacks the necessary insight into his deviant behavior. [Haeger] is still considered a risk to the general public safety.” At that time, the Board continued Haeger’s sentence for a 24-month period before reconsidering parole. The Board again recommended that Haeger “demonstrate responsible behavior by earning positive” program reports and “good block or staff reports of conduct” and “by avoiding . . . misconduct citations.” The Board also continued to recommend that Haeger “enter into or continually involve [him]self in substance abuse programming.”
On November 5, 2008, Haeger committed his first and only major misconduct while imprisoned. Haeger pleaded guilty at an administrative hearing of possessing dangerous contraband. Specifically, guards found within Haeger’s cell various metal objects, which Haeger claimed to use for “fix[ing] electronic devices.” As a
On February 11, 2009, Haeger was evaluated under the Vermont Assessment of Sex Offender Risk (VASOR) scale.
The [VASOR] is a risk assessment scale for adult male sex offenders age 18 and older. It was originally designed to assist probation and parole officers in making placement and supervision decisions. Because the VASOR does not provide a comprehensive survey of all factors relevant to sexual offending, it is best used as a decision aid along with professional judgement [sic] and other appropriate tools. Although reliability and validity studies are encouraging, it still should be considered an experimental instrument.
The VASOR is composed of two scales, a 13-item reoffense risk scale and a 6-item violence scale. The reoffense risk scale is designed for assessing the likelihood of sexual recidivism. The violence scale is designed for assessing the nature of an individual’s violence history and offense severity. The interaction of these variables, reoffense risk and violence, are considered important factors for determining an individual’s overall risk level.
The scoring process ideally should include an interview with the individual, in addition to carefully reviewing correctional case file information.
Scores on the two VASOR scales are plotted on a scoring grid where their intersection falls into one of three risk categories; low, moderate, or high. These risk categories can be used to inform placement and supervision decisions. Offenders who score in the “low” range (i.e., low reoffense risk score and low violence score) are generally considered appropriate for community supervision and treatment.*565 Offenders who score in the “moderate” range may or may not be considered appropriate for community placement. Offenders who score in the “high” range (i.e., high reoffense risk score and/or high violence score) are generally considered inappropriate for community supervision and treatment. For public protection purposes, incarceration is generally recommended for offenders who score in the “high” range. [McGrath & Hoke, Vermont Assessment of Sex Offender Risk Manual (Research ed, 2001), p 1 (citations omitted). ][10 ]
Notably, VASOR is “designed to be scored easily by probation and parole officers and correctional caseworkers.” Id. at 2. A psychologist need not perform a prisoner’s evaluation under this test.
On the VASOR reoffense-risk scale, Haeger received 10 points for the use of a potentially deadly weapon, 5 points for committing a sexual offense against an acquaintance, 5 points because his alcohol abuse had caused serious life disruptions and 3 points because his “drug” use had caused some legal and social problems.
On April 21, 2009, the DOC prepared an “Offender Supervision Summary Report” and scored Haeger’s parole guidelines. The summary report noted that Haeger posed a “middle to potential high” assaultive risk and a low risk for property crimes. The DOC scored Haeger’s parole guidelines as a long-term offender. Haeger received a weighted score of -1 point for his active sentence variables and +1 point for prior criminal record variables. While Haeger had previously received favorable scores on the institutional conduct variables, his 2008 major misconduct reduced this section score to zero points. The DOC noted that Haeger’s placement in the risk categories for assaultive and property crimes required a score of +1 point for the statistical risk variables. Haeger received a score of +2 points on the age scale, reflecting that Haeger was less likely to engage in further criminal activity given his more mature age. Haeger had received at least one adequate report and no inadequate reports from recommended prison programs, which also equated with a score of +2 points. Because Haeger had committed a sexual assault, he was given -5 points under the mental-health variables. Because of his recent major misconduct, Haeger’s overall parole-guideline score was reduced to zero points, placing him, for the first time, in the “average probability of parole” category.
