Written by attorney Jared Clayton Austin

Michigan Sentencing Guidelines

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.

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