Legal Question in Criminal Law in Michigan

Re: How do you determine Felony or Misdemeanor charges?

I am an assistant prosecuting attorney. I have to make these decisions almost daily.

Sometimes, the facts allow us to issue only 1 charge. Example: a teenager has sexual conduct with a child under 13. If I want to issue Criminal Sexual Conduct, it has to be CSC 1st or CSC 2nd Degree (felonies), because the definitions of CSC 3rd and CSC 4th apply to victims who are 13-15 years old, or 16+ where the sexual conduct was forced. So, the legislature�s definition of the crime lets me only issue the felony (unless I want to issue a watered-down charge, like Assault, just to make it a misdemeanor).

Sometimes laws specifically limit a prosecutor�s options. Example: Retail Fraud (shoplifting) must be charged if the offense occurred in a store that was open to the public, and the item(s) stolen was merchandise offered for sale. I can�t charge a general larceny offense, like the felony of Larceny in a Building.

More commonly, prosecutors have discretion to issue any of a related list of charges. Some of the factors we consider:

1. the case facts (were people hurt/injured/killed? was the general public greatly endangered? etc.);

2. the suspect's prior criminal record & age (if the person has a clean record, I might issue a misdemeanor even though a felony could be issued);

3. what sentence do I want? The judge decides the sentence, but if I want a prison or a lengthy jail sentence, I'll issue a felony because the possible (and likely) incarceration is much greater than with misdemeanors;

4. the value of the item(s) stolen or damaged may dictate whether we can issue a felony. Most larceny, embezzlement and property damage charges are broken into 4 tiers: under $200 value = 93 day misdemeanor, $200-$999 = 1 year misdemeanor, $1,000-$19,999 = 5 year felony; $20,000 or more = 10 year felony. In calculating the value of the victims' losses, we can "aggregate" damage/thefts from a continuing course of conduct. Individual victims� losses can be joined; a charge can allege a course of conduct over a period of time against a single victim (embezzlement), or lump together losses caused in a single incident against several victims (one night�s neighborhood property destruction spree). If the suspect has a prior conviction for that kind of offense, we can bump the charge to the next higher level.

Prosecutors don�t blindly issue the "highest charges possible". Every case is �screened� on a case-by-case basis. We must be mindful of the factors I've listed above, plus other intangible issues like whether charging a felony is �in the interests of justice�, whether the county's expenses for a felony prosecution (court-appointed attorney, tying up the resources of the circuit court judge and staff, etc.) merit charging a felony, etc.

Many prosecutor offices have written policies for issuing felonies, or require a supervising attorney's approval before issuance. Talk to your local prosecutor to see how he/she reviews such charge requests.