Part III—Probation and Alternatives to Incarceration

8.10Probation and Sex Offenders1 

A.Mandatory Conditions of Probation

Except for the nonprobationable offenses in MCL 771.12 and as otherwise provided by law, a court may place an individual convicted of a listed offense3 on probation for any term of years but not less than five years and with certain conditions. MCL 771.2a(7). Mandatory and discretionary conditions appear in MCL 771.2a(8)-(13). Except as provided in MCL 771.2a(9)-(13), the court must order an individual placed on probation under MCL 771.2a(7) not to reside, work, or loiter within a student safety zone. MCL 771.2a(8).

B.Exceptions to School Safety Zone Prohibitions

There are exceptions to the mandatory probation conditions concerning student safety zones. Under the circumstances described below, the prohibitions required by MCL 771.2a(8) do not apply to individuals convicted of a listed offense.

1.Residing Within a Student Safety Zone

The court must not prohibit an individual on probation after conviction of a listed offense from residing within a student safety zone, MCL 771.2a(8)(a), under any of the following circumstances described in MCL 771.2a(9):

“(a) The individual is not more than 19 years of age and attends secondary school or postsecondary school, and resides with his or her parent or guardian. However, an individual described in this subdivision must be ordered not to initiate or maintain contact with a minor within that student safety zone. The individual must be permitted to initiate or maintain contact with a minor with whom he or she attends secondary school or postsecondary school in conjunction with that school attendance.

(b) The individual is not more than 26 years of age, attends a special education program, and resides with his or her parent or guardian or in a group home or assisted living facility. However, an individual described in this subdivision must be ordered not to initiate or maintain contact with a minor within that student safety zone. The individual must be permitted to initiate or maintain contact with a minor with whom he or she attends a special education program in conjunction with that attendance.

(c) The individual was residing within that student safety zone on January 1, 2006. However, if the individual was residing within the student safety zone on January 1, 2006, the court shall order the individual not to initiate or maintain contact with any minors within that student safety zone. This subdivision does not prohibit the court from allowing contact with any minors named in the probation order for good cause shown and as specified in the probation order.”

In addition to the above exceptions, the prohibition against residing in a student safety zone, MCL 771.2a(8)(a), does not prohibit a person on probation after conviction of a listed offense from “being a patient in a hospital or hospice that is located within a student safety zone.” MCL 771.2a(10). The hospital “exception does not apply to an individual who initiates or maintains contact with a minor within that student safety zone.” Id.

2.Working Within a Student Safety Zone

If an individual on probation under MCL 771.2a(7) was working within a student safety zone on January 1, 2006, he or she cannot be prohibited from working in that student safety zone as indicated in MCL 771.2a(8)(b). MCL 771.2a(11). If a person was working within a student safety zone on January 1, 2006, “the court shall order the individual not to initiate or maintain contact with any minors in the course of his or her employment within that student safety zone.” Id. However, for good cause shown and as specified in the probation order, a court is authorized to allow the probationer to have contact with any minors named in the probation order. MCL 771.2a(11).

If an individual on probation under MCL 771.2a(7) only intermittently or sporadically enters a student safety zone for work purposes, the court must not impose the condition in MCL 771.2a(8)(b) that would prohibit the person from working in a student safety zone. MCL 771.2a(12). Even when a person “intermittently or sporadically” works within a student safety zone, he or she must be ordered “not to initiate or maintain contact with any minors in the course of his or her employment within that safety zone.” Id. For good cause shown and as specified in the probation order, the court may allow the probationer contact with any minors named in the probation order. Id.

C.Stalking Offenses and Probation

1.Stalking

An individual convicted of violating MCL 750.411h (stalking) may be sentenced to no more than five years of probation. MCL 771.2a(1); MCL 750.411h(3). A probationary period imposed for a stalking conviction is subject to the terms and conditions of probation contained in MCL 750.411h(3) and MCL 771.3. MCL 771.2a(1). MCL 750.411h(3) permits a court to order a defendant sentenced to probation for stalking to:

•refrain from stalking any person during the term of probation;

•refrain from any contact with the victim of the offense for which the defendant was placed on probation;

•be evaluated to determine whether the defendant needs psychiatric, psychological, or social counseling; if the court determines counseling is appropriate, the defendant must receive the indicated counseling at the defendant’s own expense. MCL 750.411h(3)(a)-(c).

