Sentencing trends, patterns and news

From the March 2025 Criminal Defense Newsletter
Offense variable 19

There is a pattern, one that is distinctly different from earlier times when nothing could be said to violate Offense Variable 19, where the appellate courts are chipping away at this variable. First, came the Hershey decision in 20131 (failure to pay child support does not amount to interference with the administration of justice), and then the Dixon case in 20222 (constructive possession of cell phone in prison does not necessarily threaten security of penal institution). The following year saw the Deweerd order,3 a decision that made a splash when it comes to a defendant’s assertion of innocence (generic denial of culpability offered to police at time of arrest did not constitute interference or attempted interference with administration of justice). And in early 2025, we have the Hines decision4 addressing drugs found on the defendant as he is booked into the jail (possession of meth at time of intake at county jail, without more, does not threaten the security of a penal institution). What might be the next successful challenge to OV 19?

Cruel or unusual punishment

The continuing trend when it comes to cruel or unusual punishment is relief granted to juvenile and young offenders. That should come as no surprise, although of the two most recent decisions extending the constitutional protection, one involves an adult. To provide context to the juvenile decisions, first there was the US Supreme Court decision precluding the death penalty for juvenile offenders in 2005,5 and then a decision preluding life without parole sentence for juveniles convicted of a non-homicide offense in 2010.6 From there, it was the landmark decision precluding mandatory life without parole sentences for juvenile homicide offenders in 2012.7 The Michigan Supreme Court extended that rule to 18-year-old offenders in 2022,8 and that same year found cruel or unusual punishment in the imposition of a parolable life sentence for a juvenile convicted of second-degree murder.9 In 2025, the Court of Appeals declared it cruel or unusual punishment to impose a sentence of 50 to 75 years for a juvenile convicted of second-degree murder.10 

Relief is rarely afforded to the non-youthful offender, although it is considered cruel or unusual punishment to apply sex offender registration to an adult convicted of a non-sex crime according to a 2024 Michigan Supreme Court decision.11 

Where can we expect the law to develop? In 2025, the Michigan Supreme Court is hearing cases challenging mandatory life without parole for 19 and 20-year-old offenders.12 It is also considering challenges to lifetime electronic monitoring, lifetime sex offender registration and the sex offender recapture provision, all as cruel or unusual punishment and not limited to juvenile offenders.13 But for the time being, the Court of Appeals has said that it is not cruel or unusual punishment to apply a twenty-five year mandatory minimum term for conviction of first-degree criminal sexual conduct involving a child under the age of 13 and an adult defendant.14 

Sentencing guidelines for second drug offenders

Perhaps the most surprising decision this year is one that extends the Lockridge15 decision to sentencing for second or repeat drug offenders. In the past, when sentencing for a second or subsequent drug offense under MCL 333.7413, there was an earlier published decision that held the sentencing guidelines range could be doubled.16 The Court of Appeals disagreed with that decision in the new Hines case,17 concluding that doubling of the sentencing guidelines range would violate Lockridge given the now-advisory guidelines. Going forward, the sentencing guidelines range is not doubled, although the trial court may double the maximum term and may impose an enhanced minimum term up to two-thirds of the maximum penalty, so long as it articulates adequate reasons that reference more than the fact of a prior drug conviction.18 When enhancing the minimum term and if it departs from the guidelines range, the trial court must of course articulate sufficient reasons and justify the extent of the departure.

All in all, the law moves forward.

Endnotes

1 People v Hershey, 303 Mich App 330 (2013).
2 People v Dixon, 509 Mich 170 (2022).
3 People v Deweerd, 511 Mich 979 (2023).
4 People v Hines, ___ Mich App ___; ___ NW3d ___ (2025) (Docket No. 363151).
5 Roper v Simmons, 543 US 551 (2005).
6 Graham v Florida, 560 US 48 (2010).
7 Miller v Alabama, 567 US 460 (2012).
8 People v Parks, 510 Mich 225 (2022).
9 People v Stovall, 510 Mich 301 (2022)
10 People v Eads (On Remand), ___ Mich App ___; ___ NW3d ___ (2025) (Docket No. 357332).
11 People v Lymon, ___ Mich ___; ___ NW3d ___ (2024) (Docket No. 164685).
12 People v Czarnecki, ___ Mich ___; 7 NW3d 556 (2024); People v Taylor, ___ Mich ___; 12 NW3d 443 (2024).
13 People v Kardasz, 513 Mich 1118; 6 NW3d 405 (2024); People v Martin, 513 Mich 1119; 6 NW3d 413 (2024); People v Ellis, ___ Mich ___; 13 NW3d 642 (2024); People v Klinesmith, ___ Mich ___; 13 NW3d 640 (2024) (Docket No. 164649).
14 People v Sattler-Van Wagoner, ___ Mich App ___; ___ NW3d ___ (2024) (Docket No. 362433), leave application pending.
15 People v Lockridge, 498 Mich 358 (2015).
16 People v Williams, 268 Mich App 416 (2005). See also People v Lowe, 484 Mich 718 (2009) (minimum sentence as well as maximum sentence may be doubled under MCL 333.7413).
17 People v Hines, supra note 4.
18 Id.

Anne Yantus
Michigan Sentencing PLLC
 
Anne Yantus is a sentence consultant working with attorneys to promote more favorable sentencing outcomes. Anne credits her knowledge of Michigan sentencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office. Following her time with SADO, Anne taught a criminal sentencing course at the University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC. Anne welcomes your Michigan felony sentencing questions and is happy to arrange a consultation where appropriate. 

Due to the volume of inquiries, Anne is not able to respond to pro bono requests for assistance or analysis of individual fact situations.