Michigan Sentencing Guidelines Ruled Unconstitutional

The Michigan Supreme Court, in a lengthy opinion, recently ruled that the Michigan Sentencing Guidelines were unconstitutional. The ruling was essentially predicated on the notion that when judges score sentencing guidelines which set the minimum term on one's sentence, i.e. the amount of time the person is required to do (at a minimum), they often make a number of factual determinations based on a "preponderance" of the evidence. This simply means that the factual determination is probably true or more likely to be true, i.e. 51% to 49%. Findings by a jury during a trial are required to be made by a determination "beyond a reasonable doubt", an extremely high threshold, closer to 99%. The Court reasoned that since a judge's factual determinations often affect the length of a time a person actually spends in prison, this type of determination should be made by a jury and not a judge, and the factors should be determined beyond a reasonable doubt. In rendering this decision, the Michigan Supreme Court was following recent and as well as more dated rulings of the United States Supreme Court, primarily in federal cases. Applying the federal rationale to the Michigan scheme, the Michigan Supreme Court ruled that the Michigan Sentencing Guideline "scheme" was unconstitutional.

As a practical matter, the Michigan Sentencing Guidelines were created by the Michigan Legislature as a way of assuring that persons with similar prior records who commit a particular offense in a particular way, will receive approximately the same sentence, whether they are sentenced in Wayne County, or in a smaller county, such as Clinton County or Eaton County. Prior to the enactment of the Michigan Sentencing Guidelines, this was often not the case. As defense lawyers, it was often very concerning, particularly with African American defendants, that defendants would receive more significant sentences for crimes committed outside of Wayne County. However, the Michigan Legislature believed that persons in Wayne County should receive the same (more harsh) punishment as those in more remote counties. In practice, the Michigan Sentencing Guidelines provided for significant predictability in sentencing. Both prosecutors and defense attorneys would know approximately what the judge was likely to do in sentencing. Inasmuch as most cases are resolved with guilty pleas, predominantly through plea negotiations, those pleas were often based on what prosecutors and defense attorneys believe the outcome would be by way of sentencing. Although judges, in some cases, may not have been pleased with a sentence within the sentencing guidelines (more often a judge may want to go higher in the guidelines rather than lower), under the legislated Michigan Sentencing Guidelines scheme, it was very difficult for a judge to either go above or below the guidelines. Going above, of course, would result in an automatic appeal by the defendant, while going below would often result in an appeal by the prosecutor. Persons filing appeals in these situations typically won their appeal.

The Michigan Supreme Court has indicated that the Michigan Sentencing Guidelines will still have to be calculated in all cases where the Circuit Court is sentencing an individual on a felony charge (the potential punishment carries more than one year in prison). However, the guidelines are now advisory only. Given that they are not mandatory, the judge is not required to sentence within the guidelines, and going either above or below them will be easier and generally more problematic for defendants. The only limit on sentencing by the court is that the sentencing must be "reasonable." Presumably, this will be met by considering the factors already considered in the sentencing guidelines, and other factors dealing with both the individual's background and the particularities of the crime itself. The problem, however, is that by removing the predictability of a sentence, and thus, creating more uncertainty with potential sentences, more defendants may wish to go to trial, fearing that a judge might exceed the sentencing guidelines. This may place a greater burden on busy dockets, particularly in major urban areas. In its opinion, the Supreme Court suggested that some of that predictability may continue with the utilization of prosecutorial sentencing recommendations under People v Killibrew, where a defendant is allowed to withdraw their plea if a judge wants to go higher than the prosecutorial recommended sentence, or by way of Cobbs agreements under People v Cobbs, where the judge, the defendant and the prosecutor meet either in-chambers or on the record and reach an agreement as to a minimum sentence. Unfortunately, many judges, including many in Ingham County, do not believe in the utilization of a Cobbs hearing, and some are often inclined to not follow Killibrew recommendations. In particular, these judges are more likely to go outside the sentencing guidelines and may now feel more free to do so, given the current advisory nature of the guidelines scheme. The only upside for defendants is that there are a few judges who feel that the guidelines scheme was unreasonably harsh, particularly with nonviolent offenders in certain situations. These judges now believe that they will be in a position to impose sentences lower than the guidelines without fear of reversal by the appellate courts.

All in all, this author believes that, although the Supreme Court made the correct determination in its ruling, the practical impact will be particularly troublesome for defendants and their lawyers as they swim through the murky waters of the criminal justice system, seeking predictability in sentencing.

By George Zulakis, Attorney at Law