9.4Discretionary Conditions of Probation

“[T]he trial court has broad discretion in determining the conditions to impose as part of probation.” People v Breeding, 284 Mich App 471, 479-480 (2009), citing People v Oswald, 208 Mich App 444, 446 (1995); MCL 771.4. “Such discretion is obviously necessary to allow trial judges to tailor sentences to the differing circumstances of those convicted of crimes and to meet the requirement of individualized sentencing.” People v Peters, 191 Mich App 159, 165 (1991). Indeed, “[t]he conditions of probation imposed by the court under [MCL 771.4(2) and MCL 771.4(3)] must be individually tailored to the probationer, must specifically address the assessed risks and needs of the probationer, must be designed to reduce recidivism, and must be adjusted if the court determines adjustments are appropriate.” MCL 771.3(11). Additionally, the court must “consider the input of the victim,” and “specifically address the harm caused to the victim, as well as the victim’s safety needs and other concerns, including, but not limited to, any request for protective conditions or restitution.” Id.

MCL 771.3(2)(a)-(q) list discretionary terms and conditions the trial court may elect to impose, subject to MCL 771.3(11), discussed in the following subsections. In addition, subject to MCL 771.3(11), “[t]he court may impose other lawful conditions of probation as the circumstances of the case require or warrant or as in its judgment are proper.” MCL 771.3(3).

The court has discretion to impose, as applicable and subject to MCL 771.3(11), the probation conditions described in MCL 771.3(1)-(3) if entry of the judgment is deferred in the circuit court or if sentencing is delayed or entry of judgment is deferred in the district court or a municipal court. MCL 771.3(9); MCL 771.3(10).

“There is no ultimate catalogue of legal or illegal terms,” and the trial court must decide “whether there is a rational relationship between the restriction and rehabilitation.” People v Johnson, 92 Mich App 766, 768-769 (1979) (holding a condition requiring the defendant to cooperate in anti-drug efforts was lawful and rationally related to rehabilitation because it “would promote defendant’s withdrawal from the drug scene rather than impede it”) (citation omitted). See also People v Johnson, 210 Mich App 630, 634 (1995) (“[i]n setting additional conditions [under MCL 771.3(3)], a sentencing court must be guided by factors that are lawfully and logically related to the defendant’s rehabilitation”).

For example, a probation condition that defendant could not play college or professional basketball was unlawful where “no rational reason [was] suggested in justification,” and the Court concluded the restriction was “more likely to impede rehabilitation than promote it[.]” People v Higgins, 22 Mich App 479, 481-482 (1970).

Additionally, while MCL 771.3 provides a court broad discretion to impose conditions of probation, “provisions of the probation act that are inconsistent with the [Michigan Medical Marihuana Act (MMMA)] do not apply to the medical use of marijuana.” People v Thue, 336 Mich App 35, 47 (2021). “[A] condition of probation prohibiting the use of medical marijuana that is otherwise used in accordance with the MMMA is directly in conflict with the MMMA and is impermissible.” Id. at 37, 47 (reversing “the district court’s order denying defendant’s motion to modify the terms of his probation to allow him to use medical marijuana”).¹

A.Jail Time

The court may order the probationer to imprisonment in the county jail for a maximum period of 12 months or up to the maximum period of confinement allowed for the charged offense if the statutory maximum is less than 12 months. MCL 771.3(2)(a).

Additionally:

•the period of incarceration may be served at one time or in consecutive or nonconsecutive intervals, MCL 771.3(2)(a);

•the probationer may be allowed day parole as authorized under MCL 801.251 to MCL 801.258, MCL 771.3(2)(a);

•the probationer may be permitted to be released from jail to work at his or her existing job or to attend a school in which he or she is enrolled as a student, subject to MCL 771.3d and MCL 771.3e, MCL 771.3(2)(a).

• MCL 771.3d(1) provides that the court must not order release for work or school “unless the county sheriff or the [Department of Corrections] has determined that the individual is currently employed or currently enrolled in school,” and establishes requirements for ordering and providing this verification.

