7.8Sentence Credit¹

“Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.” MCL 769.11b.

•“[T]he primary purpose of the sentence credit statute is to equalize as far as possible the status of the indigent and less financially well-circumstanced accused with the status of the accused who can afford to furnish bail.” People v Prieskorn, 424 Mich 327, 340 (1985) (quotation marks and citation omitted). In light of the purpose of MCL 769.11b, “a showing that presentence confinement was the result of inability to post bond is an essential prerequisite to the award of sentence credit under the statute.” People v Whiteside, 437 Mich 188, 196 (1991). See also People v Allen, 507 Mich 597, 606, 613 (2021) (noting “individuals who are detained in jail for some reason other than the denial of or inability to furnish bond are not entitled to jail credit” and finding that a parolee is entitled to sentence credit when they are incarcerated and the Michigan Department of Corrections (MDOC) has not yet filed a parole detainer because “parolees who are not arrested or detained under MCL 791.238 or arrested under MCL 791.239 who spend time in jail because of the denial of or inability to furnish bond are entitled to jail credit until the MDOC files a parole detainer under MCL 791.239”).

Accordingly, MCL 769.11b only applies when the presentence incarceration is (1) for the sentencing offense, and (2) due to denial or inability to furnish bond. Whiteside, 437 Mich at 196; Prieskorn, 424 Mich at 340-341.

There are several circumstances under which a defendant is not entitled to sentence credit:

•Defendant incarcerated for unrelated offense. “[T]he sentence credit statute neither requires nor permits sentence credit in cases . . . where a defendant is released on bond following entry of charges arising from one offense and, pending disposition of those charges, is subsequently incarcerated as a result of charges arising out of an unrelated offense or circumstance and then seeks credit in the former case for that latter period of confinement.” Prieskorn, 424 Mich at 340. See also People v Bailey, 330 Mich App 41, 65 (2019) (holding defendant not entitled to credit for time served while jailed for offenses unrelated to the sentencing offense).

•Defendant already incarcerated. Where a defendant is serving time on a sentence and a subsequent offense is adjudicated during the incarceration, the defendant is not entitled to credit against the second offense for time served before sentencing because he or she was incarcerated and serving time on an unrelated offense. People v Givans, 227 Mich App 113, 125-126 (1997).

•Defendant serving consecutive sentence. A defendant is not entitled to credit for time served against a sentence that must run consecutively to a sentence the defendant was serving at the time of the subsequent offense. People v Conner, 209 Mich App 419, 431-432 (1995).² Time spent incarcerated while awaiting disposition of the subsequent offense is “presentence time served that [the defendant] was already obliged to serve under a prior sentence.” Id. at 431.

•Crime committed while on parole. “[T]he jail credit statute does not generally apply to parolees who commit new felonies while on parole[.]” People v Idziak, 484 Mich 549, 562 (2009).³ See also Allen, 507 Mich at 613 (“Idziak broadly stands for the proposition that once the parole officials properly invoke their statutory authority to detain a parolee, that parolee is not entitled to jail credit under MCL 769.11b”); People v Filip, 278 Mich App 635, 643 (2008) (holding “the incarceration of a parole detainee is not credited toward the new sentence”). However, a parolee is entitled to sentence credit for any time they spend incarcerated before the filing of a parole detainer. Allen, 507 Mich at 608.

•Dead time. Refuting the popular argument of recidivist parolees that time spent awaiting sentence on a new conviction is “dead” time, the Michigan Court of Appeals explained in People v Johnson, 283 Mich App 303, 312-313 n 4 (2009), that regardless of whether parole is revoked or not revoked, time served awaiting a subsequent conviction is credited toward the conviction for which the defendant was on parole. “If parole is revoked, the defendant is obligated to serve out the balance of the maximum sentence for the conviction that formed the basis for parole.” Id. at 311, citing MCL 791.238(5) and MCL 791.234. “If parole is not revoked, the defendant continues to accrue time toward his or her ultimate discharge for the conviction upon which the defendant enjoys parole.” Johnson, 283 Mich App at 311, citing MCL 791.238(6). “The only time a defendant stops accruing time toward his or her ultimate discharge from the Department of Corrections is when a parolee has a warrant issued for a parole violation and the parolee remains at large. After a warrant is issued, ‘[t]he time from the date of the declared violation to the date of the prisoner’s availability for return to an institution shall not be counted as time served.’” Johnson, 283 Mich App at 311, quoting MCL 791.238(2) (alteration in original). See also Allen, 507 Mich at 612 n 25 (holding “the period from the violation to the parolee’s capture . . . is considered ‘dead time’ that is not counted toward the parole violator’s original sentence”). Whether “dead time” occurs when “the MDOC takes no action to detain the parolee until after his or her arrest on charges” has not been decided by any binding caselaw. See id.

•Residential reentry program. People v Armisted, 295 Mich App 32, 50-51 (2011) (defendant was considered a parolee while he was in a residential reentry program, and accordingly, was not entitled to jail credit).

