Mandatory Minimum Sentences in Michigan Criminal Sexual Conduct Cases

Michigan's criminal sexual conduct (CSC) statutes contain three mandatory sentencing provisions: a 25-year minimum for first-degree CSC by a person 17 or older against a child under 13; life without the possibility of parole for certain repeat first-degree offenses against a child under 13; and a minimum of at least 5 years for a second or subsequent first-, second- or third-degree offense.^[1][2][3]

This page gives each provision exactly as the statute states it, says who it applies to, and explains how a mandatory minimum fits with Michigan's sentencing system.

How Michigan sentences work, in brief

Michigan's sentencing guidelines recommend a range for the minimum sentence, and that range is advisory.^[6] A court may not set a minimum that exceeds two-thirds of the statutory maximum.^[7] See sentencing guidelines for CSC.

A mandatory minimum changes the first number. MCL 769.34(2)(a) says: "If a statute mandates a minimum sentence for an individual sentenced to the jurisdiction of the department of corrections, the court shall impose a sentence in accordance with that statute. Imposing a mandatory minimum sentence is not a departure under this section."^[4]

The three provisions at a glance

Provision	Offense being sentenced	Who it applies to	What the statute requires
MCL 750.520b(2)(b)	First-degree CSC	An individual 17 or older, against an individual less than 13[1]	Life or any term of years, but not less than 25 years[1]
MCL 750.520b(2)(c)	First-degree CSC	An individual 18 or older, against an individual less than 13, with a prior listed conviction committed against an individual less than 13[2]	Life without the possibility of parole[2]
MCL 750.520f	First-, second- or third-degree CSC	A person convicted of a second or subsequent offense[3]	A mandatory minimum sentence of at least 5 years[3]

Without one of these provisions, the statutory penalties are life or any term of years for first-degree CSC and not more than 15 years for second- and third-degree CSC.^[8][9][10]

The 25-year minimum: MCL 750.520b(2)(b)

The text is: "For a violation that is committed by an individual 17 years of age or older against an individual less than 13 years of age by imprisonment for life or any term of years, but not less than 25 years."^[1]

Three things about it are often misunderstood.

• It applies to first-degree CSC only. The provision is part of the penalty subsection of the first-degree statute.^[1] The second-degree statute has no 25-year provision; its age-based consequence for a child under 13 is lifetime electronic monitoring.^[9][11]
• It is a floor, not a fixed term. The Court of Appeals has said the phrase "does not limit to 25 years of imprisonment the maximum sentence a sentencing court can impose."^[12]
• Both ages matter. The actor must be 17 or older and the other person less than 13.^[1] Michigan counts age by the birthday rule.^[13]

The benchbook states that MCL 750.520b(2) sets the minimum statutorily authorized punishment and that a trial court is "without authority to impose" less.^[14] In People v Kreiner the trial court had ordered the prosecutor to re-offer a plea agreement carrying a ten-year minimum sentence on a charge of first-degree CSC with a victim under 13. The Michigan Supreme Court said the agreement "calls for a sentence that the trial court is without authority to impose" and sent the case to the Court of Appeals to address the appropriate remedy, if any.^[15]

The consequences continue after the minimum is served. Parole for a prisoner sentenced under this provision "shall only be granted for life".^[16] Lifetime electronic monitoring is also part of the sentence.^[17]

Life without parole: MCL 750.520b(2)(c)

The statute requires imprisonment for life without the possibility of parole where all of the following are true:^[2]

1. The current offense is first-degree CSC.^[2]
2. It was committed by an individual 18 years of age or older.^[2]
3. It was committed against an individual less than 13 years of age.^[2]
4. The person was previously convicted of a violation of MCL 750.520b, 520c, 520d, 520e or 520g committed against an individual less than 13, or of a violation of law of the United States, another state or a political subdivision substantially corresponding to one of those sections and committed against an individual less than 13.^[2]

Note what the list of priors includes. It reaches all four degrees of CSC and assault with intent to commit CSC, so a prior fourth-degree conviction involving a child under 13 counts.^[2] Note also the age threshold: 18 here, against 17 for the 25-year minimum.^[1][2]