•MCL 771.3e(1) requires the court to order a probationer to wear an electronic monitoring device if the probationer was convicted of a felony and the court permits him or her “to be released from jail under [MCL 771.3] for purposes of attending work or school[.]” However, MCL 771.3e “applies only if the court has in place a program to provide for the electronic monitoring of individuals placed on probation that complies with the requirements of [MCL 771.3e].” MCL 771.3e(2).

•“[T]he meaning of the term ‘county jail’ used in [MCL 771.3(2)(a)] is narrow and does not include residential treatment facilities.” People v Chamberlain, 136 Mich App 642, 650 (1984).

B.Payment of Fines

The court may order the probationer to “[p]ay immediately or within the period of his or her probation a fine imposed when placed on probation.” MCL 771.3(2)(b).

MCL 771.3(2)(b) authorizes the imposition of a fine as a condition of probation, and the statute “does not restrict the amount of that fine.” See People v Oswald, 208 Mich App 444, 445 (1995). Accordingly, the Court rejected the defendant’s argument that the trial court was limited to imposing a fine no greater than the fine authorized by the statute he violated. Id. at 445-446 ($1,500 fine imposed as a condition of probation was valid despite fact that the underlying statute caps the allowable fine at $1000). But see MCL 769.1k(1)(b)(i) (giving the court discretion to impose “[a]ny fine authorized by the statute for a violation of which the defendant entered a plea of guilty or nolo contendere or the court determined that the defendant was guilty”).² 

C.Payment of Statutory Costs

The court may order the probationer to pay costs “limited to expenses specifically incurred in prosecuting the defendant or providing legal assistance to the defendant and supervision of the probationer.” MCL 771.3(2)(c); MCL 771.3(5).

A defendant may be ordered to pay the costs of prosecution and the costs of defense. People v Humphreys, 221 Mich App 443, 452 (1997). See also MCL 769.1k(1)(b)(ii)-(iii) (authorizing the imposition of various costs); MCL 769.1k(2) (allowing imposition of additional costs incurred in compelling the defendant’s appearance).³ MCL 771.3(5) does not authorize court costs. People v Butler-Jackson, 499 Mich 963, 963 (2016). However, court costs are authorized under MCL 769.1k(1)(b)(iii), which is effective until December 31, 2026.

For a detailed discussion of issues regarding costs ordered as a condition of probation, see Section 8.9(C).

D.Payment of Statutory Assessments

The court may order the probationer to: “Pay any assessment ordered by the court other than an assessment described in [MCL 771.3(1)(f) (describing the mandatory crime victim’s rights assessment)].” MCL 771.3(2)(d). See also MCL 769.1k(1)(b)(v).⁴

For a detailed discussion of issues regarding assessments ordered as a condition of probation, see Section 8.9(C).

E.Expense Reimbursement

The court may order the probationer to: “Reimburse the county for expenses incurred by the county in connection with the conviction for which probation was ordered as provided in . . . MCL 801.81 to [MCL] 801.93.” MCL 771.3(2)(p).⁵ See also MCL 769.1k(1)(b)(vi) (providing discretionary authority to order reimbursement under MCL 769.1f).⁶ MCL 769.1f requires that reimbursement ordered under MCL 769.1f must be included as a condition of probation. MCL 769.1f(5).

The Prisoner Reimbursement to the County Act (PRCA), MCL 801.81 et seq. MCL 801.83 states in relevant part:

“(1) The county may seek reimbursement for any expenses incurred by the county in relation to a charge for which a person was sentenced to a county jail as follows:

(a) From each person who is or was a prisoner, not more than $60.00 per day for the expenses of maintaining that prisoner or the actual per diem cost of maintaining that prisoner, whichever is less, for the entire period of time the person was confined in the county jail, including any period of pretrial detention.”

MCL 801.83(2) specifically states that reimbursement under the Prisoner Reimbursement to the County Act “may be ordered a probation condition entered pursuant to . . . MCL 771.3.”

State Correctional Facility Reimbursement Act (SCFRA), MCL 800.401 et seq. The SCFRA provides statutory authority to collect amounts owed by an offender using any appropriate legal action. See MCL 800.404a; MCL 800.405.