We presume that the Board’s reference to the “In-Reach Phase” means completion of “in-reach programming [provided] to prisoners eligible for parole.” DOC Policy Directive 03.02.101, ¶ A. In order to receive “in-reach programming,” a prisoner must be transferred to a facility that provides such services. Id., ¶ E. Haeger is currently housed in the Cooper Street Correctional Facility and was previously housed in the Pugsley and Ryan Correctional Facilities, which are all designated MPRI “in-reach facilities.” Id., Attachment A. The record does not identify the type of services provided to Haeger. However, a September 30, 2009 “referral” indicates that Haeger had completed “programming.”
III. CIRCUIT COURT REVIEW OF THE PAROLE BOARD’S DECISION
The Alpena County Prosecutor appealed the Board’s grant of parole in the circuit court. The circuit court initially determined that the Board had not provided sufficient information regarding its decision to grant parole and, therefore, the court was unable to adequately review the Board’s decision. On September 1, 2009, the court remanded the matter to the Board “for reconsideration and, if necessary, a more complete explanation of why it is convinced Mr. Haeger ‘will not
The prosecution renewed its application for leave to appeal, noting the lack of positive record evidence since the 2008 parole denial. On January 25, 2010, the Board finally provided the court with affidavits from the panel members explaining their decision to grant parole to Haeger. Charles Brown stated that he interviewed Haeger in May 2009, and he felt that “Haeger demonstrated insight, empathy, and responsibility for the crime he was involved in.” Haeger admitted to Brown “that he raped his cousin after breaking into her home” and indicated that he “wanted to show [he] was a man.” Brown further stated that “Haeger made it clear that he had learned his triggers by attending [SOT], and was blunt, honest, and candid about what he did, including acknowledgement that he had threatened to kill the victim.” Brown indicated that he reviewed the COMPAS and VASOR assessments, which described Haeger as a low risk to sexually reoffend. Brown noted that Haeger “was also required to attend additional [SOT] before parole was finalized. He completed this program successfully on September 30, 2009. ”
Ultimately, the circuit court reversed the Board’s decision to grant parole to Haeger. The court provided the following justification for its decision:
[A]s noted by the Parole Board in its brief, “[t]he common theme for the denials appears to be the member’s [sic] belief that the prisoner failed to show proper insight concerning his crime.” Indeed, in spite of somewhat favorable evaluations used by the [DOC], this was typically the overriding factor in the Parole Board’s decision not to grant parole. Their denials repeated, over and over, his lack of “significant insight into the cause of his deviant behavior” and rationalization that he had been “young and immature ... and blew up”; he “showed little or no empathy for the victim”; “minimizes his behavior based on his being drunk” and went so far as to suggest that the victim “is fine and didn’t suffer any injury,” reflecting an absence of “insight or remorse”; and generally “lacks the necessary insight into his deviant behavior.” Yet even as Mr. Haeger’s major contraband violation reduced his probability of parole from “high” to “average,” the Parole Board suddenly changes its mind, on the basis of no reasons in the record, and decides that Mr. Haeger’s past history of deflecting responsibility for his actions is cured and that he now accepts responsibility for his behavior.
*570 To the extent that there are any reasons in the record at all since Mr. Haeger was most recently denied parole, they tend not to reflect well on Mr. Haeger. A COMPAS evaluation of Mr. Haeger, dated June 6, 2008, is generally positive but eviscerates its own credibility with the total disconnect between its evaluation of his Behavioral/Psychological condition (“likely absence of blaming others, making excuses or minimizing the seriousness of the offense... unlikely to lead a high risk lifestyle or make impulsive decisions”) and the accompanying “statement,” which says that Mr. Haeger has “a likely criminal personality which may include impulsiviiy, risk-taking, restlessness/boredom, absence of guilt (callousness), selfishness and narcissism, interpersonal dominance, anger and hostility, and a tendency to exploit others.” Additionally, Mr. Haeger was scored on the VASOR system, dated February 11, 2009, which graded him at a “high” risk level. Yet, with only these evaluations of Mr. Haeger as further developments of his parole eligibility, the Parole Board departed from four prior denials of parole (including its own timeline, which had scheduled a 24-month interim before reconsidering Mr. Haeger’s parole status) to suddenly grant him parole.
