5.3Pretrial Release1
Detailed information about pretrial release—the constitutional right to pretrial release and exceptions to that right, types of pretrial release, conditional release, money bail, bond and interim bond, violating release conditions, denial of pretrial release, custody decisions, and appealing a court’s disposition of a defendant’s pretrial release appear in the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 8.
1.Electronic Monitoring Device Requirements
Under MCL 765.6b(6), a court may order a defendant charged with a crime involving domestic violence, or any other assaultive crime (includes specific CSC offenses), to wear an electronic monitoring device as a condition of release.2 MCL 765.6b(6).
2.Prohibitions Involving Firearms
A pretrial release order or amended order issued under MCL 765.6b(1) may prohibit a defendant from purchasing or possessing a firearm. MCL 765.6b(3).3 If the defendant is ordered to carry4 or wear an electronic monitoring device as provided in MCL 765.6b(6), the court must include a condition in the defendant’s pretrial release order prohibiting him or her from purchasing or possessing a firearm. MCL 765.6b(3).
Note: Federal law also prohibits a defendant convicted in any court of a crime punishable by more than one year, including misdemeanor crimes involving domestic violence, from possessing firearms. 18 USC 922(g).5
The court may deny pretrial release to a defendant charged with CSC-I “if the court finds that proof of the defendant’s guilt is evident or the presumption great, unless the court finds by clear and convincing evidence that the defendant is not likely to flee or present a danger to any other person.” MCR 6.106(B)(1)(b). The court may also deny pretrial release to a defendant charged with commission of a violent felony and:
“[A] at the time of the commission of the violent felony, the defendant was on probation, parole, or released pending trial for another violent felony, or
[B] during the 15 years preceding the commission of the violent felony, the defendant had been convicted of 2 or more violent felonies under the laws of this state or substantially similar laws of the United States or another state arising out of separate incidents, if the court finds that proof of the defendant’s guilt is evident or the presumption great.” MCR 6.106(B)(1)(a)(ii).
1.Defendant’s Right to a Speedy Trial6
Defendants have a constitutional and statutory right to a speedy trial. US Const, Am VI; Const 1963, art 1, § 20; MCL 768.1; see also MCR 6.004(A). A defendant charged with CSC-I or with a violent felony under the conditions stated in MCR 6.106(B)(1)(a)(ii), who is denied pretrial release as provided in MCR 6.106(B)(1), must be afforded a trial within 90 days after the date of the court’s order denying pretrial release, excluding delays attributable to the defense, unless the court immediately schedules a hearing and sets an amount of bail. See MCR 6.106(B)(3).
2.Victim’s Right to a Speedy Trial7
In addition to a criminal defendant’s right to a speedy trial, certain crime victims have a right to a speedy trial. Const 1963, art 1, § 24. Victims entitled to a speedy trial include victims of child abuse, which includes sexual abuse or any other assaultive crime, victims of CSC-I, CSC-II, or CSC-III, and victims of an assault with the intent to commit criminal sexual conduct involving penetration or the intent to commit CSC-II. MCL 780.759(1).
1 See the Michigan Judicial Institute’s Domestic Violence Benchbook, Chapter 3, for a detailed discussion of pretrial release. Note: The discussion in this chapter applies to adult defendants. For information about the pretrial release of juvenile offenders, see the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 6.
2 See the Michigan Judicial Institute’s Domestic Violence Benchbook, Chapter 3, for more information about electronic monitoring devices.
3 See the Michigan Judicial Institute’s Domestic Violence Benchbook, Chapter 6, for more information about firearm restrictions.
4 MCL 765.6b(3) contains the language “carry or wear” when it refers to the court’s obligation to order a defendant to not purchase or possess a firearm if the court has also ordered the defendant to carry or wear an electronic monitoring device. A 2013 amendment of MCL 765.6b removed the word carry from MCL 765.6b(6) but did not remove the word from MCL 765.6b(3). See 2013 PA 54.
5 18 USC 922 has been adjudged unconstitutional as applied in a number of federal district courts and circuit courts of appeal. “An as-applied challenge ‘does not contend that a law is unconstitutional as written but that its application to a particular person under particular circumstances deprived that person of a constitutional right.’” United States v Mitchell, 652 F3d 387, 405 (CA 3, 2011), quoting United States v Marcavage, 609 F3d 264, 273 (CA 3, 2010). For cases in which 18 USC 922(g)(1) was held unconstitutional as applied, see e.g., Miller v Sessions, 356 F Supp 3d 472 (ED Pa, 2019) (even though plaintiff’s offense qualified for the prohibition in 18 USC 922(g)(1), the statute was unconstitutional as applied because plaintiff’s offense was not a serious crime, and the statutory prohibition could not withstand intermediate scrutiny). Though persuasive, Michigan state courts “are not . . . bound by the decisions of the lower federal courts[.]” People v Gillam, 479 Mich 253, 261 (2007).
6 For more information about a defendant’s right to a speedy trial, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 9.
7 For more information about a victim’s right to a speedy trial, see the Michigan Judicial Institute’s Crime Victim Rights Benchbook, Chapter 6.