Michigan Sentencing Opened to Judicial Discretion

The Michigan Supreme Court decided yesterday that the state's criminal sentencing guidelines, which provide a mandatory punishment range, are unconstitutional and must now only be used in an advisory capacity.

Previously, the sentencing guidelines provided a mandatory range of punishment for a defendant based on the calculation of "Offense Variables" (OVs). Offense Variables are designed to take into account any additional facts of the crime that should increase the defendant's punishment, such as the number of victims, exploitation of vulnerable victim(s), psychological injury to victim(s), aggravated use of weapons, and other factors. The idea behind the use of Offense Variables is that the people who commit the worst crimes will receive a heavier punishment; however, those that commit crimes but cause less societal damage will be eligible for release sooner.

The guidelines system sought to ensure that defendants who acted similarly, committing similar offenses, would be subject to the same level of punishment. This way, whether a person received a lenient judge or a severe judge would not matter--both judges were forced to follow the same guidelines for punishment. In this way, the system also protected defendants from racial and/or socioeconomic bias. For example, prior to the enactment of the sentencing guidelines, a black defendant convicted in a predominantly white community would likely get a harsher sentence than a black defendant in a more diverse community. With the adoption of the sentencing guidelines, racial bias--even subconscious racial bias--was curtailed. Additionally, Judges were only allowed to deviate from the calculated range if they articulated substantial and compelling reasons for that departure, e.g. facts that were not adequately taken into account in sentencing but should affect the guidelines.

However, with yesterday's decision in People v. Lockridge, judges in Michigan will no longer be required to follow these sentencing guidelines. Following precedent set by the United States Supreme Court, the Michigan Supreme Court held that the sentencing guidelines violate defendants' Sixth Amendment rights because of the calculation of Offense Variables.

In sentencing, Offense Variables could be calculated based on facts found by the judge by a preponderance of the evidence. These facts, unlike the elements of a crime, did not have to be admitted by the defendant or found by the jury beyond a reasonable doubt. The preponderance of the evidence is a lower standard of proof, representing a more-likely-than-not likelihood that something occurred.

The Offense Variable calculation could raise the minimum of the sentencing guideline for a defendant. For example, instead of a sentence of 32 to 64 months, a defendant could be sentenced to 40 to 64 months because, though the jury did not consider it, the sentencing judge believed it was more-likely-than-not that X Offense Variable existed.

In its decision, the Michigan Supreme Court held that this situation, where a defendant's punishment is increased based solely on judicial fact-finding, violates the defendant's Sixth Amendment right to a jury. Going forward, sentencing courts must still consider the sentencing guidelines, but the guidelines are now merely advisory. Should a judge choose a punishment outside of the guidelines, the decision will be reviewed on appeal for "reasonableness."

The long-term effects of Lockridge remain to be seen. Without mandatory guidelines, some worry that disparity among sentences will increase with judicial discretion. The certainty and uniformity that the sentencing guidelines represented is now subject to considerable discretion by the judge. While judges may choose to continue to operate within the confines of the guidelines, they may also choose otherwise. Persons facing the criminal justice system who previously knew the range of sentence they could be given now face uncertainty.

However, the Lockridge decision may also represent an opportunity for low-level offenders whom the guidelines penalized "too harshly." Judges, no longer constrained by mandatory minimum sentences, can use their discretion to tailor the punishment to the crime. For low-level offenders, whom the guidelines system has traditionally treated severely, discretion may result in a more appropriate punishment. This, in turn, could have a positive effect on Michigan's $2-billion annual corrections budget and prison overcrowding issues.

Post-Lockridge, sentencing decisions will become harder to successfully appeal. It is more important than ever to get it right the first time. Contact an experienced criminal defense attorney as soon as possible to get the best results for your case.

By George Zulakis, Attorney at Law

& Elizabeth Kingston, Law Clerk