To be sure, Mr. Haeger has filed an extremely well-argued brief in defense of being granted parole, and the Court does not wish to trivialize his efforts at that or rehabilitation. The issue here, however, is the acceptability of the Parole Board’s actions. While Mr. Haeger may or may not have come to accept his own responsibility for what happened in 1992, there is no evidence in the record that he has. The Parole Board has consistently denied him parole on this basis, and then suddenly decides he has satisfied their standards, without any evidence of gradual improvement or the other gradations in their observations of his behavior that would be consistent with such a change of heart. Indeed, to the extent that there is anything in the record that would induce the Parole Board to change its mind, it is the extremely troubling COMPAS evaluation and the unflattering VASOR score. Ignoring these tests, or cherry-picking only the most favorable elements of them in order to rationalize what the Parole Board had previously considered to be overwhelming evi*571 dence against granting parole, is an arbitrary act which abuses the discretion vested in the Parole Board to make principled decisions. [Citations omitted.]
Following the court’s decision, the Board and Haeger both moved for reconsideration. At that time, the Board finally supplied the court with Teresa Chandler’s affidavit regarding the computer software error on Haeger’s COMPAS report. The court denied the motions for reconsideration and, as a result, Haeger remains in prison.
IV STANDARD OF REVIEW
Judicial review of the Board’s decision to grant parole is limited to the abuse-of-discretion standard. Wayne Co Prosecutor v Parole Bd,210 Mich App 148 , 153;532 NW2d 899 (1995). Either the prosecutor or the victim of an offense may appeal in the circuit court when the Board grants a prisoner parole. MCL 791.234(11); Morales v Parole Bd,260 Mich App 29 , 35;676 NW2d 221 (2003). Under MCR 7.104(D)(5) the challenging party has the burden to show either that the Board’s decision was “a clear abuse of discretion” or was “in violation of the Michigan Constitution, a statute, an administrative rule, or a written agency regulation.” An abuse of discretion occurs when the trial court’s decision falls outside the range of reasonable and principled outcomes. People v Babcock,469 Mich 247 , 269;666 NW2d 231 (2003). Importantly, a reviewing court may not substitute its judgment for that of the Board. Morales,260 Mich App at 48 . [Elias,294 Mich App at 538-539 .]
V HAEGER’S CONSTITUTIONAL CHALLENGES LACK MERIT
Haeger contends that the circuit court ordered the Board to deny him parole and thereby violated the separation-of-powers doctrine. We disagree with Haeger’s interpretation of the court’s order.
MCR 7.104(D)(8) governs the conduct of the Board after a circuit court “reverse[s] or remand[s]” a parole decision as follows:
*572 If a decision of the parole board is reversed or remanded, the board shall review the matter and take action consistent with the circuit court’s decision within 28 days. If the circuit court order requires the board to undertake further review of the file or to reevaluate its prior decision, the board shall provide the parties with an opportunity to be heard.
This Court extensively described the separation of powers between the judiciary and the Board, which is an arm of the executive branch, and the interplay of the court rule in Hopkins,
MCR 7.104(D)(8) contemplates that a Parole Board decision whether to grant parole may be reversed or the matter may be remanded. In reversing a Parole Board decision, the circuit court simply undoes it; to “reverse” means
“[t]o overthrow, vacate, set aside, make void, annul, repeal, or revoke; as, to reverse a judgment, sentence or decree of a lower court by an appellate court, or to change to the contrary or to a former condition. To reverse a judgment means to overthrow it by contrary decision, make it void, undo or annul it for error.” [Black’s Law Dictionary]
In remanding a decision to the Parole Board, the circuit court does not specifically overrule it, but simply returns it to the Parole Board for some further consideration or activity. To “remand” is
“[t]o send back. The act of an appellate court when it sends a case back to the trial court and orders the trial court to conduct limited new hearings or an entirely new trial, or to take some other further action.” [Id.]
