Michigan defendants face a new level of uncertainty when they walk into criminal court for sentencing. The state Supreme Court’s decision may have been based on defendants’ right to a jury trial, but it doesn’t protect them from judicial discretion.
On July 29, 2015, the Michigan Supreme Court struck down the state’s mandatory minimum sentencing guidelines. The Court said that the law violated criminal defendants’ right to a jury trial by requiring judges to consider facts not admitted by the defendant or found credible by the jury.
The Court’s solution was to make the sentencing guidelines advisory, and eliminate the requirement that judges state substantial and compelling reasons to deviate from the recommended sentence. In other words, it left sentencing up to the judge.
Here’s the problem: the Court still requires that the pre-sentence investigation be done and that judges consider the resulting report. That means judges are still handed the same information that the court found unconstitutional and told to think about it, they just aren’t required to use it.
But they will.
Most criminal cases today end in a plea agreement. That means that there is no jury, and the defendant only has to admit to the elements of his or her particular crime. Even in a jury trial, certain “character” evidence isn’t allowed (so that juries won’t convict defendants on the feeling they are “bad people” rather than the elements of the particular offense).That doesn’t give the judge much to go on in deciding whether the defendant is a good candidate for rehabilitation or likely to re-offend. Unless the defendant is pleading to a “Habitual” offense, the judge won’t have information from the defendant about his or her criminal history either.
Instead, this information comes out of the pre-sentence investigation report (PSI or PSIR), and any information provided by the criminal defense attorney in a sentencing memorandum – a document many lawyers don’t bother to file out of hesitance to have their client admit anything not on the record.
The bottom line is that judges will still be using facts not proven or admitted to determine a defendant’s sentence. The Michigan Supreme Court’s “cure” really only gives the defendant more leeway to appeal a sentence he or she deems “unreasonable.” That doesn’t keep defendants out of jail in the short-run, and it doesn’t stop judges from using false or incredible information to decide a defendant’s sentence.
What it does is put more responsibility on the criminal lawyer – to provide credible information in the client’s favor both in a sentencing memorandum and at the sentencing hearing, and to object to any sentence that seems unreasonable. It shifts the burden from the judge, who had to justify deviations, to the defendant who now has to prove the decision unreasonable. That doesn’t protect defendants’ 6th Amendment rights. It makes it easier for judges to issue inconsistent sentences.
Lisa Schmidt is a criminal defense attorney at Schmidt Law Services in Ferndale, Michigan. She represents defendants in everything from traffic tickets to criminal sexual conduct. If you are facing criminal charges, contact Schmidt Law Services today for a free consultation.