Sentencing Guidelines
Summary: Michigan Sentencing Guidelines for felony convictions. Describes the purpose and how they are scored to give the judge an idea as the range of sentence that should be imposed.
The Michigan Sentencing
Guidelines were created by the state legislature to give judges a range on how
to sentence someone convicted of a felony. A lot of factors are considered and
weighed into the formula including the nature and type of offense(s) and your
past criminal history, if any. Before the guidelines were established,
sentencing was left to the discretion of the judge with no guidance on what
sentence to impose. In some extreme cases, the judge could impose anywhere from
county jail time to life in prison. The Michigan legislature created guidelines
not only to help judges determine what an appropriate sentence should be, but
to prevent potential judiciary abuse.
Before the sentencing guidelines,
the Michigan Supreme Court held in People v Coles that the appellate
courts could review a sentence for “abuse of discretion” that “shocked the
conscious.” This standard proved to be far too vague to have any meaningful
impact. Seeing the errors of their way, the Michigan Supreme Court held in the
1990 case of People v Milbourn that sentencing discretion would be
reviewed to determine whether a sentence was proportionate to both the offense
and the offender. Inbetween these decisions, Michigan's highest court
established a task force to consider developing sentencing guidelines. These
would be used to help determine an appropriate sentence and to give judges
guidance and to rein in judges who wished to impose the strictest and most
severe sentence possible regardless of the offense. After much debate and
revisions, the sentencing commission proposed a final set of sentencing
guidelines that were enacted and became law in 1998. Also included was a
provision stating that prisoners serve their minimum sentence before being eligible
for parole regardless of good behavior. This became known as the “truth in
sentencing” policy.
Scoring Variables
Crimes against persons are
treated more severely than crimes against property. Past criminal history is
taken into account as well. A measured weight is assigned to each of these
factors. The defendant’s past criminal history is scored for points in what is
called the Past Record Variable, or PRV. The current offense that the defendant
is convicted of is scored for points in the Offense Variable, or OV.
Past Record Variable (PRV)-- The
defendant’s criminal history is divided into seven categories including: high
severity felonies, low severity felonies, high severity misdemeanor
convictions, low severity misdemeanor convictions, defendant’s current
relationship with the criminal justice system if any (parole, probation), and
contemporaneous felony convictions.
Offense Variables (OV)-- There
are 19 possible offense characteristics such as if a weapon was used, was there
physical or psychological harm to the victim, exploiting a victim's
vulnerability, contemporaneous felony acts, continuing pattern of felonious
acts within five years, the value of the property taken.
The prior record level and
offense severity level create a sentencing grid with a minimum to maximum
sentence. For example, your grid might be 5-12 months which gives the judge a
range on which to sentence you.
Cell Types
There are three types of
sentencing cells: 1) Prison Cell—prison is required, 2) Intermediate-- precludes
a prison sentence, and 3) Straddle-- Either prison or alternative sanctions,
including jail, can be imposed.
In a straddle cell, the lower
limit must be one-year or less and the upper level must be more than 18 months.
Who Does the Scoring?
The Sentencing Guidelines Appear
for Circuit Court convictions in what is known as a Pre-Sentence Investigation
Report or a PSI. This is done by a probation officer which is an employee of
the Michigan Department of Corrections. They review the current conviction and
the past history of the defendant and conduct an interview with the defendant
for their side of the story. At the conclusion, the probation officer makes a
recommendation to the court as to what the sentence should be and the reasons
for that recommendation.
Does the Judge Have to
Sentence Within the Guideline Range?
The judges can sentence outside
the guideline range, but if a judge deviates upward, he must state “substantial
and compelling reasons” on the record. The phrase is a bit vague and undefined,
but the judge has to articulate what it is or what he believes it to be.
However, the departing sentence must still be proportionate to the crime and
the defendant, i.e. the punishment must fit the crime.
Guideline Range
The sentencing guideline range
gives the judge an idea as to what type of sentence to impose. The prosecutor
will usually argue for the defendant to be sentenced in the upper part of the
cell or sometimes they will ask the judge to sentence beyond the cell range.
The defendant usually argues to be sentenced in the lower part of the cell or
for intermediate sanctions, such as rehab, if applicable. Sentencing is a very
important phase and allocution can play a pivotal role which is why it is
important to bring out good factors that could persuade the judge to give you a
more favorable sentence and not just blindly adopt the recommendation of the
probation department or the prosecutor. It is also critical to carefully
evaluate the Pre-Sentence Report to make sure everything is scored correctly.