Given that time changes nearly everything, it may be time to review and update our vision of a probationary sentence. The Michigan Department of Corrections (MDOC) is exploring a new coaching model of supervision that will focus on support and guidance rather than mere rules patrol (although probationers will still be held accountable). If that sounds like an exciting development, keep in mind that it’s merely a pilot project in one county (see more below). But with the potential for change, it seems like a good time to explore the evolution of Michigan’s probationary sentence.

The inclination to spare an individual from the punishment prescribed by law existed long before the advent of probation. The nineteenth century was a different time with fewer rules and limited appeal, and in Michigan as well as elsewhere there was thought to be a level of “discretion” that judges could exercise at the time of sentencing. Sentences were occasionally suspended, either temporarily or indefinitely, for a variety of reasons including a miscarriage of justice, to pursue a pardon or reprieve, or to preclude execution of all or a portion of the sentence. This latter form of discretion, essentially non-enforcement of the sentence, was strongly condemned by the Michigan Supreme Court in People v Brown, 54 Mich 15 (1884), although it continued as a practice across the nation until held to violate the executive power in Ex Parte United States, 242 US 27 (1916).

The first true probationary sentence flowed from an 1878 Massachusetts statute that gave legal authority to what was being done informally through the work of a man named John Augustus. A Boston shoemaker by trade, Augustus strongly believed in rehabilitation and carefully selected clients for whom he would post bail and then keep them on the straight and narrow before sentencing. The practice met with some success, and the subsequent Massachusetts statute, authorizing probation in lieu of imprisonment, was the first of its kind in the United States.¹

Michigan followed suit in 1903 with a statute that was simple and straightforward. Probation was available for all crimes except where the court had no discretion in the sentence. Probation was also limited to those who had “never before been convicted in this State or elsewhere of a crime or misdemeanor.” No length or terms of probation were specified, and probation officers were given “the powers of a sheriff, and shall be allowed the same fees as sheriffs are allowed for traveling, and the sum of two dollars a day for making investigations and report.” There was no provision for paid supervision, however. ²

The 1903 statute was amended to some extent in 1905 and 1909,³ but more significant changes came about in 1913. Probation officers would be paid for supervision, the length of probation was limited to five years for a felony and two years for a misdemeanor, and the three standard conditions of probation were added (viz. not violate the law, report as directed, and not leave the state without permission).⁴

The Legislature toyed with the probation statute many times in subsequent years, with the most notable changes addressing who would be eligible for a probationary sentence. The original 1903 statute authorized probation for a first offender in situations where there was discretion in setting the sentence. By 1909, the statute retained the discretion-in-sentencing caveat but added, “Provided the defendant has never before been convicted in this State or elsewhere of a felony other than simply larceny . . . .”⁵ Four years later, the 1913 statute allowed probation when the judge possessed discretion to impose a fine or imprisonment except for “murder and treason.”⁶ By 1927, repeat felony offenders were excluded, and probation was unavailable for murder, treason, armed robbery, and breaking and entering an occupied dwelling in the nighttime. In 1945, the habitual offender exclusion was removed.⁷ In 1961, breaking and entering an occupied dwelling at night fell from the exclusion list.⁸ In 1978, major controlled substance offenses were added to the list. ⁹ And in 1982, criminal sexual conduct first and third degree were elevated to excluded offenses. ¹⁰

There was one additional area of legislative flux over the years: the length of incarceration that might be imposed with a probationary sentence. The 1903 statute did not address incarceration at all, but a limit of 60 days was added in 1931. ¹¹ That limit increased to six months in 1957, ¹² and it was later increased to 12 months in 1980 (the latter reportedly to alleviate prison overcrowding). ¹³

Review of the public acts tells little about the quality of probation supervision, however. Thankfully, a 1914 law review article fills in some gaps. As reported by an Ingham County circuit judge, the results from the original 1903 law – one that did not provide for paid supervision – were “very unsatisfactory.” “Occasionally a County Agent [compensated for the presentence investigation and report but not supervision] or some other person [a volunteer] could be found who would take the time to keep in touch with the young man under his charge. Then good results followed in most cases. But with most of the men placed on probation the care and supervision was nominal and the results were positively bad.” ¹⁴

Probation supervision undoubtedly improved over the years, especially once agents were paid for this task, and it’s interesting to note the Legislature’s attention to professionalism and misconduct in the early laws. Initially, there was concern over who could hold the position of probation officer. ¹⁵ As of 1913, probation officers were subject to an oath of office. ¹⁶ By 1927, the governor could remove officers for incompetence, misconduct or neglect.¹⁷ And in 1931, the Legislature mandated an annual conference of probation officers to further the goal of a uniform system of probation.¹⁸

Looking at probation in 2024, the MDOC has fully paid probation agents who prepare presentence reports, conduct supervision, score the sentencing guidelines, and ensure sex offender registration. When it comes to probation supervision in particular, the MDOC is exploring what may amount to a new and progressive form of supervision. According to Dr. Brian Lovins, president-elect of the American Probation and Parole Association and president of Justice System Partners, probation agents should act as coach rather than referee. The goal is to support and guide the probationer, with probation agents invested in the probationer’s success. Working with Dr. Lovins and Justice System Partners, the MDOC has started a pilot project to implement use of the coaching model in Macomb County. This project is part of a five-year grant that Justice System Partners secured from the Department of Justice to work in Macomb County, San Francisco, and Kansas.

Will the nature of probation supervision change? There’s certainly the potential for something positive to come from this. But whatever happens, it should be interesting to see how probation changes from the 2020s and beyond.

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

¹ History (uscourts.gov) (accessed July 16, 2024).

² 1903 PA 91. The presentence report was made in oral form to the judge as an initial practice, but provision for a written report, at least when a report was ordered by the court, was first mandated in 1913. 1913 PA 105. See also 1927 PA 175. By 1931, a written report was required in all felony cases. 1931 PA 308. See also People v McFarlin, 389 Mich 557 (1973).

³1905 PA 32 (providing for termination and discharge upon successful reformation among other changes); 1909 PA 124 (minor changes with the exception of repeat offender eligibility as discussed infra).

⁴ 1913 PA 105; Charles B. Collingwood, New Probation Law of Michigan, 13 Mich L Rev 20, 22-23 (1914).

⁵ 1909 PA 124.

⁶ 1913 PA 105.

⁷ 1945 PA 5.

⁸ 1961 PA 185, §1.

⁹ 1978 PA 77, §1.

¹⁰ 1982 PA 470, §1.

¹¹ 1931 PA 308; People v Sarnoff, 302 Mich 266 (1942).

¹² 1957 PA 72, §1.

¹³ 1980 PA 514, §1; People v Chamberlain, 136 Mich App 642, 649 (1984).

¹⁴ Collingwood, supra note 4, at 22.

¹⁵ 1913 PA 105 (probation officers could not be members of a regular police force, nor serve as deputy sheriff or constable); 1927 PA 175, ch. XI (cannot be member of regular police force, but may be deputy sheriff or constable).

¹⁶ 1913 PA 105.

¹⁷ 1927 PA 175, ch. XI.

¹⁸ 1931 PA 308, ch. XI.

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