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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6182

August 30, 1983

CORRECTIONAL INSTITUTIONS:

Invocation of emergency powers to relieve overcrowded prisons where previous declaration of emergency not rescinded

PRISON OVERCROWDING EMERGENCY POWERS ACT:

Authority of Governor to declare prison overcrowding state of emergency where previous declaration not rescinded

The Governor may, upon appropriate certification by the Commission of Corrections, declare a prison overcrowding state of emergency in the event the population of the prison system exceeds the rated design capacity for thirty consecutive days. A formal rescission of a previous emergency declaration, which has served its purpose, is not requisite to a new declaration of emergency.

Honorable James J. Blanchard

Governor of Michigan

Executive Office

Lansing, Michigan

You have requested my opinion on the following question:

May the Governor issue an order declaring that a prison overcrowding emergency exists where a previous order declaring such emergency dated December 22, 1982 has not been rescinded?

The Prison Overcrowding Emergency Powers Act, 1980 PA 519; MCLA 800.71 et seq; MSA 28.1437(1) et seq, empowers the Governor to declare a prison overcrowding state of emergency, prescribes the power and duties of the Commission of Corrections, and provides remedies for elimination of prison overcrowding.

1980 PA 519, supra, Sec. 3, mandates the Commission of Corrections to request the governor to declare an emergency 'whenever the population of the prison system exceeds the rated design capacity for 30 consecutive days.' (Emphasis added.) In 1980 PA 519, supra, Sec. 4, the Legislature has provided:

'Unless the governor finds within 15 calendar days of the commission's request under section 3 that the commission acted in error, the governor shall declare a prison overcrowding state of emergency within that 15 days and the minimum sentences of all prisoners who have established minimum prison terms shall be reduced by 90 days by the director of the department of corrections.' (Emphasis added.)

If actions taken under 1980 PA 519, Sec. 4, supra, do not reduce the prison population to 95% of the rated design capacity, within 90 days of the date of the declaration of the prison overcrowding emergency by the Governor, 1980 PA 519, supra, Sec. 5 provides that 'the minimum sentences of all prisoners incarcerated in state prisons on that date who have established minimum prison terms shall be reduced by 90 days by the director of the department of corrections.' (Emphasis added.) 1980 PA 519, Sec. 5, supra, by its own terms, operates only on the 90th day following the declaration of emergency to prisoners whose minimum sentences have already been reduced pursuant to 1980 PA 519, Sec. 4, supra. It contains no further provision for successive sentence reductions until the point is reached where 95% of the rated design capacity is achieved.

1980 PA 519, supra, Secs. 6 and 7 require the Governor to rescind the declaration of emergency if the population of the prison system 'is reduced to 95% of the rated design capacity.' Your predecessor declared a prison overcrowding state of emergency on three separate occasions, the most recent being in December of 1982. On May 20, 1981, the Commission of Corrections requested the Governor to declare a state of emergency because the population of the prison system had exceeded the rated design capacity for over thirty consecutive days. On that same day the Governor declared a prison overcrowding emergency. Within 90 days of the declaration of emergency, the rated design capacity of the prison system was increased by the addition of a new 400 bed prison, the Huron Valley Men's Facility. The addition of that facility, together with the reduction in minimum sentences pursuant to 1980 PA 519, Sec. 4, supra, lowered the population of the prison system to 95% of rated design capacity. Thereafter, pursuant to 1980 PA 519, Sec. 6, supra, the Commission requested the Governor to rescind the declaration of emergency and on August 24, 1981, the Governor ended the prison overcrowding emergency.

The Commission of Corrections requested the Governor on May 14, 1982, to declare a prison overcrowding state of emergency because the population of the prison system again exceeded the rated design capacity for thirty consecutive days. On May 19, 1982, the Governor declared a prison overcrowding emergency. Pursuant to 1980 PA 519, Sec. 4, supra, the minimum sentences of all prisoners with established minimum prison terms were reduced by 90 days. On August 16, 1982, 90 days following the declaration of emergency, the population of the prison system exceeded 95% of the rated design capacity and the minimum sentences of prisoners were again reduced 90 days in accordance with 1980 PA 519, Sec. 5, supra. Following this second reduction in sentences, on September 9, 1982, the population of the prison system dropped below 95% of the rated design capacity and on that date the Commission of Corrections requested, as authorized by 1980 PA 519, Sec. 6, supra, that the Governor rescind the declaration of emergency. On that same day, the Governor, as provided in 1980 PA 519, Sec. 7, supra, rescinded the declaration of emergency.