Consistently with the definitions of “reverse” and “remand,” Hopkins held that MCR 7.104(D)(5)
*573 review the Parole Board’s decision to ensure that the board complied with the constitution, the statutory provisions, and applicable administrative rules, and, if so, that the board did not otherwise commit a clear abuse of discretion. As MCR 7.104(D)(8) contemplates, the court may reverse the Parole Board’s decision or order further action consistent with the applicable constitutional, statutory, and administrative provisions. While the court may order that the Parole Board conform its conduct to the applicable provisions, no applicable provision authorizes the court to order that the Parole Board release a prisoner on parole. [Hopkins,237 Mich App at 645-646 .]
In this case, the circuit court did not order the Board to deny Haeger parole. Rather, the court held that the Board’s decision was inconsistent with the objective factors outlined in the statutes and regulations and the record facts. The circuit court declined to simply “remand” the decision to the Board under MCR 7.105(D)(7), which provides:
On timely motion by a party, or on the court’s own motion, the court may remand the matter to the parole board for an explanation of its decision. The parole board shall hear and decide the matter within 28 days of the date of the order, unless the board determines that an adjournment is necessary to obtain evidence or that there is other good cause for an adjournment.
The court had already remanded pursuant to subrule (D)(7) on September 1, 2009, and the Board failed to adequately explain its decision. Accordingly, the court proceeded under subrule (D)(8) and reversed the Board’s decision. The Board must now “review the
We also reject Haeger’s contention that he was denied due process of law because the circuit court deprived him of his right to parole without providing an adequate opportunity to be heard.
Haeger’s argument is fatally flawed. “A prisoner enjoys no constitutional or inherent right to be conditionally released from a validly imposed sentence.” Jones,
However, a potential parolee who remains in prison has no liberty to protect. As noted by the United States Supreme Court, “parole release and parole revocation are quite different. There is a crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires.” Greenholtz,
In any event, Haeger received notice and had an opportunity to be heard before the circuit court reviewed the prosecutor’s application for leave to appeal the Board’s decision. The prosecutor notified Haeger of his intent to appeal the Board’s decision. Haeger then moved to dismiss the prosecutor’s application for leave to appeal on September 11, 2009. The circuit court granted the prosecutor’s application on November 3, 2009, and scheduled a hearing for November 25, 2009. Once the circuit court granted the application for leave to appeal, Haeger filed two separate briefs supporting the Board’s decision to grant him parole. The circuit court ultimately canceled the November 25 hearing and proceeded on the briefs alone as no party had requested argument pursuant to MCR 7.101(K), which states that, in an appeal to the circuit court, “[a] party who has filed a timely brief is entitled to oral argument by writing ‘ORAL ARGUMENT REQUESTED’ in boldface type on the title page of the party’s brief.” Haeger
VI. THE PAROLE BOARD DID NOT CONFORM ITS CONDUCT TO THE STATUTES AND REGULATIONS
Although we disagree with the reasoning employed by the circuit court, we agree with its decision to reverse the Board’s grant of parole to Haeger. MCR 7.105(D)(5)(a) provides that a prosecutor appealing a Board decision has the burden to show that the decision was entered “in violation of... a statute, an administrative rule, or a written agency regulation . . . .” From the record before this Court, it appears that the Board violated its duty to “consider [] all relevant facts and circumstances,” Mich Admin Code, R 791.7715(1), “in determining whether parole is in the best interests of society and public safety,” Mich Admin Code, R 791.7715(2).
