There are three categories of statutory legal violations: misdemeanor crimes, felony crimes and civil infractions.[a] Every offense is specified in state law, administrative code or municipal ordinance, and the language of each ordinance or statute should detail the nature of the offense and the maximum penalty for violating it.
A misdemeanor is the more minor of the two main categories of crimes, and it is estimated that there are nearly 1,900 state misdemeanors on the books in Michigan. A misdemeanor is defined as a violation of a state law or local ordinance punishable by a fine or a short period of incarceration in a county jail — typically up to one year — or both.[b] They are the default definition for violations of state statutes: any infringement of state law that is not specifically defined as a felony or as a civil infraction is defined as a misdemeanor.[c]
Further, any prohibition defined in state law that does not include a specific penalty is treated as a misdemeanor.[d] Generally, misdemeanors are characterized as less serious crimes and carry a lighter penalties than felonies.
Misdemeanors contained in state statutes are enforced by local and state police and processed in district court.[e] The most common misdemeanors are things like low-level assault, vandalism and shoplifting.
State law enables municipalities to create their own misdemeanors using local ordinances.[f] These are enforced by local police agencies and prosecuted by a city or township attorney in municipal or district court. Local ordinance violations are commonly punishable by probation and up to 93 days in jail or up to a $500 fine or both.
Probation is also a common penalty for misdemeanors. It subjects misdemeanants to the supervision of the court for a set term of weeks or months. It may require them to observe curfews, participate in community service, undergo substance abuse or mental health treatment, or meet other requirements imposed by a judge and enforced by a probation officer.
A felony is defined as a crime punishable by incarceration for more than one year in state prison. Felonies are generally more serious offenses than misdemeanors. Estimates suggest that there are around 1,200 felonies on the books in Michigan. Felonies are distinct from misdemeanors, although some crimes — such as domestic abuse and drunk driving — can be prosecuted as misdemeanors for the first offense and as felonies for subsequent offenses. Felony convictions can result in a loss of rights even after a sentence has been served, such as the right to bear arms or obtain a state license to work in a certain occupation.[g]
There are six groups of felony crimes in Michigan. These groups organize felonies of a similar nature, and each group is further divided into eight classes of crimes based on the severity and maximum prison sentence that may be imposed for each class. However, felons rarely serve the maximum sentence associated with their crime.[h]
The six felony groups are:
- Crimes against a person, such as kidnapping, armed robbery and criminal sexual conduct;
- Crimes against property, such as retail fraud, forgery and larceny;
- Crimes involving a controlled substance, such as illegally selling prescription drugs and manufacturing controlled substances or imitations of controlled substances;
- Crimes against public order, such as identity theft, refusal to support spouse or children and falsely reporting a felony;
- Crimes against public safety, such as operating a vehicle while intoxicated and fleeing a police officer;
- Crimes against public trust, such as embezzlement and bribery.[i]
The eight felony classes used for the purposes of sentencing are not indicated in individual criminal statutes — in fact, the Legislature did not devise the crime classes; rather, they are a feature of the Michigan Sentencing Guidelines, which guide judicial decisions about appropriate sentences for a given crime.[j] A crime’s class indicates the maximum recommended penalty an individual should serve if convicted. Because the same type of crime can result in a varying degree of harm, many crimes span multiple classes. The eight classes of felony crimes are lettered as follows:
- Class A: Lifetime imprisonment
- Class B: Up to 20 years
- Class C: Up to 15 years
- Class D: Up to 10 years
- Class E: Up to 5 years
- Class F: Up to 4 years
- Class G: Up to 2 years
- Class H: Only jail “or other intermediate sanction”
In addition to prison time, felony sentences can include probation, fines — felony statutes contain the maximum fine that may be imposed for each crime — and restitution to victims.
