19.5Alternative Sentences for Major Controlled Substance Offenses

Several statutory and court rule provisions require the court to consider alternative sentences for juveniles convicted under MCL 333.7401(2)(a)(i) and MCL 333.7403(2)(a)(i), which formerly imposed mandatory penalties for adults. As discussed below, however, because those mandatory penalties no longer exist, the alternative sentence requirements are no longer of any practical concern.

A.Mandatory Sentences Under Former §7401(2)(a)(i) and Former §7403(2)(a)(i)

Before 1997, any offender convicted under either MCL 333.7401(2)(a)(i) (manufacturing, creating,¹ delivering, or possessing with the intent to manufacture, create, or deliver 650 grams or more [now 1000 grams or more]² of a schedule 1 or 2 narcotic drug or a cocaine-related substance) or MCL 333.7403(2)(a)(i) (simple possession of 650 grams or more [now 1000 grams or more] of a schedule 1 or 2 narcotic or a cocaine-related substance) was subject to a mandatory sentence of nonparolable life imprisonment, without exception for juveniles.³ 

Effective January 1, 1997, 1996 PA 249 amended MCL 333.7401(2)(a)(i) and MCL 333.7403(2)(a)(i) to eliminate the mandatory penalty of nonparolable life imprisonment for juvenile offenders and to permit the court to impose an alternative sentence of imprisonment of “not less than 25 years” for juvenile offenders in designated, automatic waiver, and traditional waiver proceedings.

Effective October 1, 1998, 1998 PA 319 amended MCL 333.7401(2)(a)(i) to eliminate the mandatory penalty of life imprisonment for adult offenders with an alternative sentence option for juveniles and to instead impose a mandatory, nonparolable minimum penalty of 20 years’ imprisonment for all offenders; however, MCL 333.7403(2)(a)(i) was not similarly amended at that time, and it continued to impose a mandatory sentence of life imprisonment for adult offenders and an alternative sentence of at least 25 years’ imprisonment for juveniles.

Effective March 1, 2003, 2002 PA 665 amended MCL 333.7401(2)(a)(i)-(iv) and MCL 333.7403(2)(a)(i)-(iv) to eliminate all mandatory sentences under these subsections, as well as the provision in former MCL 333.7401(3) that made these mandatory sentences nonparolable, and to allow the imposition of a sentence of “imprisonment for life or any term of years or a fine of not more than $1,000,000.00, or both[]” against any offender under MCL 333.7401(2)(a)(i) or MCL 333.7403(2)(a)(i). Additionally, 2002 PA 665 abolished the penalty of lifetime probation for violations of MCL 333.7401(2)(a)(iv) and MCL 333.7403(2)(a)(iv).

B.Conviction Under §7403(2)(a)(i) in Designated, Automatic Waiver, or Traditional Waiver Proceedings

In designated proceedings, if a juvenile is convicted of a violation or a conspiracy to commit a violation of MCL 333.7403(2)(a)(i) (possession of 1000 grams or more of a mixture containing a schedule 1 or 2 narcotic or cocaine), “the court may impose the alternative sentence permitted under [MCL 333.7403(2)(a)(i)] if the court determines that the best interests of the public would be served.” MCL 712A.18(1)(o).

In automatic waiver proceedings, MCL 769.1(5) and MCR 6.931(E)(3) require the circuit court, when sentencing a juvenile for a violation or conspiracy to commit a violation of MCL 333.7403(2)(a)(i), to consider, in addition to an adult sentence or probation and commitment, an alternative sentence of at least 25 years’ imprisonment.

Similarly, in traditional waiver proceedings, MCL 769.1(11) requires the court, when sentencing a juvenile for a violation or conspiracy to commit a violation of MCL 333.7403(2)(a)(i), to consider, in addition to an adult sentence, an alternative sentence of at least 25 years’ imprisonment.

However, effective March 1, 2003, 2002 PA 665 amended MCL 333.7403(2)(a)(i) to eliminate the mandatory penalty of life imprisonment for adults and the alternative penalty of at least 25 years’ imprisonment for juveniles, and to allow the imposition of a sentence of “imprisonment for life or any term of years” in all cases. Therefore, to the extent that they require consideration of alternative sentences, MCL 712A.18(1)(o), MCL 769.1(5), MCL 769.1(11), and MCR 6.931(E)(3) are now of no practical import.

C.Lifetime Probation

In an automatic waiver proceeding in which the court imposes probation and commits the juvenile to state wardship, “[t]he court shall not place the juvenile on life probation for conviction of a controlled substance violation, as set forth in MCL 771.1(4).” MCR 6.931(F)(5).

However, effective March 1, 2003, 2002 PA 665 and 666 abolished the penalty of lifetime probation for violations of MCL 333.7401(2)(a)(iv) and MCL 333.7403(2)(a)(iv) and deleted the text of former MCL 771.1(4), which also authorized the imposition of lifetime probation for these offenses. Accordingly, MCR 6.931(F)(5) is no longer of any practical import.    

MCL 333.7401(4) and MCL 333.7403(3) now provide that if an individual was sentenced to lifetime probation under MCL 333.7401(2)(a)(iv) or MCL 333.7403(2)(a)(iv) “as [they] existed before March 1, 2003 and the individual has served 5 or more years of that probationary period, the probation officer for that individual may recommend to the court that the court discharge the individual from probation[,]” or “the individual may petition the court seeking resentencing[.]”

D.Probation Without Judgment of Guilt

For a limited number of controlled substance offenses, MCL 333.7411 authorizes a judge to place a defendant, with his or her consent, on probation and to dismiss the case and discharge the defendant without entering a judgment of guilt if the defendant fulfills the probation conditions. Under MCL 333.7411(1), a defendant who has no prior controlled substance convictions and no prior discharge and dismissal under §7411 may be sentenced to probation under §7411 if he or she is charged with:

•simple possession of a controlled substance under MCL 333.7403(2)(a)(v) or MCL 333.7403(2)(b)-(d),

•use of a controlled substance pursuant to MCL 333.7404, or

•possession or use of an imitation controlled substance under MCL 333.7341 for a second time.⁴

Probation conditions may include payment of a probation supervision fee, participation in a drug treatment court, and completion of a course of instruction or rehabilitative program. MCL 333.7411(1); MCL 333.7411(5). However, if a juvenile is convicted of possession or use of an imitation controlled substance for a second time, MCL 333.7341(4), the court must order the juvenile “to undergo screening and assessment by a person or agency designated by the office of substance abuse services, to determine whether the [juvenile] is likely to benefit from rehabilitative services, including alcohol or drug education and alcohol or drug treatment programs.” MCL 333.7411(6). The juvenile must pay for the costs of the screening, assessment, and any ordered rehabilitation. Id.