How criminal sentences are determined

Oceana County Prosecutor Joe Bizon

Guest column by Joe Bizon. Oceana County Prosecutor.

HART — Have you ever wondered how sentences are determined? I would like to take this opportunity to explain the process.

Sentences in criminal cases are determined from the Michigan Sentencing Guideline Manual. This manual is issued by Michigan Judicial Institute and adopted by the Michigan Legislature.

In order to be charged with a crime, a person must (allegedly) engage in conduct that meets the definition of a crime that has been defined by the state legislature. The legislature determines the title, elements and punishment of crimes. In order to charge a crime, the prosecutor must have probable cause to believe that a person engaged in the elements of the crime charged.

If a person is convicted either by a trial, or a negotiated agreement (a plea agreement) of a misdemeanor, then a judge can impose a sentence within the limits allowed by the legislature.

Misdemeanors commonly have penalties of up to 90 days, 93 days, or one year. However, there are some exceptions to this. If a person is convicted either by a trial, or a negotiated agreement (a plea agreement) of a felony, then the judge’s sentence is constrained or limited by the Michigan Sentencing Guidelines.

Prosecutors and judges do not get to arbitrarily assign sentences. Every crime in Michigan has a maximum sentence assigned by statute. Every felony crime is also assigned to a grid or class.  These grids range from A, the most serious, to H the least severe. There is also a separate grid for second degree murder. This will affect what sentence range a judge can use.

Across the top of this grid, we plot the score for each offender’s Prior Record Variables (PRV). This will include his or her record for high severity felony convictions and low severity felony convictions. Whether a felony is high or low severity is also determined legislatively not by the court or prosecutor. A defendant will receive points for felonies adjudicated as a juvenile, also separated into low and high severity. Misdemeanor convictions or adjudications are scored in the same category. A defendant also receives points (scores) for having an existing relationship to the criminal justice system, for example if the person is on probation, parole, or on bond at the time the offense is committed.

Lastly, if there is more than one charge, the person will receive some more points, but there is a maximum limit to this variable. Next, along the side of the grid, a defendant is assigned points for factors that were part of the crime. This is known as the Offense Variables (OV). There are 20 categories of OV, including, use of a weapon, possession of a weapon, injury to a victim, the number of victims, use of alcohol and drugs, the amount of damage or value of property stolen and other factors that may be present.

When all these factors are scored, we obtain a PRV column (vertical) and an OV row (horizontal), and where they meet we find a numerical range. This is a range measured in months and is binding on a judge unless there are factors that are substantial, and compelling, and not accounted for in the guidelines. The appellate courts have significantly limited judge’s abilities to depart from guidelines by declaring that most factors that are substantial and compelling are already accounted for in guideline scoring. With this scoring procedure, any number less than 12 months indicates county jail time.

If the number is over 12 months, then the person may be sentenced to prison. If the person is sentenced to prison, the judge determines the minimum sentence which must be within that calculated range; the defendant will serve that minimum sentence. In Michigan, this is known as truth in sentencing, a defendant sentenced to prison will serve every day of the minimum and is not afforded any good time credit. After serving their minimum sentence, they may serve up to their maximum, as determined by the statute, not the judge or prosecutor, at the discretion of Michigan’s Parole Board.

As an example: Assume you have an 18-year-old defendant who committed felonious assault (assault with a dangerous weapon). This is a felony punishable by up to four years in prison, and is scored on the “F” Grid. If this person had no prior record, and no other concurrent charges, they would be scored on the first PRV column. The facts of the case will determine the sentence. The use or possession of the weapon combined with any injuries or damage to the victim or property will affect whether the score is on the first through third rows. A likely score for this offender will be 0-3 months if there is little to no damage; 0-6 months if the damage or injuries are moderate; and possibly as high as 0-9 months. This offender will not likely be sent to prison, but rather will receive a county jail sentence.