STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6131

February 16, 1983

CONSTITUTIONAL LAW:

Const 1963, art 5, Sec. 14--power of Governor to commute sentences of prisoners

CRIMINAL LAW:

Reduction of fixed terms of prisoners sentenced to county jails

SHERIFFS:

Authority to reduce fixed terms of prisoners sentenced to the county jail.

1982 PA 325, Secs. 6 and 7, which authorize a county sheriff to reduce the fixed sentences of prisoners committed or imprisoned in the county jail, are unconstitutional because they are violative of Const 1963, art 5, Sec. 14.

Mr. Peter C. Jensen

BORRELLO, THOMAS & JENSEN, P.C.

Saginaw County Corporate Counsel

721 South Michigan Avenue

Saginaw, Michigan 48602

As corporate counsel for the County of Saginaw, you have requested my opinion whether 1982 PA 325, Secs. 6 and 7, are constitutional.

1982 PA 325; MCLA 801.51 et seq; MSA 28.1748(1) et seq, as its title states, is an act to authorize county sheriffs to declare a county jail overcrowding state of emergency, to prescribe the powers and duties of certain judges, county sheriffs and other county officials, and to provide remedies for a county overcrowding state of emergency. 1982 PA 325, supra, became effective on February 8, 1983.

If the general prisoner population of a county jail exceeds 100 percent of its rated design capacity or a percentage of rated design capacity less than 100 percent as set by a court order prior to the effective date of the Act for a period of seven consecutive days or for a lesser number of days as set by a court, the county sheriff is required to certify the fact to the chief circuit judge, the chief district judge, and each municipal court judge in the county where the county jail is located, the chairperson of the county board of commissioners and the county executive in a county in which a county executive is elected. 1982 PA 325, supra, Sec. 2.

In the event a majority of these officials do not find the sheriff to have acted in error, within three business days of such certification, the sheriff shall declare a county jail overcrowding state of emergency as provided for in 1982 PA 325, supra, Sec. 3, and notice of the declaration is to be provided to the aforesaid officials, as well as the county prosecuting attorney and the law enforcement official of each state, county, and municipal law enforcement agency, as set forth in 1982 PA 325, supra, Sec. 4. As provided in section 5 of 1982 PA 325, supra, the persons notified pursuant to section 4 and the specified judges may attempt to reduce the prisoner population of the county jail through any available means which are already within the scope of their individual and collective legal authority, including, but not limited to, a series of alternatives set forth in various subsections of section 5.

1982 PA 325, supra, Sec. 6, provides:

In 1982 PA 325, supra, Sec. 7, the Legislature has provided:

1982 PA 325, Secs. 6 and 7, supra, are modelled after 1980 PA 519, Secs. 6 and 7; MLCA 800.76; MSA 28.1437(6); MCLA 800.77; MSA 28.1437(7), which authorized reduction in the minimum sentences of prisoners in state prisons by the Director of the Department of Corrections upon declaration of the Corrections Commission of a prison overcrowding state of emergency not found to be erroneous by the Governor. These provisions were challenged in Oakland County Prosecuting Attorney v Department of Corrections, 411 Mich 183, 195; 305 NW2d 515, 520 (1981), as violative of the constitutional authority of the Governor to commute sentences conferred by Const 1963, art 5, Sec. 14, which provides:

Relying upon Const 1963, art 4, Sec. 45, which empowers the Legislature to 'provide for indeterminate sentences as punishment for crime and for the detention and release of persons imprisoned or detained under such sentences[,]' the Michigan Supreme Court held that the power of the Governor to commute sentences is not abridged by 1980 PA 519, Secs. 6 and 7, supra, because Const 1963, art 4, Sec. 45 expressly authorizes the Legislature to "provide for release of persons imprisoned or detained under [indeterminate] sentences". Thus, the power to enact statutes providing for release of prisoners detained under indeterminate sentences was held to derive from a wholly separate constitutional grant of power found in Const 1963, art 4, Sec. 45 and the statute was constitutional.

