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Changes to Probation and Sentencing Laws in Michigan - 2021

Recently the State of Michigan enacted significant criminal justice reforms concerning both misdemeanor and felony sentencing and probation. Although many of these changes are identified below, please contact me you should contact an experienced criminal defense attorney if you or a loved one are currently on probation or have been recently charged with a crime.


Sentencing


Michigan law now provides a rebuttable presumption that someone convicted of a misdemeanor, other than a serious misdemeanor, must be sentenced to a fine, community service, or other nonjail or non-probation sentence. A court may depart from this presumption if the court finds there are reasonable grounds for the departure and the court states on the record the grounds for that departure. In other words, the court is now prohibited by law from sentencing someone convicted of a non-serious misdemeanor to probation unless the court explains on the record at sentencing why it is sentencing that person to probation and that reason is considered "reasonable."


A "serious misdemeanor" is defined to include: assault and battery; domestic violence; aggravated domestic violence; assault with infliction of a serious injury; breaking and entering or illegal entry; 4th degree child abuse; contributing to the neglect or delinquency of a minor; using the internet or computer to make a prohibited communication; intentionally aiming a firearm without malice; discharge of a firearm intentionally aimed at a person; discharge of an intentionally aimed firearm resulting in injury; indecent exposure; stalking; inuring a worker in a work zone; leaving the scene of an accident; OWI or OWVI (drunk or drugged driving) involving an accident resulting in property damage or physical injury/death to another individual, including while operating a watercraft or boat; and selling alcohol to someone less than 21 years old.


The new law also changes the amount of time a court can sentence someone convicted of a misdemeanor or felony. Generally stated, the maximum probation term for most felonies is now 3-years, with certain additional extensions allowed up to 5-years. Although the new law does not eliminate the possible lifetime probation for felony stalking or certain sex offenses, probation conditions must be tailored to the assessed risks and needs of the probationer and the needs of the victim, if any. For example, a court is now required to place on the record at sentencing the specific "rehabilitation goals" for each defendant. Conditions of probation must: (1) be individually tailored to the probationer; (2) specifically address the assessed risks and needs of the probationer; (3) be designed to reduce recidivism; and (4) specifically address harm caused to the victim, the victim's safety needs and other concerns, including any request for protective conditions or restitution. Courts are also allowed to make adjustments to probation condition that they deem appropriate, keeping in mind the specific rehabilitation goals.


Probation Violations and Contempt of Court


Once you are sentenced to probation, you life changes instantaneously. For the next few months to several years, you will be required to complete a significant amount of work, pay a large amount of fines and fees, and otherwise live your life in a manner dictated by the court. Your first and most important concern should be to follow the terms of your Judgement of Sentence and Order of Probation religiously and consult with your criminal defense attorney if you have any questions or concerns. In other words, your life revolves around the orders of the court until you are discharged from probation.


Perhaps one of the most impactful changes to Michigan Law concerns probation violations and the imposition of maximum jail caps for "technical probation violations." Courts are now capped at the amount of jail time they can impose for "technical probations violations." Misdemeanor technical violations are punishable on a scale ascended per each violation by 5, 10, or 15 days of jail. A 4th technical pronation violation subjects the defendant to a possible "maximum" jail sentence, or whatever time remains on the possible maximum sentence after the imposition of prior technical violations. Felony technical violations are punishable in a similar manner, through an ascending violation scale starting with 15 days of possible incarceration for a first technical violation and increasing by 15 days for each violation until the 4th. If a 4th technical violation occurs, the Court can revoke probation and sentence the defendant up to the remaining eligible jail or prison sentence. Importantly, jail caps for technical probation violations do not apply to individuals on probation for domestic violence (any offense) or stalking (any offense).


The definition of "technical probation violation" does not include:

  • A violation of a no-contact order;

  • A violation of Michigan law, including ordinance violations, as well as the laws of another state, the United States or tribal law, whether or not a new criminal offense is charged;

  • The consumption of alcohol by a probationer who is on probation for a felony violation of MCL 257.625 (OWI, etc.)

  • Absconding, meaning the intentional failure of the probationer to report to his or her supervising agent or to advise his or her supervising agent of his or her whereabouts for a continuous period of not less than 60-days.