The lifetime electronic monitoring clause refers to sentences under subdivisions (a) and (b), not (c).^[17] The Michigan Supreme Court said the same in People v Comer: because the monitoring clause omits any reference to subdivision (c), the requirement does not apply to a person sentenced to life without the possibility of parole under it.^[18]

The 5-year minimum for repeat offenses: MCL 750.520f

"If a person is convicted of a second or subsequent offense under section 520b, 520c, or 520d, the sentence imposed under those sections for the second or subsequent offense shall provide for a mandatory minimum sentence of at least 5 years."^[3]

An offense is a second or subsequent offense if, before the conviction, the actor "has at any time been convicted" under the first-, second- or third-degree statutes, or under any similar statute of the United States or any state for a criminal sexual offense including rape, carnal knowledge, indecent liberties, gross indecency, or an attempt to commit such an offense.^[19]

The benchbook quotes the Michigan Supreme Court in People v Wilcox: the statute authorizes a minimum sentence in excess of 5 years but does not mandate it, so the "mandatory minimum" is a flat 5-year term, and the sentencing guidelines apply to minimum sentences above 5 years.^[20] What counts as a prior, the absence of a notice requirement, and the interaction with the habitual offender statutes are covered in second or subsequent CSC offenses.

What is mandatory without being a "minimum"?

Several other rules remove sentencing options without setting a number of years.

• No probation for first- or third-degree CSC. The probation statute excludes criminal sexual conduct in the first or third degree.^[21] See probation and CSC convictions.
• Lifetime electronic monitoring. The court "shall" order it for first-degree CSC sentenced under subdivision (a) or (b), and for second-degree CSC where the contact was committed by an individual 17 or older against an individual less than 13.^[17][11] See lifetime electronic monitoring.
• The full minimum before parole. For a crime committed on or after December 15, 1998, a person imprisoned for first-, second- or third-degree CSC or assault with intent to commit CSC comes under the parole board's jurisdiction only after serving a period equal to the minimum sentence the court imposed.^[22]
• No medical parole for first-degree CSC. The parole board's power to grant medical parole does not extend to a prisoner convicted under MCL 750.520b.^[23]
• No community placement. A person sentenced to imprisonment for a CSC offense is not eligible for custodial incarceration outside a state correctional facility or a county jail.^[24]

Consecutive sentencing is different: it is discretionary. For first-degree CSC the court "may" order the term to be served consecutively to a term for another offense arising from the same transaction.^[25] See consecutive sentences in CSC cases and prison, parole and treatment.

Mandatory minimums and pleas

Before accepting a guilty or no-contest plea, the court must advise the defendant of "the maximum possible prison sentence for the offense and any mandatory minimum sentence required by law, including a requirement for mandatory lifetime electronic monitoring".^[5]

A judge's role in sentence discussions is limited. At a party's request, the judge may state on the record the sentence that appears appropriate on the information then available, and that preliminary evaluation does not bind the judge's ultimate sentencing discretion.^[26] In Kreiner, the plea agreement that the trial court had ordered re-offered carried a ten-year minimum sentence for first-degree CSC with a victim under 13, a sentence the Supreme Court said the trial court was without authority to impose.^[15] How charges and pleas are negotiated is covered in plea bargains in CSC cases and plea or trial.

What people get wrong

"Any CSC against a child means 25 years." The 25-year minimum is in the first-degree statute and requires an actor 17 or older and a person less than 13.^[1]

"25 years is the sentence." It is the least the minimum term can be; the maximum remains life or any term of years.^[1][12]

"A second CSC of any kind means 5 years." MCL 750.520f applies when the offense being sentenced is under the first-, second- or third-degree statutes.^[3]

"The judge can go lower if the case is sympathetic." The sentencing statute says the court shall impose a sentence in accordance with a statute that mandates a minimum.^[4]

"Life without parole applies to any second offense." It requires a current first-degree conviction, an actor 18 or older, a child under 13, and a prior listed conviction that also involved a child under 13.^[2]