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Sarissa Montague

Michigan Court of Appeals rules in favor of inmate

Michigan Parole Board must consider Kalamazoo man for parole

KALAMAZOO, Mich. – Oct. 22, 2015 – In a case that could affect as many as 200 inmates in the state, the Michigan Court of Appeals ruled Wednesday, Oct. 21, that the Michigan Parole Board must consider parole for a habitual offender who earned disciplinary credits without first receiving permission from his sentencing judge. 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 minimum release date for Hayes is July 5, 2017, but with disciplinary credits, his potential release date was Oct. 2, 2013. However, the state Parole Board refused to hear Hayes’ case, arguing it had no obligation to consider parole until a Kalamazoo Circuit Court judge gave written approval.

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 practice left many inmates in limbo, not able to make use of their earned disciplinary credits,” explained attorney Sarissa Montague of Levine & Levine. “Until today, the Michigan Parole Board only considered disciplinary credits if the sentencing judge approved them, but the Michigan Department of Corrections instructs inmates not to contact their sentencing judge about parole prior to their release date.”

Hayes agreed with Judge Giguere and 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 Judge 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 broader implications; a significant number of prisoners are now going to be able to come before the Parole Board for parole consideration,” Montague said.

The decision will allow an estimated 100 to 200 habitual offenders in Michigan to be considered for parole, but not necessarily granted early release.
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Levine & Levine is renowned in the legal community throughout Michigan and beyond, for offering compassionate, professional and thoughtful representation in addition to experienced and aggressive advocacy. Since 1987, the firm has provided highly effective representation to individuals and businesses. Levine & Levine specializes in criminal defense, family law, business law, appeals, and estate planning.

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