On December 16, 1982, the Commission of Corrections requested the Governor to declare a prison overcrowding state of emergency because the prison population again exceeded the rated design capacity for 30 consecutive days. As provided in 1980 PA 519, Sec. 4, supra, the Governor, on December 22, 1982, declared a prison overcrowding state of emergency and the minimum sentence of all prisoners having established minimum prison terms was reduced by 90 days. The prison population did not fall to 95% of the rated design capacity and on March 22, 1983, 90 days following the declaration of emergency, the minimum sentences were again reduced by 90 days. Despite that second reduction in minimum sentences pursuant to the December 22, 1982 declaration of emergency, the population of the prison system never fell to 95% of the rated design capacity. Thus, 1980 PA 519, Secs. 6 and 7, supra, have not been triggered and the December 22, 1982 declaration of emergency has not been rescinded. Despite the most recent declaration of emergency and the reduction of sentences the population of the state prison has not fallen below 95% of the rated design capacity. It further appears that the population of the prison system may soon 'exceed the rated design capacity for 30 consecutive days' requiring the Corrections Commission to request you to declare a prison overcrowding emergency. It is in anticipation of that request that you have requested my opinion.

1980 PA 519, supra, was enacted pursuant to the Legislature's authority under Const 1963, art 4, Sec. 45 to 'provide for . . . release of persons imprisoned or detained under such [undeterminate] sentences.' In Oakland County Prosecuting Attorney v Department of Corrections, 411 Mich 183, 196-197; 305 NW2d 515 (1981), the Michigan Supreme Court described the purpose of the Act as follows:

'[T]his legislation was part of a broad-based effort at correctional reform. The purpose of the instant legislation is to reduce the intolerable level of over-crowding which characterizes Michigan's prison system . . .'

The primary rule of statutory construction is to ascertain and give effect to the intent of the Legislature. Melia v. Employment Security Commission, 346 Mich 544; 78 NW2d 273 (1956). The intent of the Legislature as determined by the Supreme Court is 'to reduce the intolerable level of overcrowding which characterizes Michigan's prison system.' 1980 PA 519, Sec. 3, supra, mandates the Commission of Corrections to request the Governor to declare a prison overcrowding emergency 'whenever the population of the prison system exceeds the rated capacity for 30 consecutive days.' 1980 PA 519, Sec. 4, supra, requires the Governor to declare a prison overcrowding state of emergency unless the Governor finds that the Commission of Corrections acted in error.

Reference to the various sections of 1980 PA 519, supra, reveals a specific method calculated to achieve and maintain a prison population level which is below the capacity of the prison system. Once the minimum sentences have been reduced a second time pursuant to the operation of 1980 PA 519, Sec. 5, supra, the declaration of emergency has been discharged and everything that could be accomplished pursuant to the Act by a declaration of emergency has been accomplished. There is no need to rescind such an order if, after minimum sentences have been reduced once pursuant to 1980 PA 519, Sec. 4, supra, and a second time pursuant to 1980 PA 519, Sec. 5, supra, the prison population fails to fall to 95% of rated design capacity. Here, although the December 22, 1982 declaration of emergency was not rescinded pursuant to 1980 PA 519, Secs. 6 and 7, supra, it, nonetheless, has, in practical effect, run its course and may be said to have terminated. In essence, the declaration has served its purpose.

It is my opinion, therefore, that the Governor may declare a prison overcrowding state of emergency in the event that the population of the prison system exceeds the rated design for 30 consecutive days upon appropriate certification by the Commission of Corrections. It is my further opinion that the formal rescission of the December 22, 1982 declaration is not requisite to a new declaration of emergency.

Frank J. Kelley

Attorney General


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