Sentences for felonies are determined by taking a variety of factors into account, including the felony group, unique circumstances of the crime and the convict’s criminal history.[k] People convicted of a felony are investigated by the Michigan Department of Corrections prior to sentencing to help the judge determine an appropriate sentence. Depending on the aforementioned factors and the result of the MDOC investigation — detailed in a “presentencing report” — a judge may opt to order probation and allow the probationer to serve time under court supervision.[l]
Felons who are not given probation are sentenced to serve time in a state prison. Michigan uses a system called “indeterminate sentencing” to calculate an appropriate prison sentence. In most cases, the sentence is expressed as a term of years that range from a minimum sentence to a maximum sentence.[m] Generally, the minimum is set by a judge with help from the Michigan Sentencing Guidelines, while the maximum is established in the statute that defines the felony crime. However, Michigan law contains several “mandatory minimums,” which require judges to impose minimum sentences that are specified in law, rather than calculated to fit an individual defendant’s circumstances. For example, first-degree murder in Michigan carries a mandatory sentence of life in prison without the possibility of parole, while criminal sexual conduct involving a child carries a minimum sentence of 25 years in prison.
The Michigan Sentencing Guidelines provide a range of recommended minimum sentences for an offender by accounting for an individual’s criminal history and the severity and circumstances of his crime. It includes a set of charts which assign numerical values to these variables, resulting in an overall score. This score corresponds to a range of minimum sentences. Judges calculate the score and then select a minimum sentence that falls within the range provided by the guidelines.[n] However, the guidelines are advisory and judges have discretion to depart from the recommended range and impose a different minimum sentence than the one within the range indicated by the guidelines’ score.[o]
Michigan has a “truth in sentencing” law that requires felons to serve the entirety of their determined minimum sentence, without exception.[p] After that, convicts reach their “earliest release date,” upon which they become eligible for parole, which is a conditional release from prison, granted by the Michigan Parole Board.[q] The Board reviews parole-eligible prisoners’ cases regularly, but if a prisoner is not granted parole as a result of one of these reviews, they will serve the entirety of their maximum sentence behind bars.[r]
Civil infractions are statutory violations that are different from crimes. They are defined in Michigan as “an act or omission that is prohibited by a law and is not a crime under that law or that is prohibited by an ordinance and is not a crime under that ordinance, and for which civil sanctions may be ordered.”
While they are enforced by the police and adjudicated in court, people who commit civil infractions are not criminally guilty nor subject to incarceration. Nor do they necessarily enjoy many of the constitutional protections afforded defendants in criminal prosecutions, such as state-appointed counsel, the Fifth Amendment right to remain silent or the Sixth Amendment right to a speedy trial or jury trial.
Civil infractions are a relatively new invention: They were created by the Legislature in 1978 “as a practical resolution of the difficulties and costs involved in providing a right to trial by jury for violations of the motor vehicle code, which, prior to , were classified as misdemeanors.” Prosecuting and processing misdemeanor and felony crimes can be more time-consuming and expensive than enforcing civil infractions, which are usually resolved with fewer government resources. Since creating civil infractions to handle minor traffic offenses, the Michigan Legislature has expanded their use to include other types of violations and empowered municipalities to enact their own civil infraction ordinances.
Some common traffic civil infractions at the state level include texting while driving and disobeying traffic signals. Some state civil infractions exist for failing to immediately disclose a concealed weapon when stopped by a law enforcement officer, improperly displaying a boat registration decal, and failing to complete a safety course prior to operating an off-road vehicle. Municipal civil infractions could include littering, keeping an overgrown lawn or making excessive noise.[s]
Civil infractions are enforced by law enforcement officers, whose job it is to understand when a violation has occurred and whether the violation is a crime or a civil infraction. When an enforcement officer detects that a civil infraction has been committed, he initiates legal proceedings against the offender on behalf of the state or municipality that employs him by issuing the offender a citation, more commonly known as a ticket. A ticket is a legal document that serves two functions: it is a “complaint” that accuses the offender of violating a law or ordinance and a “summons” that requires him to appear in court to answer the charge.