It must be emphasized that indeterminate sentencing applies to persons convicted of a felony, the punishment for which is prescribed by law 'may be imprisonment in a state prison' only, 1927 PA 175, c 9, Sec. 8, as amended; MCLA 769.8; MSA 28.1080; 1927 PA 175, c 9, Sec. 10; MLCA 769.10; MSA 28.1082, but it should not apply to a person convicted for the commission of an offense for which the only punishment prescribed by law is imprisonment for life, 1927 PA 175, c 9, Sec. 9; MCLA 769.9; MSA 28.1081. Such persons are imprisoned in state prisons, except that some of them may be housed in county jails pursuant to contracts entered into between the Department of Corrections and the county. See, 1981 PA 48, Sec. 7(2); 1982 PA 262, Secs. 1 and 13. However, the prisoner remains under the jurisdiction of the Department of Corrections, and in event of overcrowding of a particular county jail, the contract contains an express clause which provides for its termination for any reason upon 30 days notice and as a matter of practice, the Department will remove its prisoners from a county jail upon 48 hours notice.

Persons committed for contempt of court or convicted of a crime and sentenced for a maximum of one year or less shall be sent to the county jail or to the Detroit House of Correction, and not to a state prison. 1927 PA 175, c 9, Sec. 28; MCLA 769.28; MSA 28.1097(1). Persons sentenced to a county jail for one year for a misdemeanor do not receive an indeterminate sentence. People v Leonard, 51 Mich App 368; 214 NW2d 888, lv den 391 Mich 827 (1974). A one-year jail sentence to the county jail for a felony is not an indeterminate sentence. People v Lyles, 76 Mich App 688; 257 NW2d 220 (1977).

A conviction punishable by a sentence of more than one year, even though listed as a misdemeanor under statutory provisions outside of the Code of Criminal Procedure, 1927 PA 175; MCLA 761.1 et seq; MSA 28.843 et seq, is treated as a conviction for a felony for the purpose of indeterminate sentencing.

Persons convicted of a felony may be placed upon probation and one of the conditions which may be imposed is imprisonment in the county jail for not more than twelve months, as provided in 1927 PA 175, c 11, Sec. 3; MCLA 771.3; MSA 28.1133. Such sentence, if imposed, is not an indeterminate sentence.

It must follow that persons sentenced by a court to a county jail and placed under the care and custody of a county sheriff are not serving indeterminate sentences.

The power reposed by the people in the Governor to grant commutations after conviction for all offenses, except cases of impeachment, Const 1963, art 5, Sec. 14, is limited only by the authority of the Legislature to provide for the release of persons imprisoned or detained under indeterminate sentences as punishment for crime as conferred by the people in Const 1963, art 4, Sec. 45. This gubernatorial prerogative has been 'jealously guarded' by the courts. Oakland County Prosecuting Attorney v Department of Corrections, supra, 411 Mich 183, 191; 305 NW2d 515, 518, citing People v Freleigh, 334 Mich 306; 54 NW2d 599 (1952), and People v Fox, 312 Mich 577; 20 NW2d 732; 168 ALR 703 (1945); People v Whalen, 412 Mich 166; 312 NW2d 638 (1981).

Oakland County Prosecuting Attorney v Department of Corrections, supra, is the controlling authority on the question of the power of the Legislature to authorize the release of prisoners imprisoned as punishment for crime and must be observed. The Legislature may provide only for the release of persons imprisoned as punishment for crime pursuant to indeterminate sentences.

1982 PA 325, Secs. 6 and 7, supra, empower a county sheriff to reduce the fixed sentences of persons committed to or imprisoned in the county jail in contravention of Const 1963, art 5, Sec. 14. Only the Governor has been empowered to commute such sentences.

It is my opinion, therefore, that 1982 PA 325, Secs. 6 and 7, supra, are unconstitutional because they are violative of Const 1963, art 5, Sec. 14.

Frank J. Kelley