•Boot camp. A defendant is not entitled to credit for time spent in boot camp when the defendant’s participation in the program was not due to his being denied bond or being unable to furnish bond. People v Wagner, 193 Mich App 679, 682 (1992) (the defendant was sentenced after he failed to complete a boot camp program originally imposed in lieu of prison; he was not entitled to sentence credit for the time in boot camp because it did not result from a denial or inability to post bond).

•Tether program. A defendant is not entitled to credit for time spent in a tether program when the defendant’s participation in the program was not due to his being denied bond or being unable to furnish bond. People v Reynolds, 195 Mich App 182, 183 (1992).

•Rehabilitation program. A defendant is not entitled to credit for time spent in a drug rehabilitation program, even when participation in the program was a condition of probation, unless the defendant’s placement in the program was due to his or her inability to furnish bond. Whiteside, 437 Mich at 196-197. See also People v Scott, 216 Mich App 196, 199-200 (1996) (where a defendant’s placement in a treatment or rehabilitation facility is not due to his being denied bond or being unable to furnish bond, MCL 769.11b does not apply).

•Incarceration in other jurisdictions. MCL 769.11b does not require sentence credit “for time spent incarcerated in other jurisdictions, for offenses committed while [a defendant] was free on bond for the offense for which he seeks such credit, from the time that a detainer or hold either was or could have been entered against him by authorities in the jurisdiction where the defendant is to be sentenced.” People v Adkins, 433 Mich 732, 734 (1989). See also People v Patton, 285 Mich App 229, 239 (2009) (the defendant was “not entitled to sentence credit for time served from the date a detainer could have, or was, lodged against him,” because his incarceration in a federal penitentiary was not the result of his being denied or unable to furnish bond for the Michigan charge at issue).

•Federal supervised release. See People v Clark, 315 Mich App 219, 234 (2016) (rejecting the defendant’s argument that, because he committed the sentencing offense while serving a federal supervised release term under 18 USC 3583(a), he was entitled to sentencing credit “based on his being on supervised release or incarcerated for his federal convictions”).

A.Life Imprisonment Without Parole

“A defendant is entitled to credit for time served before sentencing [under MCL 769.11b] even if the defendant is sentenced to serve a mandatory term of life imprisonment without parole.” People v Seals, 285 Mich App 1, 18-19 (2009).

B.Double Jeopardy Considerations

The Fifth Amendment’s guarantee against multiple punishments for the same offense seeks to ensure “that the total punishment does not exceed that authorized by the Legislature.” People v Whiteside, 437 Mich 188, 200 (1991) (cleaned up). “Sentence credit under the double jeopardy clauses [(US Const, Am V; Const 1963, art 1, § 15)] is only required for confinements amounting to time spent ‘in jail’ as that term is commonly used and understood.” People v Reynolds, 195 Mich App 182, 184 (1992) (quotation marks and citation omitted).⁴ See also Whiteside, 437 Mich at 202.

A special alternative incarceration (SAI) unit was the equivalent of being in jail where its “purposes [were] both rehabilitation and incarceration,” and “[t]he discipline, regimentation, and deprivation of liberties are greater [at the SAI unit] than at any minimum security prison,” and it is enclosed by an 18-foot high barbed wire fence. People v Hite (After Remand), 200 Mich App 1, 3, 5-6 (1993).⁵ Compare Whiteside, 437 Mich at 202 (participation in private rehabilitation program was not the equivalent of being “in jail” where “[t]he purpose of such a program is treatment and rehabilitation, rather than incarceration”).

C.No Double Credit for Consecutive Sentences

A defendant is not entitled to “double credit” when a consecutive sentence is imposed. People v Cantu, 117 Mich App 399, 403 (1982). Any jail credit to which the defendant is entitled should be applied toward the first sentence of the consecutive sentences. Id. “In giving a defendant credit for time served, a court acknowledges that, for all practical purposes, the defendant has already served a portion of his sentence. It follows logically that the credit should be given on the first of any consecutive sentences.” Id. See also People v Watts, 186 Mich App 686, 689-690 (1991) (holding defendant was not entitled to double credit).

D.Sentence Reductions Due to Overcrowding

“[W]here a defendant is sentenced to probation, and the terms of probation include incarceration in the county jail, and the defendant thereafter violates probation and is sentenced to prison, he or she is not entitled to credit on his or her new sentence for any time by which his or her original incarceration in the county jail was reduced under MCL 801.57.”⁶ People v Grazhidani, 277 Mich App 592, 601 (2008). The Grazhidani Court explained:

“Obviously the days that defendant did not serve on his sentence because of his early release from the county jail under the jail overcrowding act are not time spent ‘in jail.’ Because we read Whiteside^[7] as concluding that the Legislature only intended to grant credit for time actually spent ‘in jail,’ we conclude that defendant is not entitled to credit for time that he otherwise would have spent in jail except for his early release under the jail-overcrowding act.” Grazhidani, 277 Mich App at 599.