Abstract thinking and lifetime electronic monitoring
From the October - November 2023, Criminal Defense Newsletter
Abstract thinking tends to be unhelpful at sentencing, and that’s especially true when considering the mechanics and actual impact of a sentence. Take, for example, lifetime electronic monitoring, where the penalty goes beyond the mere status of being surveilled. Lifetime monitoring has real-world consequences that include hardware attached to the body, hardware that can limit movement and travel, hardware that must be maintained and charged daily, and a monthly cost of $60.(Endnote 1) And yet we often treat lifetime monitoring as a mere status without significant personal consequences. How can that be?
In the recent case of People v Pendergrass, ___ Mich App ___ (Docket No. 362218, 8/24/23), the Court of Appeals affirmed a trial judge’s amendment of the sentence one month after sentencing to add lifetime electronic monitoring. The penalty was not discussed at sentencing, not mentioned in the presentence report, and added without notice to the parties (although it was mentioned during the plea hearing). The Court of Appeals agreed that this was a substantive amendment that violated MCR 6.429(A), a court rule that allows trial court correction of an invalid sentence within six months of sentencing if the court first offers the parties an opportunity to respond. The Court of Appeals found the lack of notice “harmless,” however, because the penalty was mandatory. (Endnote 2) In addition, the Court saw no need for a resentencing.
The decision is questionable on several legal grounds, but it also reflects a near cavalier attitude toward a significant penalty. As the Michigan Supreme Court explained in People v Cole, 491 Mich 325, 337-338 (2012), lifetime monitoring involves “wear[ing] a device and be[ing] electronically tracked” until “the individual’s death.” And as the Michigan Department of Corrections warns, it comes with a substantial cost to the individual: $18,000 over the course of 25 years (more for a longer period). It is not an inconsequential penalty.
And yet its treatment in the new Pendergrass case is surprisingly superficial. The Court of Appeals found no need for a remedy – a decision that appears to conflict with People v Comer, 500 Mich 278 (2017). In Comer, the trial judge ordered lifetime electronic monitoring 19 months after sentencing and without motion of the party (something the court rules did not then allow). The Supreme Court vacated the monitoring condition and remanded for reinstatement of the original judgment off sentence because nothing authorized the trial judge’s sua sponte effort to amend an invalid sentence. In other words, the monitoring condition was lifted.
The Pendergrass decision also conflicts with the remedy offered for procedural violations of the Sex Offender Registration Act (SORA laws share similar goals and target similar offenders as the lifetime electronic monitoring laws). In two cases, one issued by the Supreme Court and one by the Court of Appeals, the appellate courts found error in the untimely addition of sex offender registration to a sentence and simply vacated that condition of the sentence/judgment. See People v Lee, 489 Mich 289 (2011), and People v Nunez, 342 Mich App 322 (2022). The untimely and/or procedurally incomplete registration simply nullified the condition.
Even looking at remedy from a broader perspective, the Pendergrass decision conflicts with what has generally been the remedy when there is a material alteration of a sentence. A mandatory minimum term is never added without a resentencing. See e.g., People v Clark, 185 Mich App 127 (1990) (resentencing ordered in response to prosecutor’s appeal where trial court did not have substantial and compelling reasons to depart from mandatory minimum term). A substantive mistake that changes a concurrent sentence to a consecutive sentence almost always requires a resentencing. See People v Thomas, 223 Mich App 9 (1997) (improper to convert concurrent sentences to consecutive without a resentencing). And a court may not convert an improper life sentence to a term of years without a resentencing. See People v Phaneuf, 478 Mich 862 (2007) (trial court erroneously changed sentence of 18 years to life to a term of years without resentencing with defendant present). Why should a court be able to add lifetime electronic monitoring – a significant condition of the sentence with a substantial cost ($18,000 over the course of 25 years) – without a resentencing?
That lifetime monitoring is a mandatory condition does not answer the question of remedy. Moreover, thinking about lifetime monitoring in the abstract – that it is a required condition of the sentence and merely involves electronic surveillance – misses the human nature of sentencing and the real-world consequences of a lifetime of hardware attached to the body, daily maintenance, a monthly cost, and impaired personal liberty.
Anne Yantus
Michigan Sentencing PLLC
Copyright Anne Yantus 2023
Anne Yantus is a sentence consultant working with attorneys to promote more favorable sentencing out-comes. 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 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, the author is not able to respond to pro bono requests for assistance or analysis of individual fact situations.Endnotes
2. Lifetime electronic monitoring is mandatory for all first-degree criminal sexual conduct convictions and for convictions of second-degree criminal sexual conduct involving a victim under 13 (offender 17 or older) and the imposition of a prison sentence.
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