As a Michigan Criminal Sexual Conduct Defense Attorney, a common question is "Can I get Probation for Criminal Sexual Conduct in Michigan?"
What most people mean when they ask this question is: "Just because I'm charged with Criminal Sexual Conduct, does that automatically mean I will go to Jail or Prison?"
Fortunately, the answer to the first question is "Possibly," and the answer to the second question is "No." This is because, if you are facing Criminal Sexual Conduct charges (CSC for short), your first order of business is to avoid a conviction. A CSC conviction happens in one of two ways, either:
- You take a plea deal, pleading either Guilty or No Contest to some or all of your original CSC charge(s), or reduced charge(s); or
- You take your case to trial and are found Guilty of at least one of the CSC charges you are facing.
Now that we've addressed what should always be the first priority whenever possible, we need to put the question of Probation for Criminal Sexual Conduct in the proper context. There are really two ways to interpret this question - some people simply want to know if Michigan law allows for Probation, rather than Jail or Prison, in a CSC case. But what other people may really want to know is, even if the law allows for it, whether or not Probation is actually a realistic possibility for them in their specific case; in other words, will they be able avoid Jail or Prison for CSC?
First, under the general Michigan Probation law, MCL 771.1, et seq., which was recently amended effective in 2020 and again in 2021, it states:
"In all prosecutions for felonies, misdemeanors, or ordinance violations other than Murder, Treason, Criminal Sexual Conduct in the First or Third degree, Armed Robbery, or major controlled substance offenses, if the defendant has been found guilty upon verdict or plea and the court determines that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant suffer the penalty imposed by law, the court may place the defendant on probation under the charge and supervision of a probation officer."
As you can see, this law specifically exempts both Criminal Sexual Conduct 1st Degree, MCL 750.520b and Criminal Sexual Conduct 3rd Degree, MCL 750.520d, as they are considered the two more "serous" out of the four Degrees of Criminal Sexual Conduct in Michigan, as they are based on actual "sexual penetration." The penalty for CSC 1st Degree in Michigan is up to LIFE. Seemingly, there is a good deal of healthy debate about whether this completely closes the door on Probation for those convicted of First Degree Criminal Sexual Conduct and Third Degree Criminal Sexual Conduct, but taking the above statute at face value, they are exempted.
RELATED: Learn more about the Sentence for Third Degree Criminal Sexual Conduct in Michigan.
However, just because a person is charged with a crime for which the law states they cannot receive Probation does not automatically mean that they will go to Jail or Prison if they accept a plea deal or are convicted at trial. It simply means that if they hope to get Probation, they'll need to plead to a lesser / different charge, or only be convicted of charges, perhaps lesser-included charges, for which Probation is an option at Sentence.
In terms of a plea deal, some ask "How do I know what my Sentence will be before I plead to Criminal Sexual Conduct?" There are two main ways to lock-in Probation as part of a deal before taking a plea. One of them is by way of a "deal" with the Judge called a "Cobbs Agreement" or "Cobbs Evaluation," and the other is by way of agreement with the Prosecution, referred to as a "Sentence Agreement" or "Killebrew Agreement."
But even assuming you are Probation eligible, and there are many factors taken into account, there's still the question of how likely you are to get Probation for Criminal Sexual Conduct anyway simply due to the severity of all CSC charges. If you have either a Cobbs or Killebrew, above, assuming you don't ruin the deal by violating the terms and conditions of your Bond set at Arraignment, then you'll get the Probation or else you're entitled to withdraw your plea.
But what if there was no "deal"? What if you went to trial and were ground guilty of CSC? For example, you may have noticed that Second Degree Criminal Sexual Conduct, MCL 750.520c, is not expressly exempted from Probation. However, if you go to trial and are found guilty of Criminal Sexual Conduct 2nd Degree, the likelihood of getting only Probation is almost non-existent. More likely, you'll be immediately taken into custody benign Sentencing at a later date because the law requires it under MCL 770.9a, as all Degrees of CSC in Michigan are considered "assaultive crimes" under that law.
At Sentencing, the Judge will begin their analysis by applying the Michigan Sentencing Guidelines, and the Guideline ranges for most cases involving a conviction for Criminal Sexual Conduct 2nd Degree (as for all Degrees of Criminal Sexual Conduct except perhaps Fourth Degree CSC, see below) are going to be high enough that, even without a criminal history, Jail or Prison time is all but mandatory.
For Fourth Degree Criminal Sexual Conduct, MCL 750.520e, your chances are much better, because it is only a "misdemeanor" (actually, it's a "high-court misdemeanor" which is a category "in-between" felony and misdemeanor, but is procedurally treated like a felony), and the Sentencing Guidelines ranges are lesser, and may even begin at 0 months. Still, Criminal Sexual Conduct 4th Degree is considered an "assaultive crime" under MCL 770.9a, and therefore, if you are found guilty at trial, you'll be taken into custody pending Sentencing unless:
"...the trial court finds by clear and convincing evidence that the defendant is not likely to pose a danger to other persons."
Regardless, under MCL 770.9b, if you are "convicted of sexual assault of a minor and awaiting sentence," you "shall be detained and shall not be admitted to bail." Remember, all First Degree CSC and Second Degree CSC convictions in Michigan are, by their nature a "sexual assault of a minor." Even though being taken into custody immediately upon conviction doesn't necessarily determine whether or not Probation is possible, it's definitely something to think about when "Probation" really equals "no Jail" in the minds of most.