ASKED & ANSWERED: Jessica Cooper

By Jo Mathis

Legal News

In 2009, Oakland County Prosecutor Jessica Cooper spearheaded an effort by Michigan prosecutors to sue the state for a list of potential parolees. Prosecutors were upset with the attempts of former Gov. Jennifer Granholm to release eligible parolees at an accelerated pace to reduce the state's prison population.

Gov. Rick Snyder this month signed a law that says county prosecutors must be notified when prison inmates are set free.

House Bill 4703 requires that the Michigan Department of Corrections provides notice of parole release not only to the particular county prosecutor who convicted the prisoner of the felony or felonies, but also to the county prosecutor in the county in which the prisoner is being released onto parole. House Bill 4703 also specifies a ten-day period in which the notice must be sent, as well as allows the notice to be transmitted electronically.

Mathis: Why did you get involved in the issue in the first place?

Cooper: As part of their attempt to save money by reducing the number of inmates housed in prison, MDOC began an accelerated release initiative designed to expedite the parole release of inmates. MDOC referred to their rapid acceleration of release as "right sizing." I have always referred to it as "cost shifting."

Yes, people deserve a second chance. However, we were seeing situations where MDOC was releasing people convicted of violent offenses, such as murder, rape and assault with intent to murder, who, while on the eve of their parole, still posed a danger to the community. In this time of economic crises, where our police departments are decimated and where communities are without funds and job opportunities to absorb those individuals who want that second chance, the program was a financial burden for the communities and set the vast majority of parolees up for a loss.

In my county, the majority of parolees were being released into the county seat -- Pontiac. At the time, Pontiac was a city with only one-third of its police force left after budget cuts, a 30 percent unemployment rate, gang proliferation and, per the FBI, had 13 times the national average in violent crime. It was a nuclear explosion waiting to happen. Moreover, there is no amount of money that we can ascribe to the devastation and havoc the program has placed on the victims of parolees who have reoffended.

While no one can be happy about a state budget scenario where more money is spent on housing dangerous felons than is spent on education, we need to recognize that Michigan has the fewest local law enforcement personnel per capita among the states in the Great Lakes region, despite having the region's highest violent crime rate. (Source: The Council of State Governments-Justice Center, 2009.)

The majority of individuals who enter our prison system have been convicted of either extremely violent offenses, or are exceedingly habitual offenders with criminal histories that read like resumes. Prison is a last resort and the alternatives of probation, tether, or jail have been exhausted or deemed unsuitable based on the violent nature of the conviction. These are not individuals that MDOC should casually return to the community without carefully reviewing whether the danger that they posed to society still exists. The prosecutors were simply begging them to slow down and let us take a look before the massive releases.

Mathis: Was it a tough decision to sue the state?

Cooper: My decision to bring a lawsuit against the State of Michigan was the last step in a long series of attempts to obtain the information necessary to review MDOC's accelerated decisions to grant parole to Oakland County's dangerous felons. I informally asked MDOC to disclose its scheduled prisoner parole interviews. When they did not provide this information, the tri-county prosecutors traveled to Lansing to meet with then Governor Granholm to discuss our need for this information. While the governor had previously officially expressed support for our position and acknowledged our need for this information, she did not appear at the scheduled meeting. Instead, we were briefly met by the governor's deputy legal counsel and a representative from MDOC. We were given assurances that this information would be forthcoming. Six weeks later, the Director of MDOC sent us a letter telling us that they were evaluating the cost effectiveness of our request. I had numerous further contacts with both the governor's office and MDOC re-requesting the information.

It was only after the informal avenues had been exhausted that my office filed a Freedom of Information Act (FOIA) request seeking to identify the future prisoner interviews scheduled by the parole board. This request was denied, with MDOC claiming that no such information existed.

I filed a second FOIA request that asked for the information with a great deal more specificity that they, in turn, failed to answer. The lawsuit was the only vehicle I had to obtain this information. Indeed, the circuit judge who ordered MDOC to comply with our request also assessed statutory and punitive damages against MDOC.