F.Wage Assignment

The court may order the probationer to “[a]gree to pay by wage assignment any restitution, assessment, fine, or cost imposed by the court.” MCL 771.3(2)(f).

G.Community Service

The court may order the probationer to “[e]ngage in community service.” MCL 771.3(2)(e).

H.Program Participation and/or Completion

The court may order the probationer to:

•“Participate in inpatient or outpatient drug treatment, or a drug treatment court under . . . MCL 600.1060 to [MCL] 600.1084.” MCL 771.3(2)(g).

•Note that a drug treatment court may accept participants from any other jurisdiction based on the participant’s residence or the unavailability of a drug treatment court in the jurisdiction where the participant is charged, if the defendant, the defendant’s attorney, the prosecutor, the judge of the transferring court, the judge of the receiving court, and the prosecutor of the receiving drug treatment court’s funding unit agree to the defendant’s participation in the drug treatment court. MCL 600.1062(4)(a)-(d). See Section 9.14(A) for more information on drug treatment courts.

•“Participate in mental health treatment.” MCL 771.3(2)(h).

•“Participate in mental health or substance abuse counseling.” MCL 771.3(2)(i).

•“Participate in a community corrections program.” MCL 771.3(2)(j).

•“Participate in a residential probation program.” MCL 771.3(2)(m).

•“Satisfactorily complete a program of incarceration in a special alternative incarceration unit as provided in [MCL 771.3b].”⁷ MCL 771.3(2)(n).

•Complete a high school education or the equivalent by attaining a general education development (GED) certificate. MCL 771.3(2)(q)

I.House Arrest and Electronic Monitoring

The court may order the probationer to:

•“Be under house arrest.” MCL 771.3(2)(k).

•“Be subject to electronic monitoring.” MCL 771.3(2)(l).

J.Protection of Persons

The court may order the probationer to “[b]e subject to conditions reasonably necessary for the protection of 1 or more named persons.” MCL 771.3(2)(o).

K.Conditions Regarding Good-Time Credits

“[T]he trial court erred in setting a specific term of imprisonment in the county jail, with a specific release date, as a condition of probation.” People v Cannon, 206 Mich App 653, 657 (1994). Specifically, that “condition violated [MCL 51.282(2) (entitling prisoners to good-time credit under certain circumstances)] because it prohibited defendant from obtaining good-time credit that he was lawfully entitled to earn.” Cannon, 206 Mich App at 657.

For detailed discussion of good-time credits, see Section 7.9.

L.Conditions Restricting Internet Use

No binding legal authority has directly addressed probation conditions restricting internet use. However, in Packingham v North Carolina, 582 US 98, 101, 109 (2017), the United States Supreme Court struck down a North Carolina statute that made it a felony for registered sex offenders to access certain “commercial social networking” websites, including Facebook and Twitter because it found the statute suppressed lawful speech in violation of the First Amendment. Specifically, the Court noted that “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment Rights.” Id. at 108. The Court specifically found it “unsettling” that “persons who have completed their sentences” were prohibited from using certain websites because of their status as convicted sex offenders. Id. While a person on probation has not completed their sentence, Packingham’s general holding that restrictions on internet use implicate First Amendment rights is instructive when imposing probation conditions restricting internet use. See id. at 107 (noting that “it can be assumed that the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor”).

For discussion of probation conditions restricting internet use, see People v Wilson, unpublished per curiam opinion of the Court of Appeals, issued July 27, 2017 (Docket No. 330799) (vacating a probation condition prohibiting the defendant from owning, possessing, or using any computer or device that can connect to the internet or residing at a residence where such a device is present without first getting written permission because it was overly broad and not tailored to the defendant’s rehabilitation). Note that unpublished opinions are not precedentially binding under the rule of stare decisis. MCR 7.215(C)(1).⁸

M.Probation Camp

“A person under 22 years of age who is convicted of a crime in this state for which a sentence in a state prison may be imposed may be required under a probation order to spend not more than 1 year of the probation period, as the court directs, in a probation camp made available to the court by the department of corrections.” MCL 771.3a(1).