Mich Admin Code, R 791.7715(2)(c)(iii) provides that the Board may consider a prisoner’s “readiness for release” as evinced by his or her “[development of a suitable and realistic parole plan.” Since as early as 2005, the DOC has used TAPs to assist prisoners in reaching this goal. According to an October 2005 DOC report, all state correctional facilities were scheduled to be involved in the MPRI model by September 2007.
More importantly, the Board violated the mandate of Mich Admin Code, R 791.7715(5) by making its parole decision in the absence of evidence that Haeger had participated in a psychological or psychiatric evaluation. The regulation provides that a prisoner with a history of predatory or assaultive sexual offenses must undergo such an evaluation before the Board may render a parole decision. Mich Admin Code, R 791.7715(5)(b). Haeger underwent psychological evaluations in 1992, when he entered the prison system, and in 1993, in preparation for appealing his convictions and sentences. Nothing in the record indicates that Haeger has been psychologically evaluated in the last 18 years. The information in the historical evaluations is of
Similarly, Parole Board Member Brown indicated in his affidavit that Haeger completed additional SOT in 2009 while receiving in-reach services. However, we have located no record description of any services provided to Haeger during the in-reach program. The record is also devoid of information regarding Haeger’s performance in those programs. Neither this Court nor the circuit court can properly review a Board decision on the basis of an obviously incomplete record. Regardless of fault for the omissions, Haeger’s file lacks case summary reports produced following Board interviews, any reports produced following in-reach services, or any TAP that may have been developed with Haeger. These gaps in the record support a single conclusion: that the Board granted Haeger parole in violation of controlling administrative rules and agency regulations.
Absent a complete record and an updated psychological evaluation, we cannot discern whether the Parole Board committed a clear abuse of discretion by granting parole. Accordingly, the circuit court erred by reversing the Board’s decision on that ground. We note that the circuit court did attempt to fill the holes in the record, but the Board was less than forthcoming and expedient in providing the necessary information for the court’s review. In any event, we will briefly address certain errors in the circuit court’s analysis of the Board’s actions to prevent any future error.
First, the circuit court correctly noted the internal inconsistency in the COMPAS report. The Board exacerbated the error by failing to remedy or explain the inconsistency until its motion for reconsideration of the court’s order of reversal. We do not find the presence of
Similarly, we reject the circuit court’s disregard for the current panel’s decision simply because it conflicted with the decisions of previous Parole Board panels. Each and every parole panel faces some conflicting information in making its decision. Each panel member has the discretion to consider the evidence and make a reasonable choice regarding which version of the evidence to believe. It is not an abuse of discretion for two fact-finders to reach different conclusions from the complex and potentially conflicting information within a prisoner’s record.
We further reject the circuit court’s dismissal of the Board’s analysis of various assessment scales. The COMPAS and VASOR assessments and the parole guidelines all include static and dynamic factors. Haeger cannot change the circumstances of his past offense,
[flour factors may be taken into consideration to determine the appropriateness of a sentence: rehabilitation, deterrence, the protection of society, and punishment....
.. . [T]he ultimate goal of sentencing in this state is not to exact vengeance, but to protect society through just and certain punishment reasonably calculated to rehabilitate and thereby “ ‘convert bad citizens into good citizens ....’” [Citations omitted.]
