When carefully and thoughtfully imposed, community service presents a win-win form of sentencing for the community and defendants convicted of low-level crimes. This form of sentence is especially relevant as district judges grapple with the March 2021 presumption against a jail and probation sentence for non-serious misdemeanors and circuit judges face similar focus on non-incarcerative options for intermediate sanctions under the felony sentencing guidelines. It may also be a good time to talk about community service in light of recent news reports of a unique form of community service ordered (and retracted) for retail fraud offenders in Grand Blanc, Michigan.

Community service as a sentence (or as part of a sentence) has been authorized by the Michigan Legislature for many years and in many circumstances. The list is extensive, but some examples include: it is required for most drunk driving violations, MCL 257.625; it may be used as an alternative sentence for hate crimes, MCL 750.147b(6); it is an option for non-serious misdemeanors where there is a rebuttable presumption against a jail or probation sentence, MCL 769.5(3); it is available as a condition of probation under MCL 771.3;(2)(e); and for some low-level felony offenses that fall within an intermediate sanction range of the legislative sentencing guidelines, community service – with or without probation – is an available sentence. MCL 769.31(b)(viii); MCL 769.34(4)(a).

There is no question that community service is recognized as a form of punishment, but it differs in ways from traditional punishment by the positive impact on the community. In many jurisdictions, offenders pick up trash, lend assistance at animal shelters, clean up public parks or work to improve local recreation centers.

Community service is not limited to public works, however, non-profits may benefit as well. One judge remarked that he was open to approving most any legitimate 501(c)(3) organization for community service purposes. From a defendant’s standpoint, many appreciate community service as a means to avoid jail time. The other potential benefit may be more nuanced, but there is the possibility of personal and sometimes professional growth. For some hate crimes, for example, community service may be employed as an “alternative sentence” that is “intended to enhance the offender’s understanding of the impact of the offense upon the victim and wider community.” MCL 750.147b(6). For other crimes, community service, if aligned with the defendant’s interests, may foster greater respect for the community while strengthening the defendant’s ties to the community. And the ideal form of community service might provide valuable work experience or professional contacts.

Judges, for their part, very likely appreciate the opportunity for creativity in sentencing. According to several recent news reports, a district judge in Grand Blanc, Michigan fashioned an unusual sentence in response to a rash of thefts from a local Walmart. The judge planned a day of community car washes to be performed in the Walmart parking lot for Walmart customers through the service of convicted retail fraud offenders. The project would give back to Walmart and its patrons in a positive way, with the district judge and other judges pledging to pitch in. Unfortunately, Walmart headquarters was not on board and the chief judge in Flint stepped in to cancel the event.

Although the project was scrapped, credit should be given to a judge willing to consider an innovative form of community service – and a willingness to work side by side with those he had sentenced. Other reported instances of unique community service projects (not necessarily in Michigan) include:

• Sentencing “graffiti bandits” to clean up graffiti;

• Sentencing drunk drivers to work at the morgue or for Mothers Against Drunk Driving;

• Ordering convicted executives to hire paroled felons for an established job training program at the company; and

• Ordering a defendant who had thrown a Chipotle burrito bowl at a server to work 20 hours per week for two months at a fast-food restaurant (Parma, Ohio).

Of course, care should be taken when imposing new forms of community service. Sentencing a first-time drunk driver to service at the morgue may be unnecessarily traumatizing. A judge should also consider safety and liability concerns, something raised with the Walmart Washes project. Judges may also need to obtain employer and occasionally union buy-in. Another important caveat has to do with supervision. Does the employer or non-profit take responsibility for tracking hours and reporting to the court? Or is a judicial review hearing necessary?

Perhaps the biggest concern for judges has to do with community service that is imposed without probation. In that setting, enforcement becomes an issue. How should a judge sanction a failure to comply? Should the heavy penalty of contempt be used? Are there options beyond probation or incarceration? See MCL 769.5(5) (court may impose an additional sentence for contempt for failure to comply, including jail or probation).

One final concern bears mention. There is a noted downside to ordering community service in lieu of payment of fines and costs. The privileged defendant, able to pay fines and costs, avoids forced labor while the poor (and often minority) defendant may be saddled with hours, weeks or even months of community service. A heavy community service burden may impair the defendant’s ability to hold full-time employment or attend school. Although there is no Thirteenth Amendment protection against involuntary servitude when it comes to “punishment for crime,” there are obvious concerns when imposing community service solely or primarily against the disadvantaged offender.

The obstacles mentioned above are not insurmountable and there are reasons to applaud the use of community service in Michigan. Defense counsel may wish to be pro-active in recommending community service opportunities that will benefit the defendant, and judges should be encouraged to consider innovative service that will benefit the community and the defendant. A thoughtful matching of service to the crime, the needs of the community and the circumstances of the defendant may result in a winning sentence.

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