Misdemeanor sentencing: What are the non-jail and non-probation options?

From the May 2025 Criminal Defense Newsletter

Attorneys who handle misdemeanor matters, even occasionally, may wish to brush up on the statutory distinction between serious and non-serious misdemeanors now that there are more limited sentencing options for the latter.

Last month, we looked at community service, but let’s expand the topic by exploring the options for a non-jail, non-probation sentence. As of March 2021, “[t]here is a rebuttable presumption that the court shall sentence an individual convicted of a misdemeanor, other than a serious misdemeanor, with a fine, community service, or other nonjail or nonprobation sentence.1 

The focus on a non-custodial, unsupervised sentence stems from a January 2020 report of the Michigan Joint Task Force on Jail and Pre-Trial Incarceration. The Task Force recommended no jail and no probation for “less serious” misdemeanors, and no jail and presumptive probation for certain low-level felonies. The recommendations were based on concerns with 1) the resources devoted to short jail sentences for misdemeanors, 2) the detrimental consequences for the detained individuals, and 3) the need for guidance and consistency when sentencing for felony offenses falling within an intermediate sanction range of the legislative sentencing guidelines.2 

Although probation would appear to be a light sentence, probation was not recommended for the less serious misdemeanors because “sentences to probation can also result in bed usage through sanctions for violations.”3 

The Task Force’s recommendations were viewed favorably by the Legislature and effective March 24, 2021, there is a rebuttable presumption against a jail and probation sentence for non-serious misdemeanors.4 In addition, the definition of intermediate sanction has been amended to remove jail as a recommended sentence for certain low-level felonies.5

That said, the statutes contain no absolute prohibitions on the imposition of jail or probation. For non-serious misdemeanors, the judge may depart by articulating “reasonable grounds” for a jail or probation sentence.6 For low-level felonies that fall within an intermediate sanction guidelines range, the judge may impose probation without a departure and may impose jail as a departure (with or with or without probation) by articulating “reasonable grounds” for the departure on the record.7 

What constitutes a serious versus non-serious misdemeanor?

The Legislature defined “serious misdemeanor” in MCL 780.811. Serious misdemeanors are what you might expect: Assault and Battery; Domestic Violence; Aggravated Domestic Violence; Assault with Serious Injury; Stalking; Indecent Exposure; Contributing to the Delinquency of a Child; Child Abuse Fourth Degree, Breaking and Entering; Illegal Entry; Intentional Aiming of a Firearm Without Malice; Discharge of a Firearm Intentionally Aimed with or without Injury; Using the Internet or Computer to Make a Prohibited Communication; Leaving the Scene of a Personal Injury Accident; Operating a Vehicle or Vessel While Impaired or Intoxicated (or Unlawful BAC) with Property Damage or Physical Injury; and a few other offenses.8 The list does not include drunk driving when there is neither property damage nor physical injury.

In addition, “serious misdemeanor” includes a violation of a local ordinance substantially corresponding to a listed serious misdemeanor offense. It also includes any non-serious misdemeanor where the original charge was a serious misdemeanor or punishable by more than one year and the original charge was reduced for purposes of a plea bargain. That’s right: If the original charge was a serious misdemeanor or a felony, the reduced charge is considered a serious misdemeanor.

There is no definition of “non-serious misdemeanor,” but anything that is not considered a serious misdemeanor (and is not a felony or punishable by more than one year) would appear to fall within the non-serious category. Common non-serious misdemeanors include:

• Disorderly Conduct
• Driving With Suspended License
• Retail Fraud
• Use of a Controlled Substance
• No Operators License
• Illegal Transport of Firearm
• Trespass
• Disturbing the Peace
• Open Intoxicants
• OWI (without property damage or physical injury)

Remember, the above offenses will be considered serious misdemeanors if the original charge was a felony or serious misdemeanor that was reduced for plea-bargaining purposes.

What are valid sentences for non-serious misdemeanors?

The Legislature did not specify what the presumptive sentence should be for a non-serious misdemeanor beyond “a fine, community service, or other nonjail or nonprobation sentence.” MCL 769.5(3). Nevertheless, it’s safe to say that a mandatory condition of any sentence is restitution (where applicable), and that holds true for non-serious misdemeanors under MCL 780.811 et seq. and MCR 6.610(G)(1)(e).

Other valid sentences may depend on the crime and offender, but it may help to review of the intermediate sanction statute to get a sense of what the Legislature has approved as a stand-alone, non-probation sentence for certain low-level felonies. The analogy is imperfect, felonies being much more serious than non-serious misdemeanors, but it may prove useful to consider the available sanctions for intermediate sanctions:

b) “Intermediate sanction” means probation or any sanction, other than imprisonment in a county jail, state prison, or state reformatory, that may lawfully be imposed. Intermediate sanction includes, but is not limited to, 1 or more of the following:

(i) Inpatient or outpatient drug treatment or participation in a drug treatment court under chapter 10A of the revised judicature act of 1961, 1961 PA 236, MCL 600.1060 to 600.1082.

(ii) Probation with any probation conditions required or authorized by law.

(iii) Residential probation.

(iv) Probation with special alternative incarceration.

(v) Mental health treatment.

(vi) Mental health or substance abuse counseling.

