Terms of Probation

After SB 1050, the terms and conditions of probation have changed. A person convicted of a violent felony may be sentenced to probation for no more than five years, with exceptions for aggravated stalking (probation must be at least five years) and juveniles committed to an institution or agency. If the defendant was convicted of a non-violent felony, probation can be no longer than three years (previously, five years), and for non-felonies, no longer than two years.

The court may extend the probation of a felon for one year, but not more than twice unless the court finds that the probationer has not reached a particular rehabilitative goal or that a specific, articulable, and ongoing risk of harm to a victim can be mitigated only with continued probation supervision. The inclusion of words like “particular,” “specific,” and “articulable” show that the legislature wanted to limit the power of the courts to extend probation to those occasions when probation serves a designated purpose and not just when extension served a general penal purpose.

SB 1050’s changes to Michigan’s probation laws show that the legislature intended the courts to place more emphasis on rehabilitation than punishment in ordering probation. SB 1050 requires the court, in stating the terms and conditions of probation, to include rehabilitative goals for the probationer. The law requires the court to individually tailor the terms and conditions of probation to the probationer, assess the risks and needs of the probationer, design the terms and conditions to reduce recidivism, and adjust the terms if the court determines that adjustments are appropriate. The courts must consider other factors, such as the input of the victim, the harm caused to the victim, other safety needs, and concerns such as restitution.

  1. Terms of Probation
  2. Early Discharge from Probation
  3. Revocation of Probation

Early Discharge from Probation

SB 1050 also changed the rules for when and how a probationer may be discharged from probation prior to the expiration of the term set by the court. After an offender has completed half of his or her probation (whether convicted of a felony or a misdemeanor), he or she may be eligible to have his or her probation terminated.

Some probationers are not entitled to early termination of their probation. This includes those who committed the following offenses:

  • Domestic violence or an offense involving domestic violence
  • Assault with intent to do great bodily harm less than murder
  • Harassment
  • Aggravated stalking
  • Criminal sexual conduct in the 2nd degree or 4th degree
  • A “listed” offense, which includes offenses that require registration under the sex offender’s act
  • Certain forms of kidnapping, extortion, forced labor, or human trafficking

SB 1050 did away with the procedure whereby the probation department notified the court that the offender had completed half of his or her probation and the court held a hearing to determine discharge based on the offender’s conduct and behavior while on probation. Now, if the probationer has completed half of his or her probation and all of his or her programming (participation in behavioral-based programs such as counseling, addiction treatment, or anger management courses), either the probation department or the probationer (if he or she has not committed a probation violation in the last three months) may inform the court of the probationer’s eligibility for early release. A court also has discretionary authority to consider early release on its own.

If the court determines, after reviewing the probationer’s conduct on probation, that the probationer should be discharged early, it may discharge the probationer without a hearing unless the probationer is serving probation for:

  • a felony offense committed against a person who requested to receive notice under the crime victim’s rights act (William Van Regenmorter Act) or
  • a misdemeanor against a victim for
    • assault and battery
    • assault with serious infliction of injury, including injury to a spouse, a former spouse, or someone with whom he or she had a dating relationship
    • child abuse

In the latter cases, the court must hold a hearing on the release of the probationer from probation.

In determining whether to release a probationer early, the court may not deny termination of probation because of the probationer’s inability to pay fees, fines, or costs if the probationer has made “good faith” efforts to pay. The court must consider the impact that early release would have on the probationer’s ability to pay restitution. The court, in its discretion, may grant early discharge or keep the probationer under probation with the sole condition that the probationer continue to make payments towards restitution.

While the court does not have to hold a hearing if it decides to terminate probation (except in the limited cases mentioned above), it must hold a hearing if it denies a request for early discharge from probation. The court must allow the probationer to present evidence of his or her conduct and state why he or she is entitled to discharge. In making its decision, the court must identify on the record any rehabilitative goals that the probationer has not met or the specific, articulable, and ongoing risk of harm to a victim that can be mitigated only by continued probation. This shows hat SB 1050 favors termination of probation unless the court has a good reason for denying it.

  1. Terms of Probation
  2. Early Discharge from Probation
  3. Revocation of Probation

Revocation of Probation

SB 1050 changed the rules on revocation of probation as well. In Michigan, the law used to be that probationers had no right to continuation of probation, and a court could revoke probation if it determined that the probationer was likely to commit another offense or if the public good required it. The court could revoke probation in any manner it considered “applicable” for a violation of the terms of probation or other “anti-social” conduct Now, the procedure for revocation is much clearer and based on objective factors.

Revocation of probation and incarceration of the offender may occur only for “repeated technical violations, new criminal behavior, … or at the request of the probationer.” Technical violations are violations of the terms of the probation, but do not include:

  • Violation of an order prohibiting the probationer from having contact with a person
  • A new violation of law
  • Consumption of alcohol by a person who was convicted of or pleaded guilty to a DUI offense
  • Absconding, which means that the probationer failed to report to his or her supervising agent or failed to let the agent know where he or she would be for a period of six months or more

For the above infractions, probation may be revoked immediately. Otherwise, technical violations of the terms of probation result in incarceration as follows:

  • If the probationer was guilty of a misdemeanor:
    • 1st violation, jail incarceration for not more than 5 days
    • 2nd violation, jail incarceration for not more than 10 days
    • 3rd violation, jail incarceration for not more than 15 days
    • 4th and subsequent, any number of days in jail incarceration as determined by the court, not to exceed the number of days left in the original sentence
  • If the probationer was guilty of a felony:
    • 1st violation, jail incarceration for not more than 15 days
    • 2nd violation, jail incarceration for not more than 30 days
    • 3rd violation, jail incarceration for not more than 45 days
    • 4th and subsequent, any number of days in jail incarceration as determined by the court, not to exceed the number of days left in the original sentence

A jail sanction can be extended to no more than 45 days if probationer is awaiting placement in a treatment facility and has no safe place to stay.

These rules prevent a probationer who commits a violation from being confined in jail incarceration for the remainder of the term of the sentence imposed. They recognize the difficulty of complying with the complex and numerous restrictions that a probation order may contain and give the probationer every chance to comply with probation rather than being incarcerated.

While probationers are given every chance to stay out of jail, the court may revoke probation after the probationer commits his or her fourth violation. However, probation may be revoked for even one technical violation if the person is on probation for domestic violence.

SB 1050 created a rebuttable presumption that a court, when a probationer has violated the terms of probation, will not issue a warrant for arrest but will issue an order to show cause or a summons instead. The presumption is rebutted if:

  • The probationer poses a threat to himself, someone else, or the public
  • The probationer left court-ordered inpatient treatment without the permission of the court or the facility
  • A summons or order to show cause was issued and the probationer failed to appear

If the probationer ignores a summons or an order to show cause, the court may impose a sentence in addition to ordering jail incarceration for the probation violation as described above. If the probationer is arrested for a technical violation, the court must give that person a hearing “as soon as possible.” If the probationer does not get a hearing within the number of days set for jail time for the violation (as described above), he or she must be released to supervised control.

Michigan’s SB 1050 drastically changes how probation works in Michigan. The bill gives a probationer every chance to comply with probation and remain out of jail. It takes away much of the courts’ discretion in revoking probation for technical violations and replaces it with clear, understandable consequences for such violations. Rehabilitation, rather than mere punishment, control the terms of probation, and early discharge from probation is encouraged when a person demonstrates compliance with probationary requirements. To learn how these recent reforms may apply to your situation, don’t hesitate to reach out to our capable team at Spolin Law for a free consultation.