Probationers are allowed to acknowledge a technical violation in writing without a hearing before the court is required. If a hearing is necessary, there is now a rebuttable presumption for the court to issue a summons or order to show cause for a technical probation violation rather than a bench warrant. That presumption can be overcome and a warrant may issue if the court finds on the record a specific reason to suspect that the probationer presents an immediate danger to him/herself, others or the public; the probationer left court-ordered inpatient treatment without the court's or the treatment facility's permission; or a summons or order to show cause has already been issued for the technical violation and the probationer failed to appear as ordered.


Other recent changes to the laws regarding probation and probation violations include:

  • Probationers are now allowed to report virtually to their respective probation officers.

  • If someone sentenced for a non-serious misdemeanor fails to comply with a non-jail, non-probation sentence (i.e., community service, payment of fines and costs, etc.), the law allows the court to issue an order for that person to show cause why he or she failed to comply with the court's sentencing order. If the court finds the person in contempt, it may impose an additional sentence of jail or probation as the court finds appropriate.

  • If a sentenced person is found to be in contempt of court for the nonpayment of fines, costs, or other legal financial obligations, the court must find on the record that the person is able to comply with the payments without manifest hardship, and that the person has not made a good-faith effort to do so, before imposing an additional sentence.

  • While probation orders are revocable, the revocation of probation and subsequent incarceration should only be imposed for: (1) repeated technical violations; (2) new criminal behavior; (3) at the request of the probationer; or (4) as otherwise allowed by law.

  • Courts may no longer provide for the apprehension, detention, or confinement of probation on the basis of "conduct inconsistent with the public good.

Early Termination of Probation


A defendant ordered to either misdemeanor or felony probation may be eligible for early discharge from probation if he or she has completed over 1/2 of the original term of probation ordered by the court. Michigan law now requires that a defendant be notified at sentencing of his or her eligibility for early discharge, the requirements, and the procedures to notify the court of his or her eligibility.


If a probationer has completed all required programing, identified on the Order of Probation, and has not violated his or her probation in the immediately preceding 3-months, the probationer is eligible for early discharge, from a procedural perspective. When this occurs, the probationer may notify the probation department, who will then notify the court. A probationer is also allowed to notify the court, often through a Motion for Early Discharge of Probation, and the court itself may consider early discharge at its discretion.


Provided that the probationer has made good-faith efforts to make payments, he or she is not ineligible for early discharge simply because of an inability to pay for the conditions of probation, including outstanding court-ordered fines, fees, or costs. If there is an outstanding restitution order, the court must consider the impact on the victim and the payment of restitution before granting early discharge.


After receiving notice that a probationer is eligible for early discharge, the court will review the case and the probationer's conduct on probation to determine if their behavior warrants early discharge. The court is permitted to grant early discharge without a hearing. If, after reviewing the case, the court determines that the probationer's behavior does not warrant an early discharge, it must then conduct a hearing to allow the probationer to present his or her case for an early discharge. If there is a victim in the case, he or she must be notice and an opportunity to be heard. If the court denies the request for early discharge, the court is required to find on the record (1) a specific rehabilitation goal that has not yet been achieved; or (2) a specific, articulable, and ongoing risk of harm to a victim that can only be mitigated with continued probation supervision.


Certain crimes are not eligible for early discharge from probation, including: domestic violence (any offense); assault with intent to do great bodily harm; stalking (any offense); criminal sexual conduct in the 2nd or 4th degree; any "listed offense" (tier I, II, or II) in the Michigan Sex Offenders Registration Act; any offense for which the defense of guilty but mentally ill was asserted; and human trafficking violations


If your probation officer does not notify the court of your eligibility, for whatever reason, please contact an experienced criminal defense attorney. There are a variety of different reasons that the probation department may choose not to notify the court, including discrepancies in past actions on pronation. Furthermore, it is imperative that you thoroughly prepare for your early discharge hearing. Only a skilled and experienced criminal defense attorney will know the right time to petition the court for early discharge from probation as well as how to best address how the specific rehabilitation goals imposed at the start of your probation have been achieved.


Contact Spencer Bondy to Discuss Your Freedom


Recent changes to Michigan law concerning probation, briefly summarized above, should alleviate some concerns that typically accompany those on probation. However, while the laws appear to alleviate some concerns, only time will tell how each court will apply these changes to real world cases. Regardless, if you or a loved one are on probation, facing a probation violation, or are charged with a crime, please contact me. I often find that probation officers fail to adequately explain or even identify applicable law, let alone notify you of your defenses. Please do not fall prey to an overzealous probation officer seeking to make a name for him/herself. Contact me today and put your worries to rest.