Michigan’s sentencing shakeup.

August 3, 2015

MichigansupremecourtsealThe Mitten Memo. A blog by Nick Krieger.

The Michigan Supreme Court’s annual term concludes at the end of July.  Like its federal counterpart, Michigan’s high court frequently waits until the final days of its term to issue its most controversial rulings.

Of all the decisions released by the Michigan Supreme Court last week, perhaps none was as surprising and contentious as People v. Lockridge.

Michigan follows a system of indeterminate sentencing for most felonies.  In most cases, Michigan’s framework requires the trial judge to impose a term of incarceration ranging from a minimum sentence (which represents the defendant’s earliest parole-eligibility date) to a maximum sentence (set by the Legislature).

For instance, a person convicted of breaking and entering with the intent to commit larceny might be sentenced to a term of 3 to 10 years in prison.  Under such a sentence, the offender would be required to serve at least 3 years before becoming eligible for parole.  The parole board would have discretion to release the individual on parole anytime after 3 years.  Of course, the parole board would also have discretion to deny parole, and could keep the individual behind bars for as long as it believed necessary, including for the full 10 years.  In any case, however—regardless of the parole board’s decision—the offender would be released after serving 10 years in prison.

The maximum sentence—10 years in the hypothetical scenario above—is set by the Legislature and is prescribed by statute.  The trial judge has no discretion to alter the maximum sentence, and must impose the statutory maximum set by law.  For instance, when sentencing a defendant who has been convicted of breaking and entering with the intent to commit larceny, the judge is required to impose a 10-year maximum sentence irrespective of any mitigating or aggravating factors.

In contrast, determining the minimum sentence—3 years in the hypothetical scenario above—has always involved the exercise of some discretion by the trial judge.

Until last Thursday, trial judges across the state were required to follow a comprehensive system of statutory sentencing guidelines when calculating the minimum sentence in any given case.  The statutory sentencing guidelines required the judge to assign numerical “points” to a set of factors that pertained to the defendant’s criminal background (known as Prior Record Variables) and another set of factors that pertained to the severity and specific circumstances of the crime (known as Offense Variables).

After assigning numerical weights to each of the Prior Record Variables and Offense Variables, the judge would calculate the overall number of points.  Using a sentencing grid established by law, the judge would then determine a recommended minimum sentence range for the specific offender.  In the hypothetical scenario described above, for instance, imagine that the defendant had a total of 50 points for all Prior Record Variables and a total of 25 points for all Offense Variables.  The grid for Class D felonies (breaking and entering is a Class D felony) would set forth a recommended minimum sentence range of 19 to 38 months in prison.  The judge, within his or her discretion, would then select a minimum sentence falling within this recommended range, somewhere between 19 and 38 months.  In the hypothetical scenario above, the minimum sentence was set at 36 months (3 years).

Much of this changed on Thursday when the Michigan Supreme Court issued its decision in People v. Lockridge.  A majority of the justices ruled that the statutory sentencing guidelines are unconstitutional because they allow judges to set an offender’s earliest parole-eligibility date on the basis of the Offense Variables, which in turn are based on facts that are not proven to the jury beyond a reasonable doubt.  Purporting to apply the United States Supreme Court’s decision in a case called Alleyne v. United States, the Michigan Supreme Court majority concluded that permitting a trial judge to increase a minimum sentence on the basis of such factors violates an offender’s right to trial by jury under the Sixth Amendment of the United States Constitution.

It is doubtful that the decision in Lockridge will achieve the intended results.  Michigan’s statutory sentencing guidelines were enacted to promote uniformity in criminal sentences across the state.  Beginning last Thursday, however, that objective has gone out the window.  In striking down the mandatory sentencing guidelines, the Michigan Supreme Court has invited trial judges across Michigan to impose minimum sentences on the basis of their own personal beliefs, prejudices, and idiosyncrasies.  How does this promote uniformity in sentencing?  The answer is simple:  It doesn’t.

Nor does the Michigan Supreme Court’s decision in Lockridge protect the right to trial by jury.  Even assuming for the sake of argument that the Sixth Amendment requires the jury to find facts that are used to set a defendant’s earliest parole-eligibility date beyond a reasonable doubt (and a great deal of legal authority suggests that it does not), the Court’s ruling has in no way returned any power to the jury.  Indeed, rather than transferring power from the judge to the jury as the Sixth Amendment would appear to require, the Lockridge Court has given trial judges even more power by granting them unfettered discretion to choose a defendant’s earliest parole-eligibility date, wholly unconstrained by any guidelines or rules.  Quite simply, the jury plays no greater role in determining an offender’s minimum sentence after Lockridge than it did before Lockridge.  So, I ask, how has the purported Sixth Amendment violation been cured?

Our state legislators are finally beginning to recognize the need for sentencing and corrections reform.  But the Michigan Supreme Court’s decision in Lockridge will set back reform efforts considerably.  Furthermore, as Justice Stephen Markman explained in his dissenting opinion in Lockridge, the majority’s holding will “lead to a criminal justice process in which there will be considerably less predictability and certainty.”  Rather than being determined by reference to a set of statewide guidelines, criminal sentences will now be “a function of the personal attitudes and viewpoints of [Michigan’s] 586 judges.”

The decision in Lockridge is a sweeping solution to a nonexistent problem.  In courtrooms across the state, sentencing will be thrown into disarray as lawyers and judges struggle to understand the Court’s perplexing, unnecessary decision.  In the end, the only sure thing about Lockridge is that it will result in longer and more arbitrary prison sentences.

Nick Krieger is a graduate of Ludington High School, earned a bachelor’s degree from Michigan State University, and holds a law degree and master’s degree from Wayne State University Law School.  Nick works as an attorney for the Michigan Court of Appeals and owns a home in Ludington. The viewpoints expressed in The Mitten Memo are Nick’s own, and do not reflect the views of the Michigan Court of Appeals or Media Group 31, LLC and its affiliates: Mason County Press, Manistee County Press and Oceana County Press.  Contact Nick via e-mail at nickkrieger77@gmail.com or follow him on Twitter at @nckrieger.


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