2.Aggravated Stalking

An individual who is sentenced to probation for a violation of MCL 750.411i (aggravated stalking) may be sentenced to probation for any term of years, but the court must sentence the individual to a term of probation of not less than five years. MCL 771.2a(2); MCL 750.411i(4). A probationary period imposed for an aggravated stalking conviction is subject to the terms and conditions of probation contained in MCL 750.411i(4) and MCL 771.3. MCL 771.2a(2). MCL 750.411i(4) authorizes a court to order a defendant who is sentenced to probation to:

•refrain from stalking any person during the term of probation;

•refrain from any contact with the victim of the offense for which the defendant is placed on probation;

•be evaluated to determine whether the defendant needs psychiatric, psychological, or social counseling; if the court determines it is appropriate, the defendant must receive the indicated counseling at the defendant’s own expense. MCL 750.411i(4)(a)-(c).

D.Sex Offenders Exempted from Probation

Even if a person was convicted of a listed offense, MCL 771.2a(13) permits the court to exempt that person from being placed on probation under MCL 771.2a(7) if either of the following circumstances apply:

“(a) The individual has successfully completed his or her probationary period under [the youthful trainee act, MCL 762.11–MCL 762.15,] for committing a listed offense and has been discharged from youthful trainee status.[4]

(b) The individual was convicted of committing or attempting to commit a violation solely described in [MCL 750.520e(1)(a)], and at the time of the violation was 17 years of age or older but less than 21 years of age and is not more than 5 years older than the victim.” MCL 771.2a(13).

E.Reducing a Term of Probation5

“Except as provided in [MCL 771.2(10)], [MCL 771.2a], and [MCL 768.36], after the defendant has completed 1/2 of the original felony or misdemeanor probation period, he or she may be eligible for early discharge as provided in this section.”6 MCL 771.2(2).

MCL 771.2(10) disqualifies certain defendants from receiving reduced probation. “A defendant who was convicted of 1 or more of the following crimes is not eligible for reduced probation under this section:

(a) A domestic violence related violation of . . . MCL 750.81 [assault and/or battery], or MCL 750.81a [aggravated assault], or an offense involving domestic violence as that term is defined in . . . MCL 400.1501.

(b) A violation of . . . MCL 750.84 [assault with intent to do great bodily harm less than murder or assault by strangulation or suffocation].

(c) A violation of . . . MCL 750.411h [stalking].

(d) A violation of . . . MCL 750.411i [aggravated stalking].

(e) A violation of . . . MCL 750.520c [CSC-II].

(f) A violation of . . . MCL 750.520e [CSC-IV].

(g) A listed offense.

(h) An offense for which a defense was asserted under [MCL 768.36 (insanity)].

(i) A violation of . . . MCL 750.462a to [MCL] 750.462h [human trafficking], or former [MCL 750.462i or MCL 750.462j].” MCL 771.2(10).

1    For a comprehensive discussion of probation, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 9.

2   The nonprobationable offenses are murder, treason, CSC-I, CSC-III, armed robbery, or major controlled substance offenses. MCL 771.1(1).

3    See Chapter 9 for a comprehensive discussion of listed offenses and the SORA.

4    See Section 8.12 for information on youthful trainee status. For a comprehensive discussion of youthful trainee status see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 9.

5   The court must consider the restitution ordered, if any, before granting early release. See MCL 771.2(5) and MCL 771.2(7). In some cases the victim must be informed of hearings and other court procedures. See MCL 771.2(7) and MCL 771.2(8). See the Michigan Judicial Institute’s Crime Victim Rights Benchbook, Chapter 5, for more information.

6   For more information about early discharge from probation, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 9.