MCL 771.3a(1) additionally provides:

•the Department of Corrections must provide prior consent for admission to probation camp;

•the Department of Corrections must have custody of the probationer for the period the court directs;

•escape from a probation camp is treated like an escape from a penal institution; and

•rule violations constitute sufficient grounds to revoke the probation order.

MCL 771.3a “does not restrict or limit the court’s jurisdiction to place a person on probation in another facility suitable and available to the court.” MCL 771.3a(1).

“The expense of transporting a probationer to and from the probation camp shall be borne by the county from which the probationer was committed to the department of corrections.” MCL 771.3a(1).

MCL 771.3a “does not apply to a person placed on probation under [MCL 771.1(3) or MCL 771.2(3)] or to a juvenile placed on probation and committed under [MCL 769.1(3) or MCL 769.1(4)] to an institution or agency described in the youth rehabilitation services act, . . . MCL 803.301 to [MCL] 803.309.” MCL 771.3a(2).

N.Special Alternative Incarceration (SAI) Units

“In addition to any other terms or conditions of probation provided for under [Chapter XI of the Code of Criminal Procedure], the court may require under a probation order that a person convicted of a crime, except a crime specified in [MCL 771.3b(17)⁹], for which a sentence in a state correctional facility may be imposed shall satisfactorily complete a program of incarceration in a special alternative incarceration unit, and a period of not less than 120 days of probation under intensive supervision.” MCL 771.3b(1).

The SAI units provide a program of physically strenuous work and exercise, modeled after military basic training. MCL 798.14(1). “A term of special alternative incarceration shall be served in the manner provided in the special alternative incarceration act, . . . MCL 798.11 to [MCL] 798.18.” MCL 771.3b(14).

“The court also may require the person to satisfactorily complete a local residential program of vocational training, education, and substance abuse treatment, pursuant to [MCL 771.3b(9) or MCL 771.3b(10)].” MCL 771.3b(1).

“In order for a person to be placed in a special alternative incarceration program, the person shall meet all of the following requirements:

(a) The person has never served a sentence of imprisonment in a state correctional facility.

(b) The person would likely be sentenced to imprisonment in a state correctional facility.

(c) The felony sentencing guidelines upper limit for the recommended minimum sentence for the person’s offense is 12 months or more, as determined by the department. This subdivision does not apply in either of the following circumstances:

(i) The person’s offense is not covered by the felony sentencing guidelines.

(ii) The reason for the person being considered for placement is that he or she violated the conditions of his or her probation.

(d) The person is physically able to participate in the special alternative incarceration program.

(e) The person does not appear to have any mental disability that would prevent participation in the special alternative incarceration program.” MCL 771.3b(2).¹⁰

Additionally, before a court can order a person to participate in an SAI program:

•the person must consent to placement, MCL 771.3b(6);

•“Special alternative incarceration can only be imposed as a condition of probation, and the statute permits a defendant to object to that condition even if he otherwise ‘accepts’ probation.” People v Bensch, 328 Mich App 1, 13 (2019) (noting there is no “conflict between the general rule that probation may be declined and a rule that even when a defendant ‘accepts’ probation, he or she may still be granted a right by statute to decline a specific provision of that probation”).

•a probation officer must complete an initial investigation establishing that the person meets the requirements of MCL 771.3b(2)(a)-(b), MCL 771.3b(4); and

•the person must not have been incarcerated in an SAI unit previously unless the person was returned to the court because of a medical condition existing at the time of the placement, MCL 771.3b(15)-(16).

Generally, placement in an SAI program cannot exceed 120 days. MCL 771.3b(8). Exceptions to this time period are set out in MCL 771.3b(8)-(12).

“Upon receiving a satisfactory report of performance in the program from the department of corrections, the court shall authorize the release of the person from confinement in the special alternative incarceration unit.” MCL 771.3b(13).

“The receipt of an unsatisfactory report shall be grounds for revocation of probation as would any other violation of a condition or term of probation.” MCL 771.3b(13).

A probationer is entitled to credit for time spent in an SAI program if probation is later revoked and he or she is sentenced to a term of imprisonment on the underlying crime. People v Hite (After Remand), 200 Mich App 1, 2 (1993). See Section 7.8 for a discussion of sentence credit.