Courts usually make it possible to answer the summons by filing forms in lieu of physically appearing in court. The accused may answer the complaint in one of three ways: 1) admit responsibility for the violation and pay a fine (with or without providing an explanation); 2) deny responsibility and request an informal hearing — without attorneys — to explain to a judge what happened and why the accused should not be held responsible; or 3) deny responsibility and request a formal hearing — with attorneys — to dispute the allegation. Hearings take place in the court with geographic jurisdiction — either a municipal court or a state district court — over the place where the alleged violation occurred.[t]
The strength of evidence, or “standard of proof,” that a judge needs to make a decision about whether an individual is responsible for a civil infraction differs from the evidence needed to assign guilt in a criminal case. When a person is accused of committing a crime, they are “innocent until proven guilty.” The prosecutor representing the government must prove “beyond a reasonable doubt” that the defendant committed the offense of which he is accused. He must also demonstrate that the defendant acted with “criminal intent” (the degree of intent necessary to result in a guilty verdict varies depending on the crime). For a finding of responsibility in a civil infraction action, however, the state’s burden of proof is lower — it must merely demonstrate that “the preponderance of the evidence” indicates that the accused was responsible for the alleged violation.
Most civil infraction adjudications do not require an inquiry into the accused’s state of mind, because most civil infractions are written so that it is possible to be found responsible even for unintentional violations — this is called “strict liability.” Strict liability offenses do not require the prosecution to prove that the accused intended to violate any law or rule. In these cases, the prosecution only has to demonstrate that the preponderance of evidence indicates that the accused violated the rule in order to hold him responsible.
A good example of a strict-liability offense is exceeding the speed limit in a vehicle. In determining whether to hold a driver responsible for speeding, the court would not ask whether the driver knew he was exceeding the speed limit or whether he meant to exceed it. The only relevant factor would be the fact that his vehicle was moving faster than traffic laws allow. If so, the court would hold the driver strictly liable for the civil infraction of speeding.
[a] Common law offenses are recognized but not specifically enumerated in statute.
[b] MCL § 750.8. Note that the fact that a crime is punishable by incarceration does not mean that all or even most misdemeanants will serve time. The phrase simply serves to distinguish a misdemeanor as a crime, which allows the government to incarcerate an offender, from a noncriminal civil infraction, which is not punishable by incarceration.
[c] MCL § 761.1(n) defines a misdemeanor as “a violation of a law of this state that is not a felony or a violation of an order, rule, or regulation of a state agency that is punishable by imprisonment or a fine that is not a civil fine.” The term “misdemeanor” is often used interchangeably with the term “minor offense,” which is defined by MCL § 761.1(m) as “a misdemeanor or ordinance violation for which the maximum permissible imprisonment does not exceed 92 days and the maximum permissible fine does not exceed $1,000.00.”
[d] See MCL § 750.9: “When the performance of any act is prohibited by this or any other statute, and no penalty for the violation of such statute is imposed, either in the same section containing such prohibition, or in any other section or statute, the doing of such act shall be deemed a misdemeanor.”
See Chapter III for more information.
[f] MCL § 117.3(k) empowers cities to adopt ordinances that correspond to state misdemeanors. Local governments are not allowed to pass ordinances that conflict with state law or that regulate an area that has been pre-empted by state law, such as the right to own a firearm. However, in cases where both a state law and a municipal ordinance appear to have been violated, such as a traffic incident, the law enforcement officer on scene must decide whether to process the violation under state or local law. MCL § 123.1102. For more information, see: “Municipal Prosecution: Distribution of Fines and Costs” (Michigan Municipal League, Nov. 2007), https://perma.cc/UFF3-UAP6.
[g] “State & Federal Rights & Privileges Lost upon Conviction of a Felony” (Michigan Department of Civil Rights), https://perma.cc/3KNF-MT79. Misdemeanors can also result in some loss of rights as well, though these are typically smaller and more closely tied to the nature of the offense. For example, someone convicted of a misdemeanor related to fraud, theft or drugs is ineligible for a medical marijuana facilities license for five years. MCL § 333.27402.
[h] In 2012, only 7 percent of Michigan inmates released from prison “maxed out,” or served their entire maximum sentence before being released. “Max Out: The Rise in Prison Inmates Releases Without Supervision” (The Pew Charitable Trusts, June 2014), https://perma.cc/4CKB-4N6R.
[i] MCL § 777.5. The Michigan Sentencing Guidelines also contain a chart that lists crimes along with their group, class and MCL reference. “Michigan Sentencing Guidelines Manual” (Michigan Judicial Institute, June 2016), https://perma.cc/X4FQ-Y7WS.
