7.13Lifetime Electronic Monitoring¹

The court must order lifetime electronic monitoring as part of the defendant’s sentence for certain first-degree criminal sexual conduct (CSC-I) and second-degree criminal sexual conduct (CSC-II) offenses. MCL 750.520n(1). Specifically, MCL 750.520n(1) provides:

“A person convicted under [MCL 750.520b] or [MCL 750.520c] for criminal sexual conduct committed by an individual 17 years old or older against an individual less than 13 years of age shall be sentenced to lifetime electronic monitoring as provided under . . . MCL 791.285.”

“[A] person convicted under [MCL 750.520b (CSC-I)], regardless of the ages involved, is to be sentenced to lifetime electronic monitoring”; the age limitation in MCL 750.520n(1) only applies to CSC-II convictions. People v Johnson, 298 Mich App 128, 136 (2012).²

“[L]ifetime electronic monitoring applies only to persons who have been released on parole or from prison, or both[.]” People v Kern, 288 Mich App 513, 519 (2010) (the defendant, who was sentenced to five years of probation, with 365 days to be served in jail, was not subject to lifetime electronic monitoring). See also MCL 791.285(1); People v Comer (Comer II), 500 Mich 278, 290 n 28 (2017) (noting that “the lifetime electronic monitoring requirement does not apply to individuals sentenced to imprisonment for life without the possibility of parole under [MCL 750.520b(2)(c)]”), superseded in part on other grounds by ADM File No. 2015-04, 501 Mich ci (2018).³

When statutorily required, lifetime electronic monitoring is “part of the sentence itself.” People v Cole, 491 Mich 325, 327 (2012).⁴ Accordingly, failure to include it in the judgment of sentence when it is required renders the sentence invalid. Comer II, 500 Mich at 292. See also People v Pendergrass, ___ Mich App ___, ___ (2023) (holding the trial court made a substantive mistake when it failed to include the statutorily required lifetime electronic monitoring in the judgment of sentence).

A.CSC-I Convictions

“Lifetime electronic monitoring must be imposed [as an additional punishment for a CSC-I conviction] (1) when a defendant receives a sentence of life in prison or any term of years under [MCL 750.520b(2)(a)]; or (2) when a defendant also receives a mandatory minimum sentence under [MCL 750.520b(2)(b)] because the crime was ‘committed by an individual 17 years of age or older against an individual less than 13 years of age.’ Thus, the Legislature has mandated lifetime electronic monitoring for all CSC-I sentences except when the defendant is sentenced to life without the possibility of parole under [MCL 750.520b(2)(c)].” People v Comer (Comer II), 500 Mich 278, 289 (2017).

B.CSC-II Convictions

In contrast to CSC-I convictions under MCL 750.520b, CSC-II convictions under MCL 750.520c(2)(b) only require lifetime electronic monitoring “when the offender was 17 years of age or older and the victim was less than 13 years of age.” People v Comer (Comer II), 500 Mich 278, 291-292 (2017) (concluding that, because “[no] contrary intention appears,” “the modifying phrase ‘for criminal sexual conduct committed by an individual 17 years old or older against an individual less than 13 years of age’ in [MCL 750.520n(1)] . . . is confined solely to the last antecedent,” and therefore, “the age limitation only applies to convictions for CSC-II”). See also People v Johnson, 298 Mich App 128, 136 (2012) (lifetime electronic monitoring properly imposed where defendant was convicted of CSC-I even though the victim was not less than 13 years because that age limitation only applies to CSC-II convictions).

C.Constitutional Issues

Lifetime electronic monitoring has been challenged on several constitutional grounds; specifically, that it constitutes cruel and/or unusual punishment, that it constitutes an unreasonable search in violation of the Fourth Amendment, and that it imposes multiple punishments for the same offense in violation of the prohibition against double jeopardy. People v Hallak, 310 Mich App 555, 560 (2015), rev’d in part on other grounds 499 Mich 879 (2016).⁵ However, the Court rejected all of the constitutional challenges to lifetime electronic monitoring. Id. at 567-583. For a detailed discussion of these constitutional issues, see the Michigan Judicial Institute’s Sexual Assault Benchbook, Chapter 2.