(vii) Participation in a community corrections program

(viii) Community service.

(ix) Payment of a fine.

(x) House arrest.

(xi) Electronic monitoring.

Common sense would suggest that the most restrictive intermediate sanctions, for example house arrest and global positioning system (GPS) tether (a form of electronic monitoring), would be excessive for many if not all non-serious misdemeanors. Yet, other options within the definition of intermediate sanction may provide some guidance as to what might be considered a valid sentence when probation and jail are off the table.

In practice, common sanctions for non-serious misdemeanors mimic several of the sanctions included in the definition of intermediate sanction:

  • Fines (and costs)
  • Drug treatment
  • Mental health treatment
  • Mental health or substance abuse counseling
  • Community
  • Electronic monitoring9 

A caveat as to electronic monitoring: it may depend on the crime as well as the type of monitoring. Drug testing is often imposed for drunk driving and controlled substance offenses, but it may be accomplished by electronic monitoring or in other ways. For a first-offense drunk driving (a non-serious misdemeanor where there is no property damage or physical injury), a judge may order random, in-person drug testing in lieu of electronic monitoring. Or the judge may order a portable breath testing device (a form of electronic monitoring) that avoids the inconvenience of having to report in person for drug testing. A more intrusive form of monitoring is the Secure Continuous Remote Alcohol Monitor (SCRAM), an electronic tether worn continuously on the body to test for alcohol through the pores of the body.

What are invalid sentences or likely invalid sentences for a non-serious misdemeanor (absent a departure)?

  • Jail and/or probation
  • A suspended jail sentence
  • Non-reporting probation
  • Any form of regular reporting to the court that mimics probation, especially if there is the threat of future incarceration for failure to comply
  • Counseling, treatment, testing or other requirements that approach or exceed two years (the maximum period of probation permitted for a misdemeanor)

What are suspicious or very rare sentences for non-serious misdemeanors?

  • House arrest (house arrest sharing similarities with jail)
  • GPS tether (unless the original charge was stalking or domestic violence or there is some good reason for a no-contact provision)
  • Excessive fines (prohibited by state and federal constitutions)
  • Exceptionally heavy community service requirement

How does a court enforce a non-probation sentence?

District judges often grapple with the question of enforcement when selecting a non-probation sentence given the lack of supervision over the individual. The Legislature appears to have acknowledged this problem by providing that a court may utilize its contempt powers to punish non-compliance with a non-jail, non-probation sentence, with available sanctions including a new jail or probationary sentence:

If the court finds that the sentenced person has not complied with his or her sentence, including a nonjail or nonprobation sentence, the court may issue an order for the person to show cause why he or she should not be held in contempt of court for not complying with the sentence. If the court finds the person in contempt, it may impose an additional sentence, including jail or probation if appropriate.10 Of course, if the threat of contempt is based on a failure to pay, there are additional requirements relating to manifest hardship and a good faith effort to pay.11 

In practice, some judges are hesitant to use their contempt powers, while others are not. One interim approach, used by at least one judge, is to show cause for contempt and then impose an extended period in which the individual must comply with the original sentence.

What is the case law on sentencing for non-serious misdemeanors?

Misdemeanor sentences are not regularly appealed and there is little appellate guidance on what a non-jail, non-probation sentence should look like. That said, the recent case of People of the City of Auburn Hills v Mason, ___ Mich App ___ (2024) (Docket No. 367687), bears mention. The Court of Appeals reversed a maximum jail sentence for driving with suspended license because the district judge had not adequately justified the departure. The Court warned that a district judge should consider the seriousness of the offense when departing, and it should consider whether there are “circumstances taking this particular case outside of the realm of the ordinary DWLS case.” Moreover, “if” the judge in question had a policy of imposing long jail and probationary sentences for DWLS (as alleged by the defense with citation to multiple cases), “it must cease this practice immediately[.]12 

Endnotes

1 MCL 769.5(3).
2 Michigan Joint Task Force on Jail and Pre-Trial Incarceration, Report and Recommendations of January 10, 2020, pp. 27-28.
3 Id. at 27.
4 MCL 769.5(3).
5 See MCL 769.31 and 769.34.
6 MCL 769.5(4).
7 MCL 769.34(4)(a).
8 Also included are: Threatening a DHS Worker with Physical Harm; Embezzlement of a Vulnerable Victim; Injuring a Worker in a Work Zone; Moving Violation Causing Death or Serious Impairment; and Selling or Furnishing Alcohol to a Person Under 21 With Serious Injury or Death. MCL 780.811(1)(a).
9 MCL 769.31(b).
10 MCL 769.5(5).
11 MCL 769.5(6); MCR 6.610(G)(1)(e); MCR 6.425(D)(3).
12 Id.

Anne Yantus

Michigan Sentencing PLLC

Anne Yantus is a sentencing consultant working with attorneys to promote more favorable sentencing outcomes. Anne credits her knowledge of Michigan sentencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office. Following her time with SADO, Anne taught a criminal sentencing course at the University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC. Anne welcomes your Michigan felony sentencing questions and is happy to arrange a consultation where appropriate. Due to the volume of inquiries, Anne is not able to respond to pro bono requests for assistance or analysis of individual fact situations.