[j] According to the Michigan Sentencing Guidelines Manual, “There is no legislative authority for the division of felonies into crime classes, and therefore, there is no prohibition against assigning an offense to a crime class that is inconsistent with the statutory maximum penalty for that offense.” “Michigan Sentencing Guidelines Manual” (Michigan Judicial Institute, June 2016), https://perma.cc/X4FQ-Y7WS.
[k] MCL § 777.31-49a contains the variables that need to be considered for making sentencing determinations.
[l] For more information about the presentencing report, see: “Policy Directive: Pre- Sentence Investigation and Report” (Michigan Department of Corrections, Sept. 1, 2012), https://perma.cc/NXB8-6MBN.
[m] Sometimes offenders are sentenced for multiple crimes that were committed at once, or the same crime committed more than once during a single interval (e.g., two “counts” of breaking and entering). Concurrent sentencing is the norm in Michigan, so generally a defendant convicted of multiple counts or multiple crimes arising from the same incident will receive multiple prison sentences and serve the sentences concurrently (People v Alvarado, 192 Mich App 718 (1992); People v Lee, 233 Mich App 403, 405 (1999)). For instance, two counts of B&E resulting in two 5-10 year sentences served concurrently means that the offender will serve a maximum of 10 years. For concurrent sentences for two distinct crimes, he will serve the longer of the two sentences fully. But there are exceptions to this rule. Some criminal statutes specify that the sentences for certain crimes must be served consecutively, not concurrently, with a sentence for another crime. The common example is the crime of using a firearm during the commission of a felony. This crime carries a mandatory two-year prison sentence that must be served consecutively with the sentence for the underlying felony. MCL § 750.520b(3); MCL § 750.227b.
[n] Pursuant to MCL § 769.34, judges may not impose a minimum sentence that exceeds two-thirds of the maximum penalty contained in the criminal statute. (This is known as the “Tanner rule,” after the Michigan Supreme Court articulated it in People v. Tanner (People v Tanner, 387 Mich 683 (1972)). People v. Wright holds that a prison sentence must be truly indeterminate and concludes that the Michigan Legislature intends “to provide a meaningful interval between the minimum and maximum sentences imposed.” People v Wright 432 Mich 84 (1989).
[o] The guidelines were originally designed to be mandatory and executed that way, but became advisory after the state supreme court decided in People v. Lockridge that this system of mandatory minimum sentencing violates the Sixth Amendment to the U.S. Constitution (People v Lockridge, 498 Mich 358 (2015)). For more information, see: “Criminal Proceedings Benchbook: Volume 2” (Michigan Judicial Institute, 2018), 3–22, 3–23, https://perma.cc/9RYF-8F8B.
[p] Michigan’s “truth in sentencing” law was enacted in 1998. Previously, prison inmates could earn disciplinary or “good time” credits, which reward an inmate for good behavior by shortening his minimum sentence. “Truth in Sentencing Information” (Michigan Department of Corrections, 2018), https://perma.cc/Z3RT-JBTF.
[q] The board is a statewide body with the sole authority to make parole decisions for every parolable inmate in Michigan prisons. It is comprised of 10 members appointed by the director of the Michigan Department of Corrections. MCL § 791.235; MCL § 791.231a.
[r] Offenders serving mandatory life sentences can never be paroled without a commutation or pardon from the governor. Other life sentences allow for the possibility of parole after 15 years (if the crime was committed after Oct. 1, 1992; otherwise it is 10 years). MCL § 750.316(1); MCL § 750.204(2)(e).
[s] For more details about these and for examples of others, here is a list of civil infractions enforced by the city of East Lansing: “Civil Infraction Fines” (East Lansing City Hall, 2018), https://perma.cc/XC4R-465L.
[t] Informal hearings are normally held by a district court magistrate, and parties are not allowed to be represented by attorneys; formal rules of practice, procedure and evidence do not apply. Magistrates make a decision based on the preponderance of the evidence; appeals are heard by judges. Formal hearings are heard by judges and parties are entitled to counsel — but not court-appointed counsel. The rules of procedure and evidence apply, and decisions are reached based on the preponderance of the evidence. Michigan Court Rules Practice, 6th ed., vol. 5 (Thomas Reuters, 2017), 702.