To understand why prosecutors need advance notice of parole decisions, it is important to understand our concerns about MDOC's accelerated release initiative.

To successfully reverse a parole decision of a violent or repeat offender, a parole appeal must meet the very high burden of showing that the parole board abused its discretion in granting the parole. MDOC's prisoner files are extremely voluminous and require a great deal of time to individually review and to perform the due diligence required before bringing a parole appeal challenge in the circuit court. For this reason, prosecutors need advance notice of parole considerations.

Further, to render the vast number of parole release decisions necessary to implement MDOC's accelerated release initiative, the parole board's review of individual cases became sloppy and, quite frankly, superficial. Numerous errors have been found throughout MDOC's parole release decisions and standardized evaluations have supplanted individualized prisoner evaluations.

For example, MDOC had begun using assessments such as "VASOR," a sexual offender evaluation that MDOC admits is "experimental." To hasten the evaluation and processing of sexual offenders even further, MDOC also uses a sexual offender evaluation caller "RRASOR." The first "R" in RRASOR is for "rapid," as this evaluation uses only four very problematic questions to determine whether a sexual offender is likely to reoffend, i.e. the RRASOR evaluation presumes that if a sexual offender is over 25 years old, has not molested same sex victims or has only victimized family members, the offender is presumed to not be likely to reoffend in the eyes of RRASOR. These "presumptions" are regularly contradicted in the real world.

Likewise, MDOC uses an evaluation termed "COMPAS" to determine what therapy a prisoner requires in prison, whether that prisoner constitutes a risk of reoffending if released and what level of parole supervision the offender would need if paroled (i.e. whether they should report in person or via phone). One of the problems with COMPAS is that the information used in the COMPAS evaluation is self-reported by the prisoner. You don't need to be a prosecutor to realize that prisoners may not honestly disclose information when that information is used to determine if they should be paroled and the level of supervision the prisoner will experience when paroled. As a result of relying upon self-reported information, prisoners with very violent and often habitually violent criminal histories are not only categorized as not needing assaultive offender therapy services while in prison, but these prisoners are often placed on phone-in reporting on parole due to their alleged "low" risk to the community.

Mathis: Was there much opposition to the law?

Cooper: House Bill 4703 passed through the House with a vote of 105 "yeas" to 4 "nays." This bill passed the Senate with a vote of 36 "yeas" to 0 "nays."

Mathis: Are there any other victims' rights laws you wish Michigan would pass?

Cooper: When House Bill 4703 was created, it was introduced with a companion bill, House Bill 4704. While House Bill 4703 was passed quickly by the Legislature, companion House Bill 4704 has remained in the House Judiciary Committee since June 1, 2011.

The provisions of House Bill 4703 are good "baby steps" towards providing prosecutors the necessary notice to properly perform their duty to review and ultimately challenge inappropriate parole release decisions. However, the terms of House Bill 4704 would provide far more necessary and far more important parole-related information to county prosecutors.

Under House Bill 4704, MDOC would be required to give county prosecutors notice identifying which prisoners were scheduled for prisoner parole interviews. This notice would be given at least 42 days before the prisoner interview. Not only would the county prosecutors be given advance notice of prisoner parole interviews, but the county prosecutors would be afforded an opportunity to appear at these hearings and provide the parole board with information relevant to the potential parole of the prisoner. Without this opportunity, the only source of information currently available to the parole board to provide details of the crimes and criminal history that led to the incarceration of the prisoner, aside from the questionable self-reported information from the prisoner, is the minimal summary-type information contained in the prisoner's pre-sentence investigation report. Allowing county prosecutors an opportunity to present additional information to the parole board on particular cases would have the result of ensuring that the parole board is given all necessary information before a decision to grant or deny parole is reached.

Published: Fri, Oct 28, 2011

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