Accordingly, we disagree with the circuit court’s conclusion that the Board “cherry-picked” the most favorable aspects of Haeger’s COMPAS and VASOR assessments. Rather, the Board recognized that Haeger’s overall VASOR rating was heavily affected by the circumstances of the sentencing offense. Based on that observation, the Board gave special consideration to Haeger’s low risk of recidivism found on both assessments. The Board’s seemingly weighted consideration of Haeger’s VASOR score is supported by commentary regarding this scale. While incarceration is generally recommended for a prisoner scored as a high risk on the VASOR scale,
Ultimately, while the Board properly considered the evidence that was placed before it, it did not have a complete record on which to base the parole decision. The Board violated its regulatory duty to defer its parole decision until Haeger submitted to a psychological or psychiatric evaluation. And the Board or the DOC, or both, failed to maintain careful records documenting Haeger’s participation in services and completion of steps necessary for parole. Accordingly, we agree with the circuit court’s decision to reverse the Board’s grant of parole. This conclusion is not fatal to Haeger’s chances for parole. Rather, the Board must now ensure that it considers all necessary information in rendering its parole decision and adequately and accurately documents these steps in the record. After a thorough review as required by statute, regulation, and DOC policy directive, the Board may use its discretion to either grant or deny parole to Haeger.
Affirmed.
Notes
This Court originally denied Haeger’s delayed application for leave to appeal, People v Haeger, unpublished order of the Court of Appeals, entered July 26, 2010 (Docket No. 297099), but the Supreme Court remanded for review as on leave granted, People v Haeger,
DOC policy directives are available at <http://www.michigan.gov/ corrections/0,1607,7-119-1441_44369 — ,00.html> (accessed September 8, 2011).
The parole-guideline factors are quoted in full in Elias,
There are no case summary reports in the file submitted to this Court.
As noted, there is no TAP in the file submitted to this Court.
This document is available at <http://www.michigan.gov/documents/ THE_MPRI_MODEL_1005_140262_7.pdf> (accessed September 8, 2011).
The MMPI tests “configurations of personality traits in normal persons and. .. the personality patterns occurring in various types of mental illness.” Random. House Dictionary of the English Language: Second Edition Unabridged (1987).
A score greater than +3 points corresponds to a high probability of parole, between -13 and +3 is an average probability, and less than -13 is low. See DOC Policy Directive 06.05.100, Attachment A, p 10. Haeger was assessed -1 point for each of his active sentence variables, which reflected his use of a weapon, “threat of force” or injury, “violence or cruelty beyond that necessary to commit” the offense, and commission of a sexual offense. Haeger was assessed +1 point on his prior criminal record variables, +8 points on his institutional conduct variables, and -5 points on his mental health variables, reflecting that he had committed a sexual assault stemming from a “compulsive, deviant, or psychotic mental state.” See Mich Admin Code, R 791.7716(3)(g)(ii). Haeger received +1 point each for his age, statistical risk, and programming variables.
See Elias,
This manual is available at <http://www.csom.org/puhs/VASOR.pdf> (accessed September 8, 2011).
There is no indication in the record that Haeger ever abused any substance other than alcohol.
Nothing in the record supports this assertion.
MCR 7.104(D)(5) states:
The burden shall be on the appellant to prove that the decision of the parole board was
*573 (a) in violation of the Michigan Constitution, a statute, an administrative rule, or a written agency regulation that is exempted from promulgation pursuant to MCL 24.207, or
(b) a clear abuse of discretion.
In the circuit court, Haeger asserted that his right to due process had been violated by the prosecutor’s failure to notify him of his right to respond to the application for leave as required by MCR 7.104(D) (2)(c)(iii)(A). However, the prosecutor did notify Haeger of his rights on the required form on August 1, 2009.
The MPRI Statewide Implementation Plan: A Three-Step Approach, October 2005, available at <http://www.michigan.gov/documents/ 3-_Statewide_Implementation_Plan_140266_7.pdf> (accessed September 8, 2011).
The MPRI Model: Statements and Recommendations, p 5.
DOC Policy Directive 03.02.101, ¶ I, p 2, provides, in relation to a prisoner receiving MPRI in-reach services, that a TAP “shall be developed or updated for the prisoner, as appropriate, to identify programming and other tasks and activities that the prisoner is expected to complete in order to reduce his/her identified risks, including any specifically identified by the Parole and Commutation Board.”
McGrath & Hoke, p 1.
Id. at 6.
Id. at 7.